Bombay High Court
Sharad Murlidhar Shukla vs Shankar Ramkrushna Lakade on 10 March, 2011
Author: V.M. Kanade
Bench: V.M. Kanade
1
(WP 2203 of 1995)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2203 OF 1995
Sharad Murlidhar Shukla )
age 49 years, Occupation Business, )
residing at House No.1015, )
Shukla Galli, Nashik )..Petitioner
ig (Org. Defendant)
Versus
Shankar Ramkrushna Lakade )
age about 54 yars, Occup. Business)
residing at House No. 1041/B, )
Shukla Galli, Nashik )..Respondent
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Mr.M.M. Sathye for Petitioner
Mr.P.J. Thorat i/b. Mr.V.A. Thorat for Respondent
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CORAM: V.M. KANADE J.
DATED: 10th March, 2011
ORAL JUDGMENT
1. After the petition was dismissed, the learned counsel appearing on behalf of the Petitioner again mentioned the matter at 5 p.m. and, therefore, at his ::: Downloaded on - 09/06/2013 17:04:36 ::: 2 (WP 2203 of 1995) request, the order was not signed and, thereafter, the Petitioner is permitted to re-argue the case in the interest of justice.
2. Brief facts are that the Petitioner Sharad Murlidhar Shukla was the Original Plaintiff. The Petitioner Nos.2 and 3 have been added as Petitioners in this petition since they have stepped into the shoes of the Petitioner No.1. The Respondent is the original Defendant. The Petitioner No.1 is the original landlord and the Petitioner Nos.2 and 3 have purchased the property from the Petitioner Nos.1 and, therefore, are the new landlords (for the sake of convenience the parties are referred to as "the Original Plaintiff and the Original Defendant" and the Petitioner Nos. 2 and 3 are referred to as "the new landlords").
3. Brief facts are that the suit was filed initially by the uncle of the Sharad i.e. the Original Plaintiff -Prabhakar for eviction of the tenant from the suit property on the ground of bonafide requirement to have access to his property since existing access has fallen to the share of his brother Dattatraray. During the pendency of the suit, Prabhakar sold his share to Sharad and continued to pursue the suit. However, no amendment was made in the pleadings. It was contended in the plaint that the ::: Downloaded on - 09/06/2013 17:04:36 ::: 3 (WP 2203 of 1995) property consisted of one bungalow (wada) and there was a partition in the year 1975 and one shop and certain residential premises on the first floor came to the share of Prabhakar. In the plaint, it was pleaded that Prabhakar wanted possession of the room which was used as a tailoring shop by the Defendant-Tenant for making a passage for entering in the suit house No. 1041-1B since there was no separate passage for making the entries in this building particularly since the existing passage had gone to the share of Dattatraya. The Trial Court decreed the suit after coming to the conclusion that the bonafide requirement was established and also the Trial Court came to the conclusion that greater hardship would be caused to the landlord and not to the tenant. In appeal, however, the Appellate Court set aside the judgment and order of the Trial Court and dismissed the suit. The Appellate Court came to the conclusion that the bonafide requirement was not established by the Plaintiff. It also held that the greater hardship would be caused to the Defendant and not to the landlord.
4. I have heard both the counsel at length. The learned counsel appearing on behalf of the Petitioners submitted that firstly, that the Appeal Court could not have gone into the genuineness of the partition. In support of the said submissions, the learned counsel has ::: Downloaded on - 09/06/2013 17:04:36 ::: 4 (WP 2203 of 1995) relied on the judgment of the Learned Single Judge of this Court in the case of Yogesh Dattaram Pathak vs. Shrikrishna Shriram Joshi [2003 (Supp.) Bom. C.R. 587]. It was then submitted that the Appeal Court has not taken into consideration the fact that the landlord had not taken into consideration this aspect. It was further submitted that it is a settled position in law that the Court of the tenant could not dictate the landlord regarding his need for bonafide requirement. In support of the said submission,he relied on the judgment of the Apex Court in the case of Meenal Eknath Kshirsagar vs. Traders & Agencies and Another [1997 (1) Mh.L.J. Page 121]. Another judgment of the Apex Court in the case of R.C. Tamrakar and Another Vs. Nidi Lekha [2001(8) SCC page 231). It was submitted that the observation made by the Lower Appellate Court was directly contrary to the observation made by the Apex Court in the aforesaid judgments. It was then submitted that the Defendant- Tenant had admitted in his cross examination that he had not taken any steps for acquiring an alternate premises and also had not made any search in that direction. It was submitted that this Court in the case of Nana Narayan Kamble vs. Kashiprasad Nitanma Prasad alias Jahamba Prasad Dube [1987, Mah.R.C.J., Page 147] has held that if no steps had been taken to find alternate accommodation, then in that case, the finding ::: Downloaded on - 09/06/2013 17:04:36 ::: 5 (WP 2203 of 1995) of great hardship would not be available to him. Reliance was also placed on the judgment of the Learned Single Judge of this Court in the case of Kumidini Balkrishna Bagade vs. Laxman Dyanoba Bagade [1983(Bom.) R.C. Page 390]. It was then submitted that the bonafide requirement of the landlord held to be the date of his application for eviction and subsequent developments by themselves could not be held to be the basis for denying the landlord's relief when the litigation reaches the final stages. Reliance was placed on the judgment of the Apex Court in the case of Gaya Prasad vs. Pradeep Srivastava [(2001)2 Supreme Court Cases 604].
