Page 1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5674 OF 2007

 Kalidas Chunilal Patel (Dead) by L.Rs.         Appellant(s)

VERSUS

Savitaben & Ors. Respondent(s)

J U D G M E N T

                 Abhay Manohar Sapre, J.

   1) This  appeal  is  filed  against  the  final  judgment

and  order  dated  17.06.2005  of  the  High  Court  of

1

Page 2

Gujarat  at  Ahmedabad  in  Civil  Revision  Application

No. 110 of 1994 whereby the High Court  allowed the

revision  application  filed  by  the  respondents  herein

and  quashed  the  judgment/order  dated  12.10.1993

passed by the District Judge, Bharuch in Civil Appeal

No. 152 of 1982 and remanded the same to the District

Judge, Bharuch.

2) In  order  to  appreciate  the  short  controversy

involved in the appeal, few facts need mention.

3) The appellants are the plaintiffs-landlord whereas

the respondents are the defendants-tenant.

4) The  suit  house  is  situated  in  village  Sachan,

Taluka Wagra,  District  Bharuch.  One  Bai  Zaverben,

widow  of  Chhaganbhai  Govindbhai  Patel  was  the

owner  of  the  suit  house.   She  had let  out  the  suit

house to one Ranchhodbhai Govindbhai as her tenant

2

Page 3

on a monthly rent of  Rs.3/-.  He had also executed

rent note in her favour.  Bai Zaverben died in 1977.

She  had,  however,  executed  a  will  in  favour  of  one

Kalidas  Chunnilal  Patel  (the  appellant  herein-since

dead  and  represented  by  his  legal  representatives)

bequeathing the suit house to him.  Kalidas Chunnilal

Patel thus became the sole owner of the suit house on

the  strength  of  will  after  her  death.  The  name  of

Kalidas  Chunnilal  Patel  was  accordingly  mutated  in

revenue records as owner of  the suit house. Kalidas

Chunnilal  Patel,  by  operation  of  law,  then  became

landlord of the suit house  

5) On 06.12.1978, Kalidas Chunnilal Patel served a

legal notice to Ranchhodbhai Govindbhai demanding

arrears of rent from 26.04.1976 to 06.12.1978 alleging

that after the death of Bai Zaverben, he has not paid

3

Page 4

any  rent  to  him.   Kalidas  Chunnilal  Patel  also

demanded  possession  of  the  suit  house  alleging

therein that he genuinely required the suit house for

his  personal  residence.  It  was  also  stated  that  the

Bombay  Rents,  Hotel  and  Lodging  House  Rates

Control Act, 1947 (hereinafter referred to as "the Act”)

does  not  apply  to  the  suit  house.  Ranchhodbhai

Govindbhai,  on  receipt  of  the  notice,  denied  the

allegations made therein by sending his reply.

6) This  led  to  filing  of  the  civil  suit  by  Kalidas

Chunnilal  Patel  being  Regular  Civil  Suit  No.  183 of

1979  against Ranchhodbhai  Govindbhai in the Court

of  2nd Joint  Civil  Judge  (Sr.  Division),  Bharuch  at

Bharuch  claiming a money decree to recover Rs.94/-

towards the arrears of rent for the period 26.04.1976

to  06.12.1978,  notice  charges  Rs.13/-  and  mesne

4

Page 5

profit at the rate of Rs.3/- per month from 06.12.1978.

The  plaintiff  also  claimed  eviction  of  the  defendant

from the  suit  house  on  the  ground  of  his  personal

need  for  residence.  The  defendant  denied the  plaint

averments.

7) It  may  here  be  mentioned  that  during  the

pendency of the suit, the State Government issued a

notification  on  03.04.1980  under  Section  2(3)  and

Section  6(1A)  of  the  Act  whereby  the  provisions  of

Bombay  Rent  Control  Act  were  extended  and  made

applicable  to  the  area  where  the  suit  house  was

situated. In other words, on and after 03.04.1980, the

rights of the landlord and tenant in relation to the suit

house were to be governed by the provisions of the Act.

