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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

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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

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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

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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.

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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

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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.