# Braham Singh v. A.D.J. Moradabad & Ors

- **Citation:** (2015) 2 ILRA 586
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-08
- **Case number:** C.M.W.P. No. 18049 of 2015
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/braham-singh-v-a-d-j-moradabad-ors-43164
- **Pages:** 4

## Headnote

Constitution
of
India,
Art.-227Superintendent power of High Courtscope of interference-explained-no error
of law nor jurisdiction error-finding of
facts recorded by Court below regarding
default in paying rent-petition under Art.
226-not maintainable in view of 'Radhy
Shyam' case-not can be interfered by
exercising supervisory power also.
Held: Para-13
In the facts and circumstances of the case
in hand, I am of the opinion that the
Courts below have not erred in law or
committed any jurisdictional error in
holding that the petitioner defaulted in
payment of rent and had failed to pay the
arrears, accordingly, the petitioner is not
entitled to avoid decree of eviction on the
ground of default in payment of rent under
Section 20(4) of the Act, as admittedly the
petitioner had acquired another house in
the city itself. There is no flaw in decreeing
the suit on the ground of default.
Case Law discussed:
Civil Appeal No. 2548 of 2009; (2010) 8 SCC

## Text

586
 INDIAN LAW REPORTS ALLAHABAD SERIES
point of completion of continuous service
of 240 days by them in any calender year.
14. In view of the above discussions,
the impugned award cannot be sustained
and is, therefore, set aside.
15.
In result, writ petitions succeed
and are hereby allowed. The impugned
award dated 26.4.2011 passed by the
Presiding Officer, Labour Court, U.P.
Firozabad in Adjudication Case No. 08 of
2009, Adjudication Case No. 09 of 2009
and Adjudication Case No. 10 of 2009 are
hereby set aside. The matter is remitted
back to the concerned Labour Court for
decision afresh in accordance with law, as
expeditiously as possible, preferably within
a period of three months from the date of
production of a certified copy of this order.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.04.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
C.M.W.P. No. 18049 of 2015
Braham Singh
...Petitioner
Versus
A.D.J. Moradabad & Ors.
...Respondents
Counsel for the Petitioner:
Sri Susheel Kumar Tewari, Sri Shah O.P.
Agarwal
Counsel for the Respondents:
Sri Pawan Kumar Shukla
Constitution
of
India,
Art.-227Superintendent power of High Courtscope of interference-explained-no error
of law nor jurisdiction error-finding of
facts recorded by Court below regarding
default in paying rent-petition under Art.
226-not maintainable in view of 'Radhy
Shyam' case-not can be interfered by
exercising supervisory power also.
Held: Para-13
In the facts and circumstances of the case
in hand, I am of the opinion that the
Courts below have not erred in law or
committed any jurisdictional error in
holding that the petitioner defaulted in
payment of rent and had failed to pay the
arrears, accordingly, the petitioner is not
entitled to avoid decree of eviction on the
ground of default in payment of rent under
Section 20(4) of the Act, as admittedly the
petitioner had acquired another house in
the city itself. There is no flaw in decreeing
the suit on the ground of default.
Case Law discussed:
Civil Appeal No. 2548 of 2009; (2010) 8 SCC
329.
(Delivered by Hon'ble Suneet Kumar, J.)
1. Petitioner is a tenant in a portion of
the
building
situated
at
Mohalla
Kanoongoyan,
Near
Hathiwala
Mandir
Mandir, Moradabad. The respondent/landlord
after determination of tenancy by notice dated
13.12.2007 instituted a suit being Suit No. 2 of
2009 before the Small Causes Court at
Moradabad for eviction and on having
defaulted in payment of rent since 2005. The
parties contested the suit. The petitioner did
not dispute that he is the tenant of the
premises in question of which the respondent
is the landlord.
2. The petitioner contended that the
rent for the period 1 March 2005 to 31
July 2013 has been deposited in the Court
unconditionally, accordingly, petitioner
was entitled to the protection under subclause (4) of Section 20 of the U.P. Act
No. 13 of 1972, therefore, is not liable for
eviction on the ground of default. The
Court of first instance decreed the suit on
21 October 2014 holding the petitioner to
2 All] Braham Singh Vs. A.D.J. Moradabad & Ors.
587
be defaulter in payment of rent for a
period of more than 4 months. Further,
the petitioner had already acquired a
house in the name of his wife in Buddhi
Vihar, Moradabad which is within the
municipal limits of Moradabad,
the
defence under Section 20(4) of the Act to
avoid the decree of eviction would not be
available to the petitioner. The judgment
