Kalpesh Hemantbhai Shah v. Manhar Auto Stores Through Its Partner & Ors.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4266-4267 of 2014. From the Judgment and Order dated 23.02.2010 of the High Court of Bombay at Nagpur in WP No. 5521 of 2009 and dated 01.10.2010 in LPA No. 150 of 2010 . . Siddhesh Kotwal, Bansuri Swaraj, Nirnimesh Dube for the Appellant. Sunil Sabharwal, Mahendra Kumar, Bankey Bihari Sharma for the Respondents. The Judgment of the Court was delivered by KALP ESH HEMANTBHAI SHAH v. MANHAR AUTO STORES 23 THR. ITS PARTNER SUDHANSU JYOTI MUKHOPADHAYA, J.

1Delay condoned. Leave granted.

2These appeals have been preferred by the appellantlandlord 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.

3The 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.

4After 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.

5Aggrieved 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 24 S..;PREME COL,R' REPOR"'."S [2014j 5 S.C.R. 23rd February, 2010. "'."he Letters Patent Appeal preferred by the appeilant agairst the said judgnient was not entertained being not maintainable by impugned judgment dated 1st October 2010. 8 6. i..earned counsei for the appellant submitted that the High Court under Articles 226 and 227 of the Constitution of India had .no jurisdict:on to sit in appeal and set aside the finding of facts arrived at by the Court below. It was not a second apoeal preferred by tre respondents, in fact no second appeal was maintamable agairst the Appeilate Soi..rt's order in absence of any substantial question of law.

7Per contra, according to 'earned counsel for the respondents, if there are mixed queshon of facts and law, the High CoL..rt can interfere with the concurrent finding of facts under Articles 226 and 227 of the Constitution of India. 8. ,.., tre present case. on the question of reasonable and bonafiae 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 conelusion that the appellant is the iandiord within the rr.eaning 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 appeilant than the respondents if decree of eviction is refused. In light of such observation ar.d finding, the appeal was allowed and the respondents-tenants were ordered to vacate the suit premises.

9The 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 -.;se of the premises by his parents ard failed to show that all the rooms available KALPESH HEMANTBHAI SHAH v. MANHAR AUTO STORES 25 THR. ITS PARTNER [SUDHANSU JYOTI MUKHOPADHAYA, J.] 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."

10The 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 sec 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 0 Subordinate Court.

11It 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 questi'on 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.

12In 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 fad arrived at by an Appellate Court deciding the question of personal necessity of a landlord in a landlord-tenant dispute. 26 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. Devika Gujral Appeals allowed.