1. (After stating the facts and finding of the lower Court in paras1 to 6, His Lordship proceeded).
2. Mr. Abhale has assailed the finding of the learned Assistant Judge and has contended that there was no warrant for interfering with the finding of fact recorded by the Court of first instance. In support of his contention he relied upon a judgment of Mysore High Court, as it then was, in Fitter Peera Saheb v. K. Balchandra Rao Air 1972 Mys 14. It has been mentioned in this judgment that in ordinary circumstances when the owner says that he requires his premises for his own use and occupation, the Court must start with a presumption that the land lord's claim is true. It has lord is false is not sufficient to rebut that presumplion. I am unable to accept the proposition contained in this judgment. This is contrary to what has been said by the Supreme Court in M. M. Quasim v. Manohar Lal Sharma, : 3SCR367 , about the approach to be adopted by the courts under the Rent Acts. The Supreme court has observed (at pp. 1120-21) :
'The time honoured notion that the right of re-entry is unfettered and that the owner landlord is the sold Judge of his requirement has been made to yield to the needs of the society which had no enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter. One such ground is of personal requirement of landlord.'
3. In the present case, as I have already mentioned above, the learned Assistant Judge has held that the house of which the suit premises form part is not of the ownership of the first plaintiff for whose use and occupation the suit premises are being sought. The third plaintiff for who is the owner of the house and, therefore, the landlord of the defendant, could have, as the learned Assistant Judge has said, claimed possession of the suit remises on the ground that the same are required for the use and occupation of her son. But unfortunately in the present case the third plaintiff has not stepped into the witness box nor has she offered to get examined on commission with a view to prove the bona fide requirement of the suit premises. As has been held in Nanalal goverdhanlal and Co. v. Samrutabai Lilachand Shah, : AIR1981Bom1 , the bonafide requirement is in the first place a state of mind though it may be something more. It must therefore, be deposed to by the person who is requiring the premises under Sec. 13(1)(g) namely, the landlord. If the landlord does not step into the witness-box to bring before the Court legal evidence for proving his requirement, then it cannot be said that he reasonably and bona fide requires the premises as mentioned in Section 13(1)(g). The landlord can delegate the authority to conduct a case but he cannot delegate the duty to depose. On this ground also the finding given that the landlords' bona fide and reasonable requirement of the suit premises has not been proved, could be sustained.
4. Levelled against the judgment of the Appellate Judge in so far as that judgment relates to the finding under S. 13(2) of the Bombay Rent Act. According to Mr. Abhale, the Court of Appeal should not lightly interfere with the finding given by the Court of first instance on the question of comparative hardship. In support of this proposition he has relied upon the judgment in Kishinchand Murjimal v. Bai Kalavati Hansraj Dwarkadas, : AIR1973Bom46 , wherein it is mentioned as follows :-
'It is well settled that an Appeal Court will be ordinarily slow to interfere with the decision of the trial Judge on questions like the balance of hardship, for this is primarily a question of fact. To succeed the appellant must show that the trial judge mis-directed himself on a question of law or that he has based his judgment on some finding of fact on which there was no evidence. If in drawing up the statutory balance-sheet of hardship, there is some evidence of hardship on each side the decision of the trial Judge must be normally final see Sims v. Wilson (1946 (2) All ER 261 referred to above.'
5. The learned Judge delivering the judgment in Kishinchand Murijimal's case has not referred to any binding judgments on the basis of which it could be said that it is well settled in law that an Appeal Court will be ordinarily slow to interfere with the decision of the trial Judge on the question of balance of hardship for this is primarily a question of fact. I have examined Sims v. Wilson 1946-2 All ER 261. There the Court of Appeal was considering the appeal under the Country Courts Act in a proceeding instituted for the possession of the tenanted premises. In the concluding part of the judgment of Morton, L. J. it has been stated as follows:-
'In my view, the decision of the judge on this question of fact is unassailable. There was evidence upon which he could properly come to the conclusion at which he arrived and I cannot find that any misdirection is established.'
