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Jal Hirji Taraporevala Vs. K.A. Hamid - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1843 of 1954
Judge
Reported inAIR1956Bom323
ActsConstitution of India - Article 227; Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantJal Hirji Taraporevala
RespondentK.A. Hamid
Appellant AdvocateH.D. Banaji and ;Pochaji Jamshedji, Advs.
Respondent AdvocateM.P. Amin, Adv. General, ;M.S. Noronha and ;V.H. Kamat, Advs.
Excerpt:
.....claim for possession immediately after the period of the notice dated 6-3-1947. in the view of the learned judges of the appellate court, the plaintiff in calling upon the defendant forthwith to vacate and deliver possession was inspired by 'a desire which every landlord, placed as appellant is, would have had to occupy the premises, which both in its location and lay out is better than the one occupied by him' and that the plaintiff had acted in a 'gentlemanly way' and 'had favoured the defendant' and the delay in filing the suit was not indicative of absence of bona fides. not having so insisted and having obtained rule from a single judge, on the footing that the petitioner was held invoking the revisional jurisdiction of this court it may be safe to assume that the plaintiff desired..........to consider whether the alternative accommodation was suitable accommodation for the defendant.the learned judge filially held that greater hardship will not be caused by passing the order in ejectment against the defendant, than by not passing it. he was also of the opinion that no hardship will be caused either by passing or refusing to pass it'. on the view taken by him that the plaintiff's requirement was not bona fide, the learned trial judge dismissed the plaintiff's suit.it may be observed that the finding of the learned trial judge that the requirement of the plaintiff was not bona fide was substantially based on the view that whereas the plaintiff had purchased the building in 1946 he had not filed the suit ill ejectment till the august 1952 and that he had put up with.....
Judgment:

1. This is an application under Section 115, Civil P. C. files by the plaintiff, whose suit for a decree for possession of certain premises in Jassim House No. 25, Cuffe Parade, Colaba, Bombay, against his tenant has been dismissed by the trial Court and which decree of dismissal has been confirmed in appeal by the Court of Small Causes exercising jurisdiction under Section 29 of Bombay Act 57 of 1947.

The plaintiff purchased the building known as Jassim House some time in 1946. Thereafter he served a notice upon the defendant on 6-3-1947, requiring the defendant to vacate and deliver possession of a fiat in the building which was occupied by the defendant as a tenant of the Plaintiff.

It appears that no suit was filed by the plaintiff after termination of the contract of tenancy by that notice. On 12-6-1952, a fresh notice was served by the plaintiff upon the defendant requiring the defendant to vacate and deliver possession of the premises to him and on 14-8-1952 the suit out of which this revision application arises was filed in the Court of Small Causes at Bombay for an order against the defendant requiring him to vacate and deliver possession of the premises.

It was the plaintiff's case that the flat in the occupation of the defendant was required reasonably and bona fide by the plaintiff for his own use and occupation. The plaintiff stated that he had at his disposal a flat in the building which he was willing to give to the defendant in order to minimise the hardship which may be caused to the defendant.

Possession of the premises was also claimed on other grounds, but it is unnecessary to set out and deal with those grounds because they have not been relied upon in the trial Court. The suit was resisted by the defendant. He contended that the requirement of the plaintiff was neither reasonable nor bona fide.

The defendant admitted that the flat which was in his occupation had better amenities than the amenities which the flat occupied by the plaintiff in the same building had. But he contended that he and the members of his family were occupying the flat facing west in Jassim House with its ameni-ties for several years and if he was called upon to vacate and deliver possession of that flat, It would entail considerable hardship upon him and the members of his family and, therefore no order should be passed in favour of the plaintiff.

Before the learned trial Judge several witnesses were examined including some well-known medical practitioners. The learned trial Judge on a consideration of the evidence held that the plaintiff's requirement of the flat in the occupation of the defendant was reasonable but it was not bona fide.

He also held that if an order requiring the defendant to vacate and deliver possession of the flat in his occupation were passed, it would not cause hardship to the defendant. In the view of the learned trial Judge, the notice served by the plaintiff on 12-6-1952, was a 'valid and proper' notice and the alternative accommodation offered by the plaintiff to the defendant was reasonable but that it was not necessary to consider whether the alternative accommodation was suitable accommodation for the defendant.

The learned Judge filially held that greater hardship will not be caused by passing the order in ejectment against the defendant, than by not passing it. He was also of the opinion that no hardship will be caused either by passing or refusing to pass it'. On the view taken by him that the plaintiff's requirement was not bona fide, the learned trial Judge dismissed the plaintiff's suit.

It may be observed that the finding of the learned trial Judge that the requirement of the plaintiff was not bona fide was substantially based on the view that whereas the plaintiff had purchased the building in 1946 he had not filed the suit ill ejectment till the August 1952 and that he had put up with 'inconvenience' for more than 9 years.

2. Appeal No. 369 of 1953 was filed by the plaintiff against the decree passed by the learned trial Judge to the Appellate Court of the Court of Small Causes. In appeal the Court of Small Causes held that the requirement of the plaintiff must be regarded as bona fide. They observed that the plaintiff was not bound to make a claim for possession immediately after the period of the notice dated 6-3-1947.

