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Wednesday, April 2, 2014

Art. 227 of Constitution of India - writ petition challenging the order and judgement of Appeal court in landlord tenant case - Apex court held that It is well settled that the High Court under Article 227 of the Constitution of India has jurisdiction to correct the error if apparent on the face of the record. But in the present case the respondents failed to bring on record as to what was the error committed by the District Judge in deciding the appeal. The claim of the appellant to use the premises forpersonal necessity is a question of fact which was decided by the District Judge on appreciation of evidence. There was no mixed question of law and fact involved in the case, much less question of law. The comparative hardship of tenant and landlord is a question of fact. In absence of any question of law involved with such facts, the High Court can not alter such finding under Articles 226 and 227 of the Constitution of India.= KALPESH HEMANTBHAI SHAH … APPELLANT VERSUS MANHAR AUTO STORES THROUGH ITS PARTNER & ORS. … RESPONDENTS = 2014 (Apr.Part) http://judis.nic.in/supremecourt/filename=41371

Art. 227 of Constitution of India - writ petition challenging the order and judgement of Appeal court in landlord tenant case - Apex court held that It is well settled that the  High  Court  under  Article  227  of  the Constitution of India has jurisdiction to correct the error if  apparent  on
the face of the record.  But in the present case the respondents  failed  to bring on record as to what was the error committed by the District Judge  in deciding the appeal.  The claim of the appellant to  use  the  premises  forpersonal necessity is a question of fact which was decided by  the  District Judge on appreciation of evidence.  There was no mixed question of  law  and
fact involved in the case, much less  question  of  law.    The  comparative hardship of tenant and landlord is a question of fact.  In  absence  of  any question of law involved with such facts, the High Court can not alter  such finding under Articles 226 and 227 of the Constitution of India.=

The appellant-original plaintiff is the landlord and the  respondents-
original defendants are the tenants with respect to suit premises  which  is
a shop admeasuring approximately 200 sq. ft. on  the  ground  floor  in  the
building named “Savita Sadan” bearing New Municipal House  No.  323  (2)  in
New Ward No.23, Mofusil Plot, Morshi Road, Amravati.

4.    After notice to the tenants to vacate the suit premises on the  ground
of personal use, in absence of any positive response,  the  appellant  filed
Small Cause Civil Suit No.16 of 2007 in the Court  of  Civil  Judge,  Junior
Division, Amravati seeking eviction of  the  respondents.  Trial court dismissed the suit =

    The
Appellate Court on appreciation of evidence came to  a  definite  conclusion
that the appellant is the landlord within the meaning  of  Section  7(5)  of
the Maharashtra Rent Control  Act  and  the  suit  shop  is  reasonably  and
bonafidely required by  the  appellant  for  his  use  and  occupation.  The
Appellate Court further held that it would  cause  comparative  hardship  to
appellant than the respondents if decree of eviction is refused.   In  light
of such observation and finding, the appeal was allowed and the respondents-
tenants were ordered to vacate the suit premises.

9.    The High Court by the impugned judgment held:

                 “It is not a case of landlord  stating  outright  that  the
      premises of his parents are not available to him, but of the landlord,
      who tried to explain the use of the premises by his parents and failed
      to show that all the rooms available on the ground floor are  used  by
      his parents.  Therefore, applying yardstick indicated by  the  Supreme
      Court in the case of Badrinarayan Vs.  Govindram,  namely,  degree  of
      urgency and intensity of the felt-need, it has to  be  held  that  the
      respondent had failed to dispel the case of the tenant that  he  would
      suffer greater hardship.”

