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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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