In the view of the learned Judges of the Appellate Court, the plaintiff in calling upon the defendant forthwith to vacate and deliver possession was inspired by 'a desire which every landlord, placed as appellant is, would have had to occupy the premises, which both in its location and lay out is better than the one occupied by him' and that the plaintiff had acted in a 'gentlemanly way' and 'had favoured the defendant' and the delay in filing the suit was not indicative of absence of bona fides.

The learned Judges, however, were of the view that the requirement of the plaintiff was not reasonable. They also considered the question whether greater hardship was likely to be caused to the defendant if he was called upon to vacate than would be caused to the plaintiff by not requiring the defendant to vacate. They held on a consideration of the evidence that if an order of ejectment was refused to the plaintiff, no hardship at all would result to the plaintiff.

They also held that if an order of ejectment was passed against the defendant It would, in view of his mode of life and his status and his requirements, certainly result in compelling him to live a different mode of life' & 'would cost him enormous sums of money regularly for the rest of his life' and would entail 'considerable hardship' to him.

On the view that the requirement of the plaintiff was not reasonable and refusing to pass an order In favour of the plaintiff would not entail hardship to him and passing an order in ejectment would entail hardship to the defendant, the learned Judges confirmed the order passed by the learned trial Judge.

The plaintiff has now come to this Court in revision and has challenged the order passed by the learned Judges of the Court of Appeal exercising Jurisdiction under Section 29 of Bombay Act 57 of 1947.

3. Now this Revision Application has been filed under Section 115, Civil P. C. and must be decided strictly according to those provisions. It is true that in the petition filed by the plaintiff it was stated in paragraph 8 that:

'Being aggrieved by the judgment and decree passed by the Court of Small Causes in Appeal No. 369 of 1953, the petitioner presented the Revision Application under Section 115, Civil P. C. and also under the powers of superintendence exercised by this Court'.

It must, however, be observed that I have, sitting as a single Judge, revisional jurisdiction exer-cisable only under Section 115, Civil P. C. The powers of superintendence exercisable by this Court according to the rules of this Court can be exercised only by a Division Bench. An application which invokes the powers of this Court under Article 227 of the Constitution can only be heard and decided by a Division Bench and not by a single Judge.

Even if this application, which invokes the powers of superintendence exercised by this Court, be regarded as an application under Article 227 of the Constitution, and on that question I express no opinion, In my view, the only application before me is one invoking revisional Jurisdiction of this Court under Section 115, Civil P. C.

The application was filed as a Revision Application, was numbered as a Revision Application and was placed for orders for issue of Rule before a single Judge and Rule was obtained. If it was desired by the plaintiff to invoke the Jurisdiction of this Court under Article 227 of the Constitution, he should have, at the time of filing the application, insisted that it be numbered, as is the practice of this Court, as a special civil Application and to have it placed before a Division Bench for Rule.

Not having so Insisted and having obtained Rule from a single Judge, on the footing that the petitioner was held invoking the revisional Jurisdiction of this Court it may be safe to assume that the plaintiff desired to invoke only the revisional jurisdiction of this Court.

In any event, no Rule having been issued on the application under Article 227 of tire Constitution I am not called upon to decide whether the plaintiff is entitled to obtain redress of his grievance in exercise of that Jurisdiction.

I may observe that on the application filed it may be open if the plaintiff is so advised to approach a Bench competent to give him relief under Article 227 of the Constitution but so far as I am concerned, I can only deal with the application as a Revision Application under Section 115, Civil P. C. and not as an application invoking the superintendence of this Court vested in it by Article 227.

4. It is well settled that Section 115, Civil P. C. enables this Court to call for the record of any case which has been decided by a Subordinate Court if it appears that the Subordinate Court has 'exercised Jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its Jurisdiction illegally or with material irregularity'.

Evidently the findings recorded in the case by the learned Judges of the Court of Smail Causes are not open to challenge that they have exercised Jurisdiction not vested In them by law, or that they have failed to exercise jurisdiction vested in them by law. Mr. Banaji on behalf of the plaintiff has not contended that the decision of the Courts below is liable to be challenged on either of those grounds.

The only contention which has been raised is that the decision of the Court of Small Causes is liable to be challenged on the ground that the Court has acted in the exercise of its jurisdiction illegally and with material irregularity.

As pointed out by D. F. Mulla in the Civil Procedure Code 'on page 421 of the Vol. 1, 12th Edition of the Civil Procedure Code', it is settled law that 'where a Court has jurisdiction to determine a question and it determines that question, it cannot be said that it has acted illegally or with material irregularity because it has come to an erroneous decision on a question of fact or even of law'.

The leading case on that subject was decided as early as 1884: -- 'Amir Hassan Khan v. Sheo Baksh Singh' 11 Cal 6 (PC) (A). In that case it was held by their Lordships of the Privy Council that

'where a Court has jurisdiction to decide the question before it and In fact decides the question, it cannot be regarded as acting in the exercise of its Jurisdiction illegally or with material irregularity, merely because its decision is erroneous'.