and order of the Trial Court has been
affirmed by judgment and order dated 2
March 2015 passed by the Revisional
Court.
3. The petitioner has impugned both
the above judgment and orders by means
of this writ petition.
4.
The learned counsel for the
petitioner has fairly accepted that the
petitioner has acquired a house in the name
of his wife within the city and, therefore, as
per the proviso to sub-section (4) of Section
20 of the Act, the petitioner cannot avoid
the decree of eviction, if passed, on the
ground of default in payment of rent, even
though he may have already deposited the
amount of rent and damages together with
interest on or before the first date of hearing
of the suit.
5. In view of the provisions of
Section 20(2) of the Act even if one of the
grounds provided therein for eviction of
tenant is proved, the tenant would be
liable for eviction unless prevented by any
law.
6. Section 20(2)(a) of the Act reads
as under:
"20.........................
(1)..........................
(2) A suit for the eviction of a tenant
from a building after the determination of
his tenancy may be instituted on one or
more of the following grounds, namely:
(a) that the tenant is in arrears of rent
for not less than four months, and has
failed to pay the same to the landlord
within one month from the date of service
upon him of a notice of demand.
7. The only argument pressed on
behalf of the petitioner is that the tenancy
of
the
petitioner
was
not
validly
determined by notice dated 13 December
2007.
8. In the instant case, the Courts below
have recorded that the tenancy of the
petitioner was validly determined by notice
dated 13 December 2007, which was
returned on 18 December 2007 with an
endorsement "refused to accept". The Trial
Court on considering the evidence, recorded
a finding that the notice was duly served. The
petitioner in cross-examination deposed that
he is a lawyer practicing in the High Court at
Allahabad and the notice was not served at
Chamber No. 191 which has been allotted to
the petitioner, but the Court below noted that
the petitioner was unable to explain that in
the affidavit filed in support of the written
statement, the petitioner had mentioned
Chamber No. 160 as his address at the High
Court, thus, holding that the petitioner had
made a false statement before the Court,
accordingly, it was held that notice was duly
served upon the petitioner.
9. The petitioner was a defaulter as
the petitioner did not deposit the payment
of rent, accordingly by a legal notice the
tenancy was terminated. Before the
Revisional Court only two points was
pressed by the petitioner: "(i) as to
whether the defendant/revisionist had
been under arrears of rent causing default
in payment of rent and being the tenant as
588
 INDIAN LAW REPORTS ALLAHABAD SERIES
hanging over? (ii) as to whether the
burden of proof of payment of rent rested
upon the shoulders of tenant-defendant or
upon the shoulders of landlord-plaintiff?"
10.
The Revisional Court concurred
with the finding of the Trial Court that the
petitioner had already acquired a residential
property in Buddhi Vihar, Moradabad in the
name of his wife, further, the petitioner had
made a false statement before the Court
regarding service of notice at the address
provided by the petitioner and had failed to
prove that the petitioner was making
payment of rent. Petitioner was unable to
give the details of the money order and the
date on which the rent was paid.
11.
The Courts below have returned
concurrent finding of fact that the notice was
duly served upon the petitioner but the
petitioner refused to accept the notice on a
false plea that it was sent on a wrong address.
The petitioner is not disputing that the notice
was sent to the address mentioned in the
affidavit filed in support of the written
statement. Regarding the payment of rent to
the respondent by money order, the petitioner
failed to produce any postal receipts of the
money orders nor he confirmed any date,
month or year of sending money orders. The
petitioner is a practicing lawyer at Allahabad
which is not being disputed but is retaining
the rented premises at Moradabad. It is not
disputed that the petitioner has already
acquired a premises in Moradabad in the
name of his wife.
12. The petition is reported to have
been filed under Article 226 of the
Constitution, which is not maintainable in
view of the decision rendered in Radhey
Shyam and another vs. Chhabi Nath and
others (Civil Appeal No. 2548 of 2009)
decided on 26th February, 2015 however,
the learned counsel for the petitioner would
submit that the petition has been filed under
Article 227 of the Constitution as is reflected
from the pleadings and the prayer. The scope
