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        REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1525 OF 2017 ARISING OUT OF

SPECIAL LEAVE PETITION (CIVIL) NO. 4516 OF 2015

AMBADAS KHANDUJI SHINDE & ORS. … APPELLANTS

VERSUS

ASHOK SADASHIV MAMURKAR & ORS. … RESPONDENTS

ORDER

N.V. RAMANA, J.

Leave granted.

2. The appellants herein who are landlords have approached this Court aggrieved by the impugned order

dated 22nd September, 2014 passed in Civil Revision

Application  No.  50  of  2013  by  the  High  Court  of

Judicature at Bombay, Nagpur Bench, Nagpur wherein

and  whereby  the  learned  Judge  has  allowed  the

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Revision  by  setting  aside  the  judgment  and  decree

passed by the Courts below.

3. The facts of the case in nutshell are that the appellants/landlords filed Small Cause Civil Suit

No. 47 of 2005 on the file of the 5th Joint Civil

Judge, Junior Division, Amravati seeking recovery of

possession on the ground of bona fide requirement,

change  in  usage  of  premises,  willful  default  and

further sought the relief of mesne profits.

4. It  is  stated  in  the  plaint  that  the  suit schedule  premises  bearing  new  Municipal  House  No.

187/3 in Ward No. 37 on the ground floor, which is

part  of  three  storied  building,  is  owned  by  the

plaintiffs.  The  defendants’  father  originally

occupied the property on a monthly rent of Rs.200/-

for carrying on the business of  Dahi  (curd), which

was let out to him by the mother of 1st plaintiff and

grandmother of plaintiff Nos. 2 to 4. After the death

of defendants’ father, they have changed the nature

of the business and started a travel agency without

the prior permission of landlords/owners. The tenants

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are chronic defaulters who failed to pay the rent

from January 2001 to April 2005. In spite of receipt

of the notice from the landlords, they failed to pay

the rents. In respect of bona fide requirement, it is

stated that as plaintiff Nos. 3 & 4 are unemployed

and  are  in  need  of  money  for  maintaining  their

family, hence they wanted to start kirana business as

such they required the suit schedule property which

is suitable for the business. The plaintiff No. 2 in

the  month  of  December  2005  started  shop  of  Goli

biscuits  &  Snacks  in  another  shop  of  4  x  10  ft.

vacated by the tenant. It is stated by the plaintiffs

that  defendants  own  and  possess  two  storied

residential building having two shop premises wherein

one  shop  is  lying  vacant.  They  also  owned  three

luxury buses. Defendants being potential persons do

not require this premises but whereas the plaintiffs

are  in  dire  need  of  the  premises  and  balance  of

convenience is in their favour and if the premises is

not vacated it would cause great hardship.

5. In  response  to  this,  the  defendants  filed their written statement stating that the property was

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let  out  by  the  plaintiffs’  mother  to  defendants’

father  in  1979  for  business  purpose  but  not

specifically to run the curd shop and right from 1999

they are running travel agency as such the permission

of  the  landlord  is  not  required.  With  regard  to

willful default it is stated that they are not in

arrears and in fact till 2007 in advance they have

paid the rents to the mother of the plaintiffs as she

was  in  need  of  money.  It  is  admitted  by  the

defendants that they own a big complex but they state

that it is a residential complex and in fact there is

no  bona  fide  requirement  of  the  premises  for  the

landlords but in fact landlords intend to sell the

property.  It  is  their  further  case  that  they

purchased the buses by taking loans and are in severe

financial hardship. It is stated by the defendants

that the plaintiffs’ main source of income is rents.

It is further stated that the plaintiffs have sold

the shop in ground floor premises measuring about 7’

x 15” vide sale deed dated 30-09-2004 and another

ground floor shop measuring 257 sq.ft. by sale deed

dated 13th May, 2005 and another room by sale deed

dated  29-05-1995.  It  is  also  stated  that  the

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plaintiffs are running Pathela on the Nazul land for

which Corporation has issued notices to remove the

same.

6. The  trial  Court  framed  eight  issues  for adjudication  and  after  a  full  fledged  trial,  in

response to the issue of willful default held that

the rents were paid to the mother of plaintiffs and

there was no willful default and the issue is held

against the plaintiffs. The second ground raised by

the plaintiffs i.e. change of nature of business was

also  negatived.  But  on  the  aspect  of  bona  fide

requirement, Court has come to a definite conclusion

that the requirement of the plaintiffs is bona fide

to run the kirana business as plaintiffs 3 & 4 are

unemployed.  The  Court  also  observed  that  the

defendants could not discharge the burden cast upon

them in this regard. They could not establish that it

is the intention of the landlord to sell away the

suit  schedule  property.  Hence  the  trial  Court  has

concluded that even balance of convenience is also in

favour of the plaintiffs and accordingly decreed the

suit.