   It is well settled that the  High  Court  under  Article  227  of  the
Constitution of India has jurisdiction to correct the error if  apparent  on
the face of the record.  
But in the present case the respondents  failed  to
bring on record as to what was the error committed by the District Judge  in
deciding the appeal.  
The claim of the appellant to  use  the  premises  for
personal necessity is a question of fact which was decided by  the  District
Judge on appreciation of evidence.  
There was no mixed question of  law  and
fact involved in the case, much less  question  of  law.    
The  comparative
hardship of tenant and landlord is a question of fact.  In  absence  of  any
question of law involved with such facts, the High Court can not alter  such
finding under Articles 226 and 227 of the Constitution of India.


 In view of the aforesaid finding, we hold that the High Court  had  no
jurisdiction under Articles 226 and 227 of  the  Constitution  of  India  to
interfere with or alter a finding of fact arrived at by an  Appellate  Court
deciding the question of personal necessity of a  landlord  in  a  landlord-
tenant dispute. For the reason aforesaid, the judgment passed  by  the  High
Court cannot be upheld.  We, accordingly, set aside  the  impugned  judgment
and decree dated 23rd February, 2010 and 1st October, 2010,  passed  by  the
High Court and restore the order passed by the Appellate Court. The  appeals
are allowed.
         2014 (Apr.Part) http://judis.nic.in/supremecourt/filename=41371
 SUDHANSU JYOTI MUKHOPADHAYA, KURIAN JOSEPH

                                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOs. 4266-4267 OF 2014
                (arising out of SLP(C)Nos.5990-5991 of 2011)


KALPESH HEMANTBHAI SHAH                        … APPELLANT

                                   VERSUS

MANHAR AUTO STORES
THROUGH ITS PARTNER & ORS.                    … RESPONDENTS


                               J U D G M E N T


Sudhansu Jyoti Mukhopadhaya, J.


      Delay condoned. Leave granted.

2.    These appeals have been preferred by  the  appellant-landlord  against
the judgment and decree dated 23rd  February,  2010  passed  by  the  Single
Judge of the High Court of  Judicature  at  Bombay,  Nagpur  Bench  in  Writ
Petition No.5521 of 2009 and the judgment  and  decree  dated  1st  October,
2010 passed by the Division Bench in LPA No.150 of 2010.

3.    The appellant-original plaintiff is the landlord and the  respondents-
original defendants are the tenants with respect to suit premises  which  is
a shop admeasuring approximately 200 sq. ft. on  the  ground  floor  in  the
building named “Savita Sadan” bearing New Municipal House  No.  323  (2)  in
New Ward No.23, Mofusil Plot, Morshi Road, Amravati.

4.    After notice to the tenants to vacate the suit premises on the  ground
of personal use, in absence of any positive response,  the  appellant  filed
Small Cause Civil Suit No.16 of 2007 in the Court  of  Civil  Judge,  Junior
Division, Amravati seeking eviction of  the  respondents.   The  respondents
filed their written statement denying the bonafide need  of  the  appellant.
Witnesses were examined and evidences were brought on  record.   Thereafter,
3rd Joint Civil Judge, Junior Division, Amravati  (hereinafter  referred  to
as, ‘the Trial Court’) dismissed the civil suit.

5.    Aggrieved by the order of  dismissal,  the  appellant  challenged  the
same in Regular Civil Appeal No. 140 of  2008  in  the  Court  of  Principal
District  Judge,  Amravati  (hereinafter  referred  to  as,  ‘the  Appellate
Court’).  On hearing the parties, the Appellate Court  vide  judgment  dated
31st October, 2009 allowed  the  appeal  and  directed  the  respondents  to
handover vacant  and  peaceful  possession  of  the  suit  premises  to  the
appellant.  The said judgment was challenged  by  the  respondents  in  Writ
Petition No.5521 of 2009 and the same was allowed by the High Court  by  the
impugned judgment dated 23rd February,  2010.   The  Letters  Patent  Appeal
preferred by the appellant against the said  judgment  was  not  entertained
being not maintainable by impugned judgment dated 1st October, 2010.