8) The Trial Court on the basis of pleadings framed

issues.  These issues were,  

5

Page 6

“1) Whether  the  plaintiff  proves  that  the defendant is in arrears of rent from 20.7.70?

2) Whether  the  plaintiff  proves  that  he requires the suit premises for his bona fide use and occupation?

3) Whether the plaintiff proves that he has become the owner of the suit premises?

4) Whether the defendant proves that the plaintiff has filed this suit only out of malice because of their strained social relations?

5) Whether the defendant proves that he has paid up the rent upto 2.9.78 but he has not given any receipts?

6) Whether  the  defendant  proves  that greater hardship would be caused to him if the decree for possession is granted?

7) Whether the plaintiff is entitled to get the possession?

8) What  amount,  if  any,  the  plaintiff  is entitled to get?

9) What order and decree?”

9) The  parties  adduced  evidence.  Vide

judgment/decree  dated  18.10.1982,  the  Trial  Court

decreed  the  plaintiff's  suit.   It  was  held  that  the

6

Page 7

plaintiff is the landlord of the suit house whereas the

defendant  is  his  tenant,  that  the  defendant  is  in

arrears of  rent for the period specified in the plaint,

that the provisions of the Act are not applicable to the

suit  house,  that  the  plaintiff  has  terminated  the

defendant's  monthly  tenancy  by  serving  proper  quit

notice under Section 106 of the Transfer of Property

Act,   that  a  case  is  made  out  by  the  plaintiff  for

passing a decree for possession against the defendant

in relation to the suit house.  

10) The  Trial  Court,  with  these  findings,  passed

money decree towards arrears of rent, notice charges

and mesne profits and further passed the decree for

possession against the defendant in relation to the suit

house.

7

Page 8

11) The  defendant,  felt  aggrieved,  filed  first  appeal

being Civil Appeal No. 152 of 1982 before the Court of

District  Judge,  Bharuch.  Since  in  the  meantime,

original plaintiff and defendant both expired and hence

their legal representatives were brought on record to

enable them to continue the lis.

12) In  appeal,  the  appellate  Court  examined  the

question regarding the applicability of the provisions of

the Act to the suit house. Indeed, we find from Para 14

of the appellate judgment that it was conceded by the

parties through their lawyer that the provisions of the

Act are applicable to the suit house. In this view of the

matter, the appellate Court proceeded to examine the

next question as to whether it is necessary to remand

the case to  the  Trial  Court  once  it  is  held that  the

provisions of  the  Act  applies  to the suit  house.  The

8

Page 9

appellate  Court,  however,  came  to  a  conclusion  in

Paras 16 and 17 that since the plaintiff  has already

pleaded that his case also satisfies the requirements of

relevant provisions of the Act and that pleadings are in

conformity with the requirements of the Act, it is not

necessary to remand the case to the Trial Court for its

retrial under the Act nor it is necessary to send this

case to the Rent Tribunal by virtue of  Section 28 of

the Act, which enables the Court to decide the suit.

13) The  appellate  Court,  accordingly,  proceeded  to

examine the case on merits with a view to find out as

to whether the plaintiff was able to make out any case

under the Act and, if so, whether the decree passed by

the  Trial  Court  for  arrears  of  rent  holding  the

defendant  to  be  the  defaulter  under  the  Act  and

further whether the decree for eviction passed against

9

Page 10

the  defendant  on  the  ground  of  plaintiff’s  personal

need  for  his  residence  is  legally  and  factually

sustainable and whether it can be held to have been

passed in conformity with the provisions of the Act.

