KALPESH HEMANTBHAI SHAH Vs MANHAR AUTO STORES THRU ITS PARTNER
Bench: SUDHANSU JYOTI MUKHOPADHAYA,KURIAN JOSEPH
Case number: C.A. No.-004266-004267 / 2014
Diary number: 2393 / 2011
Advocates: NIRNIMESH DUBE Vs
BANKEY BIHARI SHARMA
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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.