6.    Learned counsel for the appellant submitted that the High Court  under
Articles 226 and 227 of the Constitution of India  had  no  jurisdiction  to
sit in appeal and set aside the finding of facts arrived  at  by  the  Court
below.  It was not a second appeal preferred by the respondents, in fact  no
second appeal was  maintainable  against  the  Appellate  Court’s  order  in
absence of any substantial question of law.


7.    Per contra, according to  learned  counsel  for  the  respondents,  if
there are mixed question of facts and law,  the  High  Court  can  interfere
with the concurrent finding of facts  under Articles  226  and  227  of  the
Constitution of India.

8.    In the present case, on the question of reasonable and bonafide  need,
the Trial Court answered the issue against the appellant on the ground  that
the appellant failed  to  prove  his  requirement  of  suit  premises.   The
Appellate Court on appreciation of evidence came to  a  definite  conclusion
that the appellant is the landlord within the meaning  of  Section  7(5)  of
the Maharashtra Rent Control  Act  and  the  suit  shop  is  reasonably  and
bonafidely required by  the  appellant  for  his  use  and  occupation.  The
Appellate Court further held that it would  cause  comparative  hardship  to
appellant than the respondents if decree of eviction is refused.   In  light
of such observation and finding, the appeal was allowed and the respondents-
tenants were ordered to vacate the suit premises.

9.    The High Court by the impugned judgment held:

                 “It is not a case of landlord  stating  outright  that  the
      premises of his parents are not available to him, but of the landlord,
      who tried to explain the use of the premises by his parents and failed
      to show that all the rooms available on the ground floor are  used  by
      his parents.  Therefore, applying yardstick indicated by  the  Supreme
      Court in the case of Badrinarayan Vs.  Govindram,  namely,  degree  of
      urgency and intensity of the felt-need, it has to  be  held  that  the
      respondent had failed to dispel the case of the tenant that  he  would
      suffer greater hardship.”


10.   The question about maintainability of a writ  petition  under  Article
226 read with Article 227 of the Constitution of India against a finding  of
fact was considered by this Court in Mohd. Shafi v. Additional District  and
Sessions Judge (VII), Allahabad and others,  (1977) 2  SCC  226.     In  the
said case this Court held that in the case of  mixed  question  of  law  and
fact if the  High  Court  found  that  on  a  wrong  interpretation  of  the
explanation the matter has been decided, the  High  Court  can  correct  the
error and set aside the conclusion reached by the Subordinate Court.

11.   It is well settled that the  High  Court  under  Article  227  of  the
Constitution of India has jurisdiction to correct the error if  apparent  on
the face of the record.  But in the present case the respondents  failed  to
bring on record as to what was the error committed by the District Judge  in
deciding the appeal.  The claim of the appellant to  use  the  premises  for
personal necessity is a question of fact which was decided by  the  District
Judge on appreciation of evidence.  There was no mixed question of  law  and
fact involved in the case, much less  question  of  law.    The  comparative
hardship of tenant and landlord is a question of fact.  In  absence  of  any
question of law involved with such facts, the High Court can not alter  such
finding under Articles 226 and 227 of the Constitution of India.

12.   In view of the aforesaid finding, we hold that the High Court  had  no
jurisdiction under Articles 226 and 227 of  the  Constitution  of  India  to
interfere with or alter a finding of fact arrived at by an  Appellate  Court
deciding the question of personal necessity of a  landlord  in  a  landlord-
tenant dispute. For the reason aforesaid, the judgment passed  by  the  High
Court cannot be upheld.  We, accordingly, set aside  the  impugned  judgment
and decree dated 23rd February, 2010 and 1st October, 2010,  passed  by  the
High Court and restore the order passed by the Appellate Court. The  appeals
are allowed.


                                                      ………………………………………………….J.
                                          (SUDHANSU JYOTI MUKHOPADHAYA)




                                                       ……………………………………………….J.
                                            (KURIAN JOSEPH)



NEW DELHI,
APRIL 1,  2014.

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