5. On the other hand, the learned counsel appearing on behalf of the Respondent submitted that the entire premises were purchased by the Petitioner Nos.2 and 3 and, therefore, the requirement of this Original Plaintiff was no longer existed. It was submitted that the Lower Appellate Court had recorded a finding of fact on the question of bonafide requirement and greater hardship by appreciating the evidence on record. It was submitted that this Court, therefore, under these circumstances, could not exercise the power of superintendence under Article 227 of the Constitution of India for substituting its own view to the view taken by the Trial Court. In rejoinder, it was submitted that this ::: Downloaded on - 09/06/2013 17:04:36 ::: 6 (WP 2203 of 1995) Court could always exercise its jurisdiction under Article 227 of the Constitution of India if it was shown that the finding of the Lower Appellate Court is perverse. It was submitted that the finding of the Lower Appellate Court was perverse and, therefore, this Court would either set aside the said order or confirm the order of the Trial Court or remand the matter back to the Lower Appellate Court for fresh appreciation of evidence in accordance with law.
6. After having heard both the counsel at length, and before taking into consideration the rival submissions, it will not be necessary to keep in mind the exact extent of the power which can be exercised by this Court under Article 227 of the Constitution of India. The Appellate Court in catena of cases has observed that the jurisdiction of this Court under Article 227 is very limited and this jurisdiction should not be exercised for substituting the view taken by the Lower Appellate Court or Lower Courts by its own view by re- appreciating the evidence on record. While exercising the power of superintendence, the High Court is only expected to see whether the Lower Appellate Court has exercised its jurisdiction in a proper manner has not committed any material irregularity and have not recorded a finding which is patently perverse. If a particular view is taken ::: Downloaded on - 09/06/2013 17:04:36 ::: 7 (WP 2203 of 1995) by the Lower Appellate Court which has the jurisdiction to do so and the High Court comes to the conclusion that the view taken is wrong, even then unless it is shown that the view is perverse, this Court should not interfere with the said order.
7. The Apex Court in the case of - Surya Dev Rai, Appellant vs. Ram Chander Rai & Ors, Respondents [(2003) 6 Supreme Court Cases 675] has laid down the guidelines as to the circumstances under which High Courts should exercise the writ jurisdiction under Art.
227 of the Constitution of India, as under-
"12. In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a Court which has jurisdiction over a subject-matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an Appellate Court and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court.
...
38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-::: Downloaded on - 09/06/2013 17:04:36 ::: 8
(WP 2203 of 1995) (1) ...
...
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and
(iii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during ::: Downloaded on - 09/06/2013 17:04:36 ::: 9 (WP 2203 of 1995) the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character."
Similarly, in a recent judgment, the Apex Court in the case of Shalini Shyam Shetty and another vs. Rajendra Shankar Patil [2010(6) Mh. L. J.] has observed in paragraph 62 as under:
"62. On an analysis of the aforesaid decisions ::: Downloaded on - 09/06/2013 17:04:36 ::: 10 (WP 2203 of 1995) of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Court is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a
hat, in exercise of its power of
superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. No can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a ::: Downloaded on - 09/06/2013 17:04:36 ::: 11 (WP 2203 of 1995) restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Warayam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, ' within the bound of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has ::: Downloaded on - 09/06/2013 17:04:36 ::: 12 (WP 2203 of 1995) been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (I) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L.Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgment by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of ::: Downloaded on - 09/06/2013 17:04:36 ::: 13 (WP 2203 of 1995) High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article
227.