14) The appellate Court, on appreciation of evidence,

held that the plaintiff was able to make out a case that

the defendant was a defaulter in payment of monthly

rent and that he failed to pay the arrears of rent for a

period  specified  in  the  plaint  thereby  incurred  a

penalty  of  being  evicted  from  the  suit  house  as

provided under the Act. So far as the issue regarding

plaintiff’s  personal  need was concerned (Point  No.3),

the appellate Court held in Para 22 that the counsel

for  the  respondents  has  conceded  that  the

respondents do not wish to challenge the finding of the

Trial Court on this issue.  

10

Page 11

15) In the light of such concessional statement made,

by which the challenge to the finding of the Trial Court

on the issue of personal necessity was expressly given

up by the respondents, the appellate Court was right

in  upholding  the  finding  of  the  Trial  Court  on  this

issue. It is after recording these findings, the appellate

Court  dismissed  the  appeal  and  upheld  the

judgment/decree of the Trial Court though on different

reasoning of its own.     

16) The defendants, felt aggrieved, filed civil revision

in the High Court. By impugned order, the High Court

allowed the revision and set aside the judgment/order

of the first appellate Court and remanded the case to

the appellate Court with directions.

17) It is apposite to quote the directions of the High

Court contained in the concluding Para of the order:  

11

Page 12

“The  Revision  Application  is  allowed. The judgment and order dated 12th October, 1993 passed by the learned District  Judge, Bharuch  in  Civil  Appeal  No.  152/1982  is quashed  and  set  aside.  The  Civil  Appeal  is remanded  to  the  learned  District  judge, Bharuch. The learned District Judge, Bharuch shall  remand  the  Regular  Civil  Suit  No. 183/1979 to the trial court with appropriate direction  either  to  transfer  the  suit  to  the Rent  Court  or  to  allow  amendment  of  the pleadings  and  to  continue  the  suit  as  one under the Rent Act. Rule is made absolute to the aforesaid  extent.  The parties  shall  bear their own cost.  The Registry shall send the writ forthwith.”  

18) It  is  against  the  aforesaid  order,   the  plaintiffs

filed this appeal by way of  special leave before this

Court.

19) Mr. Mayur R. Shah,  learned counsel appeared

for  the  appellants.  No  one  appeared  for  the

respondents despite service.

20) It may be mentioned that during the pendency of

this appeal, respondent No. 2, who was one of the legal

12

Page 13

representatives of  original  defendant,  died. Since his

interest  was  sufficiently  safeguarded  by  the  other

respondents, who are related to him and hence, in our

view,  it  is  not  necessary  to  bring  his  legal

representatives  on  record  and  instead  his  name  be

deleted from the cause title. It be accordingly done.

21) Having  heard  the  learned  counsel  for  the

appellants (plaintiffs) and on perusal of the record of

the case, we are inclined to allow the appeal and while

setting  aside  the  impugned order  restore  the   order

passed by the appellate Court.

22) In our considered opinion, the High Court erred

in  allowing  the  Revision  Petition  filed  by  the

defendants-tenant and thereby erred in setting aside

the order of  the appellate Court.  Similarly,  the High

Court  erred  in  remanding  the  case  to  the  appellate

13

Page 14

Court by giving directions as to how the issue arising

in the case needs to be decided.  

23) In our considered opinion, the High Court failed

to see that the question as to whether provisions of the

Act  are  applicable  to  the  case  at  hand  by  virtue  of

notification issued during the pendency of the civil suit

had become insignificant and was of no consequence.

It  was  for  the  reason  that  the  appellate  Court  had

already examined all the issues arising in the case in

the light of the provisions of the Act and then held that

the plaintiff  is the owner of the suit house, that the

defendant  was the  defaulter  in  paying  monthly  rent

and was in arrears and the  plaintiff's personal need

for residence in the suit house is bona fide etc.  

24) In  other  words,  when  the  appellate  Court  had

already examined all questions arising in the case as if

14

Page 15

the  provisions  of  the  Act  are  applicable  to  the  suit

house and then recorded the aforementioned findings

in plaintiff's  favour,  there was no need for  the High

Court to remand the case again to the appellate Court

for deciding the same issues. It was, in our opinion, an

exercise in futility and was not called for.