for entertaining a petition under Article 227
is limited and the Hon'ble Supreme Court in
the case of Shalini Shyam Shetty and another
vs. Rajendra Shankar Patil (2010) 8 SCC 329
culled out the following principles that
should be considered while deciding a
petition under Article 227:
62. On an analysis of the aforesaid
decisions of this Court, the following
principles on the exercise of High Court's
jurisdiction under Article 227 of the
Constitution may be formulated:
(a) A petition under Article 226 of
the Constitution is different from a
petition under Article 227. The mode of
exercise of power by High Court under
these two Articles is also different.
(b) In any event, a petition under
Article 227 cannot be called a writ petition.
The history of the conferment of writ
jurisdiction on High Courts is substantially
different from the history of conferment of
the power of Superintendence on the High
Courts under Article 227 and have been
discussed above.
(c) High Courts cannot, on the drop
of a hat, in exercise of its power of
superintendence under Article 227 of the
Constitution, interfere with the orders of
tribunals or Courts inferior to it. Nor can
it, in exercise of this power, act as a
Court of appeal over the orders of Court
or tribunal subordinate to it. In cases
where an alternative statutory mode of
redressal has been provided, that would
also operate as a restrain on the exercise
of this power by the High Court.
(d) The parameters of interference by
High Courts in exercise of its power of
superintendence have been repeatedly laid
2 All]
 Kamlesh Bahadur Gond Vs. State of U.P. & Ors.
589
down by this Court. In this regard the High
Court must be guided by the principles laid
down by the Constitution Bench of this Court
in Waryam Singh (supra) and the principles
in Waryam Singh (supra) have been
repeatedly
followed
by
subsequent
Constitution Benches and various other
decisions of this Court.
(e) According to the ratio in Waryam
Singh (supra), followed in subsequent cases,
the High Court in exercise of its jurisdiction
of superintendence can interfere in order
only to keep the tribunals and Courts
subordinate to it, `within the bounds of their
authority'.
(f) In order to ensure that law is
followed by such tribunals and Courts by
exercising jurisdiction which is vested in
them and by not declining to exercise the
jurisdiction which is vested in them.
(g) Apart from the situations pointed in
(e) and (f), High Court can interfere in
exercise of its power of superintendence when
there has been a patent perversity in the
orders of tribunals and Courts subordinate to
it or where there has been a gross and
manifest failure of justice or the basic
principles of natural justice have been flouted.
(h)
In exercise of its power of
superintendence High Court cannot interfere
to correct mere errors of law or fact or just
because another view than the one taken by
the tribunals or Courts subordinate to it, is a
possible view. In other words the jurisdiction
has to be very sparingly exercised.
(i) .................................
(j) .................................
(k) ................................
(l) .................................
(m) ...............................
(n) This reserve and exceptional power
of judicial intervention is not to be exercised
just for grant of relief in individual cases but
should be directed for promotion of public
confidence in the administration of justice in
the larger public interest whereas Article
226 is meant for protection of individual
grievance. Therefore, the power under
Article 227 may be unfettered but its exercise
is subject to high degree of judicial discipline
pointed out above.
(o)
An improper and a frequent
exercise of this power will be counterproductive and will divest this extraordinary
power of its strength and vitality.
13.
In the facts and circumstances of
the case in hand, I am of the opinion that the
Courts below have not erred in law or
committed any jurisdictional error in holding
that the petitioner defaulted in payment of
rent and had failed to pay the arrears,
accordingly, the petitioner is not entitled to
avoid decree of eviction on the ground of
default in payment of rent under Section
20(4) of the Act, as admittedly the petitioner
had acquired another house in the city itself.
There is no flaw in decreeing the suit on the
ground of default.
14. The writ petition is, accordingly,
dismissed
both
on
merits
and
maintainability.
15. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.04.2015
BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
C.M.W.P. No. 20050 of 2008
Kamlesh Bahadur Gond
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri L.P. Singh