(k) The power of discretionary and has to be exercised on equitable principle. IN an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public ::: Downloaded on - 09/06/2013 17:04:36 ::: 14 (WP 2203 of 1995) confidence in the functioning of the tribunals and Courts subordinate to High Courts.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance.
Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."
Keeping in view the ratio of the judgments of the Apex Court in the said two cases, it has to be seen whether any case is made for interfering with the impugned judgment and order passed by the Lower Appellate Court.
8. In my view, the submissions made by the learned counsel for the Petitioner cannot be accepted. It is an admitted position that the suit initially was filed by ::: Downloaded on - 09/06/2013 17:04:37 ::: 15 (WP 2203 of 1995) Prabhakar. During the pendency of the suit, he sold the property to his nephew Sharad and he was added as Plaintiff No.2 in the suit though no amendment was made in the pleadings and during the pendency of this writ petition, the suit property has been purchased by the Petitioner Nos.2 and 3, who have now the new landlords. It is an admitted position that the partition had taken place between the family members in 1975.
Next to the shop of the Defendant -Original Tenant, there is a small access road which leads to the house of Sharad - Original Plaintiff No.2. The Original Plaintiff want to secure the shop of the Defendant -Tenant for the purpose of having access to the said property since according to the Original Plaintiff, the access road having gone to the share of Dattatraya and he had to be at his mercy seeking access. The Trial Court accepted this contention and held that bonafide requirement was proved. The Lower Appellate Court, however, came to a contrary conclusion. The Lower Appellate Court has observed that there was a partition and in paragraph 10 of the judgment has observed that no attempt had been made to produce the partition memo which was affected in between landlord and his brother. The Trial Court further came to the conclusion that the Tenant Court, however, challenged the bonafides of the landlord and proved that in order to evict the tenant, the partition was ::: Downloaded on - 09/06/2013 17:04:37 ::: 16 (WP 2203 of 1995) effected and then it was an artificial arrangement made only for the purpose of evicting the tenants. In paragraph 13 of the judgment, the Appellate Court has observed that Sharad had kirana shop by the side of the tenant and since shop was sold by the Prabhakar to Sharad, the need of Prabhakar would not be taken into consideration. The Lower Appellate Court also observed that so far as Sharad is concerned, he has already his residential portion in other house bearing No.1014 which was allotted to his father Murlidhar. Therefore, he had two premises for his disposal, one in the house 1015, other the suit premises. It was also observed that the some tenants were evicted during the pendency of this suit and under these circumstances, came to the conclusion that landlord to retain half of the shop premises for putting his Kirana shop and remaining could be used for the purpose of passage. In my view, it cannot be said that the said reasoning and the observation made by the Lower Appellate Court can be said to be perverse. As of today, even Sharad had sold his property to the Petitioner Nos.2 and 3 and, therefore, the requirement of Sharad also does not exist any more. The judgment on which the reliance is placed by the learned counsel for the Petitioner, in my view would not apply to the facts of the present case.
::: Downloaded on - 09/06/2013 17:04:37 ::: 17(WP 2203 of 1995)
9. It is also submitted by the learned counsel for the Petitioner that the original landlord had brought on record that the change was made in the city civil record and, therefore, had established that there was partition and those city survey records are exhibited. It is no doubt true that city survey record is exhibited are brought on record but that by itself does not prove partition, in my view, the tenant would be entitled to challenge the factum of partition in order to establish that the said partition was not bonafide and was effected only for the purpose of defeating the protection which is given to him under the Rent Act. The said submissions, therefore, cannot be accepted.
10. So far as the question of hardship is concerned, the Lower Appellate Court has also after going through the evidence on record, has held that greater hardship would be caused to the tenant and not to the landlord. It is no doubt true that the tenant has admitted that he had not taken any steps to acquire an alternate premises. However, in the present case, since the Lower Appellate Court has held that bonafide requirement is not established, the question of hardship by itself does not arise. Even otherwise, the judgment on which the reliance is placed by the learned Counsel for the Petitioner can be distinguished. In my view, no case is ::: Downloaded on - 09/06/2013 17:04:37 ::: 18 (WP 2203 of 1995) made out for interfering with the judgment and order passed by the Lower Appellate Court while exercising the jurisdiction under Article 227 of the Constitution of India. Writ Petition is, therefore, dismissed.
(V.M. KANADE J.) ::: Downloaded on - 09/06/2013 17:04:37 :::