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7. Aggrieved  by  the  same,  the respondents/tenants  carried  the  matter  by  way  of

appeal to the District Court and the District Court

remanded the matter to the trial Court to try it as a

regular civil suit. Later the same was numbered as

Regular Civil Suit No. 47 of 2005 for ejection and

possession and the Court decreed the suit on the same

findings as were recorded before remand.

8. Then the judgment and decree was carried in appeal by the tenant and the same was numbered as

Regular Civil Appeal No. 104 of 2011 on the file of

the Ld. District Judge, Amravati and after hearing

the  parties  and  going  through  the  record,  the

appellate court confirmed the findings of the trial

Court and dismissed the appeal with costs by judgment

and decree dated 9-6-2011. The appellate court, after

dealing with each and every issue, has agreed with

the findings of the trial Court in toto.

9. Then the matter was carried on to the High Court by way of Civil Revision Application No. 50 of

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2013. The learned judge allowed the Civil Revision

Petition which is impugned before us.

10. We have heard the learned counsel on either side and perused the material placed before us. We

are inclined to interfere with the order of the High

Court on two aspects. One is the reasoning given by

the learned Judge while allowing the revision lacked

merit and secondly the order passed by the learned

Judge  is  beyond  its  jurisdiction  conferred  under

Section 115 of the Civil Procedure Code.

11. Having elucidated above the analysis of the evidence on record both by the trial Court and by the

District Court, we find substance in the contention

of the appellants that the High Court had no valid

reason  or  justification  to  interfere  with  the

concurrent findings in the exercise of its revisional

jurisdiction.  The sale of two shops by the landlords

on 24 September 2004 and 13 May 2005 was admittedly

to existing tenants in occupation of the shops. This

is not a case where the landlord has obtained vacant

possession of shops which were earlier given on rent

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and thereafter sold them as vacant units to a third

party in an arms-length transaction.  The fact that

the sale by the landlord was to existing tenants is

an important circumstance which supports the finding

of the trial Court that in such a situation, the sale

would be by reason of financial need or in compelling

circumstances.  This view of the trial Court, which

was  affirmed  by  the  District  Court,  cannot  be

regarded as perverse or based on no evidence, as the

High Court held.

12. Moreover, there is a manifest error on the part of the High Court in holding that the landlords

failed  to  explain  the  circumstances  in  which  they

obtained vacant possession of one shop on 19 July

2005 or on how it was being utilized.  We have, in

the  earlier  part  of  this  judgment,  extracted  the

findings of the trial Court and the first appellate

Court,  which  indicate  that  in  the  shop  of  which

vacant possession was obtained, a provision store is

being conducted jointly.  In this background, it was

found that the need felt by the father as head of the

family that his sons should be settled in independent

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businesses  was  genuine.   The  co-owners  cannot  be

compelled to carry on business jointly since they are

the best judges of their need.  The High Court has

overlooked  these  findings  and  has  arrived  at  a

patently  erroneous  conclusion  that  there  was  no

explanation from the landlords of the manner in which

the shop which had fallen vacant was being utilized.

There  was  in  fact  an  explanation.   Each  of  the

reasons  which  weighed  with  the  High  Court  in

reversing  the  concurrent  findings  were  hence

specious.

13. Apart from the factual aspect, order lacks merit on the ground of jurisdiction. The High Court

cannot interfere with the concurrent factual findings

while exercising jurisdiction under Section 115 of

the  Civil  Procedure  Code.  It  is  settled  law  that

revisional  jurisdiction  of  the  High  Court  is

restricted to cases of illegal or irregular exercise

of  jurisdiction  by  the  subordinate  Courts.  Under

Section 115 of the Civil Procedure Code, it is not

open for the High Court to correct errors of facts or

law  unless  they  go  to  root  of  the  issue  of

jurisdiction. In the facts on hand, the Courts below

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have  passed  reasoned  orders  well  within  the

jurisdiction conferred upon them. We arrive at the

conclusion  that  the  High  Court  committed  error  in

interfering with the judgment and decree of the trial

Court.

14. In view of the above discussion, the order of the  High  Court  is  set  aside  and  consequently  the

appeal stands allowed. However, in view of the fact

that the defendants/respondents are running business

in  the  premises  right  from  1979,  we  deem  it

appropriate to grant six months time to vacate the

premises, subject to the filing of usual undertaking

to handover possession of the shop to the appellants

accordingly.  

………………………………………………………CJI. (JAGDISH SINGH KHEHAR)

……………………………………………………………J. (N.V. RAMANA)

……………………………………………………………J. (Dr. D.Y. CHANDRACHUD)

NEW DELHI, JANUARY 31, 2017.

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