Again as pointed out by their Lordships of the Privy Council in--'Balakrishna Udayar v. Vasudeva Aiyar' AIR 1917 PC 71 (B), Section 115 is not directed against conclusions of law or fact in which the question of jurisdiction is not involved' and the section only applies 'to jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it'.

It need hardly be said that the revisional jurisdiction of this Court is ssverely circumscribed by the provisions of Section 115, C. P. O. It has been necessary to make these observations, because Mr. Banaji on behalf of the plaintiff has rather vehemently contended that 'injustice' and 'grave injustice' has been done to the plaintiff by the erroneous decisions given by the Courts below.

Assuming that the Courts below were in error In arriving at the conclusions to which they have arrived, this Court has still no jurisdiction to interfere with those conclusions unless a question of Jurisdiction of the Courts below arises or a question arises whether in exercise of their jurisdiction the Courts below have acted 'illegally' or with material irregularity.

It appears to me that the decision of the Court of Appeal of the Court of Small Causes is based up- -on what is substantially appreciation of evidence and inferences drawn therefrom and that conclusion is binding upon this Court and is not liable to be challenged in an application under Section 115, Civil P. C.

5. The learned appellate Judges have observed after referring to the evidence of Dr. Bilimoria that the plaintiff and his children had fallen ill after they moved into the building purchased by him in the year 1946. But they observed that the real question that arose for consideration was not whether the plaintiff and his children have fallen ill after coming into the front flat but 'whether the situation and lay out of the premises have been responsible for the illness'.

They also observed that there was no evidence that the air in the premises occupied by the plain-tiff was 'contaminated'. The learned Judges referred to the opinion of Dr. Cooper, ear, nose and throat specialist, that 'moisture and salt laden air and breeze are bad for a person subject to nasal catarrah and cold', and observed that the opinion of Dr. Cooper was not challenged in cross-examination.

Then they observed that the premises occupied by the plaintiff were open to moisture and salt laden air and that exposed as the plaintiff and the members of his family were for nearly seven years to that type of air and breeze the plaintiff had on account of 'passage of time been subject of tender to cold and catarrh'.

But they thought that the plaintiff's, cold and nasal catarrh had 'its origin undoubtedly to the irritation of the mucous membranes of the nerves as a result of dust in the air at the place and locality' in which the plaintiff war, working and if the plaintiff and the members of his family shifted to the flat occupied by the defendant which faced the west, the plaintiff was likely to suffer more as a result of 'direct flow of moisture and salt laden air'. They also observed that there was no evidence as to the nature of illness of plaintiff's children and particularly the ailment of the child Soona'.

The learned Judges then concluded that even if it was generally accepted that direct sea breeze may improve the health of normal persons the health of the plaintiff was likely to be 'consider-ably jeopardised by coming into the suit premises.

For that reason they held that the suit premises were not reasonably required by the plaintiff for his own use and occupation.

6. Now, it may be observed that normally it is for the landlord to judge, whether occupation of certain premises belonging to him will conduce to his well being. The plaintiff was admittedly keeping bad health when he is occupying the premises at the rear of the building and if he thinks that his health would improve by shifting to the flat in the front of the building and exposed to sea air directly, it would not be for the Court to say that the requirement of the plaintiff was not reasonable on the view that the plaintiff might possibly jeopardise his health by shifting into the premises demanded by him.

That criticism may legitimately be made against the view taken by the learned Judges of the Court of Small Causes. I may observe, however that I have not heard the Advocate-General on the view which has been taken by the Court below. But whether the view taken by the learned Judges of the Court of Small Causes is correct or not, it is still a conclusion based on evidence and inferences drawn therefrom regarding the reasonableness of the requirement of the plaintiff. That conclusion is, in my view, binding upon this Court in revision. Even assuming that the learned Judges of the Court of Small Causes were in error in holding that the plaintiff's health would suffer by exposure to direct sea breeze, the Court having inferred that the requirement of the plaintiff was not reasonable. I have no jurisdiction to interfere with the conclusion recorded by the learned Judges of the Court of Small Causes.

It is unnecessary, therefore, to consider the question whether on the circumstances relied upon the Court of Appeal did or did not arrive at a correct conclusion in the question whether passing a decree in favour of the plaintiff as claimed by him would involve greater hardship to the defendant than it would involve upon the plaintiff by refusing to pass a decree in his favour.

It was for the Court of Small Causes to decide the question whether the requirement of the plaintiff was reasonable and bona fide. It is only on proof of the fact that the requirement of the plaintiff is reasonable and bona fide that the Court of Small Causes had jurisdiction to pass a decree in ejectment against the defendant who is otherwise protected by statute.

If for reasons given by the Court below, it is held that the requirement of the plaintiff is either not reasonable or not bona fide, or is not reasonable and bona fide and the plaintiff is not entitled to get a decree for possession of the premises occupied by the defendant, that conclusion must be accepted by this Court and cannot be interfered with under Section 115, Civil P. C.

The learned Judges of the Court of Appeal having come to the conclusion that the requirement of the plaintiff was not reasonable, this application must fall. The rule is, therefore, discharged with costs.

7. Rule discharged.


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