25) Instead, in our view, the High Court should have

examined the legality of the findings on merits with a

view to find out as to whether the appellate Court was

justified in recording the findings in plaintiff’s favour

or not.

26) It  is a settled law that when the first appellate

Court, on appreciation of evidence, records a finding of

fact on a particular issue then such finding is usually

binding  on  the  High  Court  while  hearing  revision

against such order. It is only when any finding of fact

15

Page 16

is  found  to  be  wholly  perverse  or  de  hors to  any

provision of law or is recorded contrary to pleadings

and evidence on record, interference in such finding

may arise in appropriate cases but not otherwise.  

27) We have perused the judgment of the Trial Court

and first appellate Court and find that no case is made

out to interfere in the findings recorded by the first

appellate Court.

28) In the  first  place,  we find that  all  the  findings

recorded  by  the  first  appellate  Court  are  based  on

proper  appreciation  of  evidence.  Secondly,  these

findings  are  recorded  in  the  light  of  requirement  of

provisions of the Act after reversing the finding of the

Trial  Court  on  the  issue  of  applicability  of  the

provisions of the Act. Thirdly, the respondents are not

here to convince us as to why the findings of the first

16

Page 17

appellate Court were not binding on the High Court

and why they were required to be set aside. Fourthly,

we  have  also  not  been  able  to  notice  any  kind  of

infirmity in any of these findings so as to call for any

interference in this appeal and lastly, in the light of

findings, namely, that the defendants are defaulters in

paying monthly rent and that the plaintiff's need for

residence in the suit house is  bona fide and that the

defendant was not able to prove greater hardship if the

eviction decree is passed against him, in our view, the

decree for  eviction,  arrears of  rent and mesne profit

was rightly passed against the defendant in relation to

suit  house.  Since  these  findings  were  rendered  in

conformity with the requirements of the Act, we find

no good ground to set aside these findings.

17

Page 18

29) In the light of  foregoing reasons,  we are of  the

view  that  the  High  Court  committed  an  error  in

remanding the case to the appellate Court for deciding

these very issues afresh on their merits without there

being  any  reason  much  less  justifiable  reason  for

passing such order.  

30) Learned  counsel  for  the  appellants,  however,

argued the legal issue regarding the applicability of the

Act to the suit house during the pendency of the suit.

He placed reliance on the decisions of  this Court in

Moti Ram vs. Suraj Bhan & Ors.,  (1960) 2 SCR 896

and  Shah  Bhojraj  Kuverji  Oil  Mills  &  Ginning

Factory vs. Subhash Chandra Yograj Sinha, (1962) 2

SCR 159  in support of his submission. In our view,  it

is  not  necessary  to  go  into  this  question  any  more

18

Page 19

much less in detail in the light of our reasons given

above.  

31) In  view  of  foregoing  discussion,  the  appeal

succeeds and is allowed. Impugned order is set aside

and that of the order of the appellate Court restored.

32) The respondents are granted three months’ time

to  vacate  the  suit  house  provided  they  deposit  the

entire  decreetal  amount  within  one  month  and  give

usual undertaking before the Trial Court to vacate the

suit  house  on  or  before  three  months  and  pay

damages at the same rate of rent for three months for

use  and  occupation  of  the  suit  house.   Let  the

compliance be made within one month.  

33) Failure to comply within time would disentitle the

respondents to remain in occupation for three months

and the appellants  would be entitled to execute  the

19

Page 20

decree against the respondents on the expiry of  one

month from the date of this judgment.   

34) No costs.

                                    .……...................................J.                       [ABHAY MANOHAR SAPRE]                  

                    ………..................................J.                              [ASHOK BHUSHAN]

New Delhi, June 29, 2016.

20