6. Reading the said judgment in the light of the provisions of the Country Courts Act, one notices that there was no appeal to the High Court against the order passed by the Country Judge under the Rent Act on a question of fact. In the appeal to the High Court against the order passed by the Country Judge under the Rent Act on a question of fact. In the appeal preferred the result of a misdirection or the result of erroneous application of law.
7. Under Sec. 29 of the Bombay Rent Act there is no restriction whatsoever on the powers of an Appeal Court while deciding the correctness or otherwise of a decision given by the Court of first instance. The powers of the Appeal Court under Sec. 29 must be deemed to be as wide as the powers of the Appeal Court under S. 96 of the Civil P. C. In such an appeal it is not only permissible but the duty of an Appeal Court as a final Court of facts to examine every finding given by the Court of first instance - whether that finding is on a question of fact or on a question of law. One cannot see how the Court of Appeal could be slow in interfering with finding of fact recorded by the Court of first instance. Where, however, a finding of fact is recorded by the Court of first instance after seeing the witnesses and watching their demeanour, that finding in so far as it depends on the credibility of oral evidence should not be lightly interfered with. The law, however, gives a right of appeal from the judgment of a trial Court on questions of fact as well as on questions of law and the Court of Appeal has to make up its own mind after carefully weighing and considering the judgment of that Court, and if, on a full consideration of all the material it is satisfied that that judgment is clearly wrong, it should not shrink from overruling it. (See Ahsanullah Shah v. Ziauddin : (1937)39BOMLR761 .
8. To accept the limited nature of the powers suggested by Kishinchand Murjimal's case is to obliterate the distinction between an appeal and a revision. The Supreme Court has pointed out in State of Kerala v. K. M. C. Abdulla & Co., : 1SCR601
'There is an essential distinction between an appeal and a revision. The distinction is based on differences implicit in the said two expressions. An appeal is a continuation of proceedings; in effect the entire proceedings are before the Appellate Authority and it has power to review the evidence subject to the statutory limitations prescribed. But in the case of a revision, whatever powers the revisional authority may or may not have, it has not the power to review the evidence unless the statute expressly confers on it that power. That limitation is implicity in the concept of revision.'
9. In Laxminarayan v. Returning Officer.
'While the trial Court has not only read the evidence of witnesses on record but has also read their evidence in their faces, looks and demeanour, the Appellate Court is confined to their evidence on record. However, the Appellate Court may interfere with a finding of fact if the trial Court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial Court.'
10. An appeal is a creature of Statute and the powers and jurisdiction of Appellate Court must be circumscribed by words of the statute itself. At the same time a Court of Appeal is a 'Court of error' and its normal function is to correct the decision appealed from and its jurisdiction must be coextensive with that of the trial Court. This has been pointed out by a Division Bench of this Court in Pandit Bhullan v. Sarvo daya Vita Kavelu Kumbhar Ram Sahakari Audhogik Utpadak Sanstha, Bina, : AIR1978Bom259 . Proceeding further it has been pointed out :-
'It cannot and ought not to do something which the trial Court could not do. An appeal is a proceeding in which the question is whether the order appealed from was right on the material placed before the lower Court. The Appellate Court therefore can go into question of fact as well as of law and assess the evidence itself in-dependently.'
11. I have cited above only some of the judgments which show unmistakably that where a finding is not depending upon observation of the demeanour of the demeanour of the witnesses it can be subject matter of examination by the final Court of facts independent of what the trial Court has said. I do not think that the Appeal Court is in law bound by the finding given by the trial Court or is otherwise precluded from examining the correctness of the said finding. Since THE OBSERVATIONS IN Kishinchand Murjimal's case were made on the basis of the judgment in Sims v. Wilson and since I have shown that the said judgment must be confined to the facts of that case, I am of the opinion that there is no warrant for the proposition that in an appeal under Sec. 29 of the Bombay Rent Act the Appeal Court should be slow to interfere with the decision of the trial Court on the question of balance of hardship. I, therefore, reject the contention of the finding given by the Court of first influence on the question of hardship.
12. (The rest of the judgment is not to this report.
13. Petition dismissed.