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Kamlabai W/O Ramlal Vs. Aminabee W/O Shawkat Ali - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 2367 of 1977
Judge
Reported in1982(1)BomCR499
ActsHyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 - Sections 10(3); Constitution of India - Article 227
AppellantKamlabai W/O Ramlal
RespondentAminabee W/O Shawkat Ali
Appellant AdvocateS.C. Bora, Adv. ; for R.M. Agrawal, Advs.
Respondent AdvocateS.S. Joshi, Adv.
Excerpt:
.....- according to the provisions of section 10(3)(c), the controller, if satisfied that the landlady bona fide requires the premises, he shall make an order directing the tenant to put the landlady in possession, provided that such an order application under section 10(3)(c) of the said act is to be rejected if he were to be satisfied that the hardship which would be caused to the tenant will outweigh that of the landlady. it is true that it would have been better for the learned district judge as well as the learned controller to have even a specific finding on the question of hardship. having satisfied myself that the bona fide and reasonable needs are proved by the landlady in this case as per the provisions of law, independently. i have heard the matter on merits and i am satisfied..........the concurrent finding of facts by the two courts below that the respondent/landlady required the suit premises bona fide and reasonably for her personal use and occupation is sought to be challenged by this petition filed by the original tenant against whom the decree for possession is passed. before i deal with the matter on merits, it is necessary that the guidelines laid down by the supreme court in dealing with petitions filed under article 227 of the constitution of india should be borne in mind. this petition is filed under article 227 of the constitution of india. the power of superintendence of the high court under article 227 of the constitution of india has been interpreted more than once by the supreme court. this extraordinary power has to be exercised most sparingly and.....
Judgment:

R.S. Bhonsale, J.

1. The concurrent finding of facts by the two courts below that the respondent/landlady required the suit premises bona fide and reasonably for her personal use and occupation is sought to be challenged by this petition filed by the original tenant against whom the decree for possession is passed. Before I deal with the matter on merits, it is necessary that the guidelines laid down by the Supreme Court in dealing with petitions filed under Article 227 of the Constitution of India should be borne in mind. This petition is filed under Article 227 of the Constitution of India. The power of superintendence of the High Court under Article 227 of the Constitution of India has been interpreted more than once by the Supreme Court. This extraordinary power has to be exercised most sparingly and only in appropriate cases. This power cannot be exercised or revoked to correct an error of fact. The High Court cannot under the guise of exercising jurisdiction under Article 227 of the Constitution of India convert itself into a Court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court or Tribunal final on facts. The High Court cannot, while exercising jurisdiction under Article 227 of the Constitution of India, interfere with findings of fact recorded by the subordinate Court or Tribunal. It's function is limited to seeing that the subordinate Court or Tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and reappreciating it. These guidelines laid down in Babhutmal v. Laxmibai, reported in : AIR1975SC1297 apply to the facts of this case on all fours. I may further add that in this exercise of discretionary jurisdiction by the High Court, the party who seeks relief under Article 227 of the Constitution of India must not be guilty of negligence. As I will presently show, on diligence has been shown by the petitioner/tenant when the proceedings were going on before the Rent Controller.

1-A. The present respondent/landlady had filed an eviction suit before the Rent Controller, Aurangabad on July 12, 1971 for possession of the suit premises under the provisions of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954. Her case before the Rent Controller was that she was the owner of the suit premises bearing Municipal House No. 1-11-164 situated at Mohalla Juna Bazar, Aurangabad. The petitioner was admittedly a tenant in Rooms Nos. 6 and 7 on a monthly rent of Rs. 30/-. The main ground on which the suit came to be filed was that the respondent/landlady required the suit premises bona fide and reasonably for her own use and occupation. Her case was that she had a large family and it consisted of six school-going daughters and two of them were studying in college. She also had one son. All the children were studying and two daughters were studying in the B.A. Class. One daughter was in Tenth Standard and the other was in Seventh Standard. She needed the suit premises for her children's study. Both, the respondent/landlady and her husband were keeping ill health. Her husband had been operated upon. In the brief evidence that was recorded, she also stated that she has no other house besides this one and she wanted this house for her personal use and occupation. She was cross-examined and all that was put to her by the petitioner/tenant that her husband and she were not suffering from any illness which of course the landlady denied. No question of any reference was put to her in cross-examination. Mr. Bora, the learned Counsel appearing on behalf of the petitioner/tenant drew my attention to a portion of the cross-examination where the landlady seems to have admitted that there were other tenants also. That has hardly any relevance to the landlady's bona fide and reasonable requirements for possession of the suit premises.

2. The chequered history of this suit before the Rent Controller needs to be briefly referred to.

The learned District Judge has pointed out in paragraph 3 of his judgment that the suit was pending before the Rent Controller for three years and on several dates the petitioner/tenant refused to attend the proceedings. Inspite of the indulgences shown by the Rent Controller to the present petitioner/tenant, nothing of merit was put to the landlady to destroy her case for possession of the suit premises. As I have stated earlier, if anything the cross-examination of the landlady was most perfunctory.

3. When the petitioner/tenant carried an appeal to the District Court, in the appeal memo that was filed, except stating that the ingredients of bona fide and personal use having not been proved beyond doubt, no other grounds challenging the bona fide and reasonable requirements were taken up. The learned District Judge, therefore, had no other alternative except to hold that there was no merit in the appeal both, on the question sufficient opportunity not been given to her to lead evidence or on the question of bona fide and reasonable personal requirements. He also held in para 6 of his judgment that the respondent/plaintiff had large family and needed the additional accommodation. She has a two rooms accommodation and a kitchen room. According to the learned District Judge, for the grown up family and two of them being daughters going to college and others schooling, the accommodation of the plaintiff is insufficient. He further observed that it has not been shown that the plaintiff's accommodation is sufficient for her needs. In view of these findings arrived at, the learned District Judge, Aurangabad dismissed the tenant's appeal by his order dated July 5, 1977.

4. It is this finding succinctly recorded by the District Judge that is sought to be challenged in this Court. I have already indicated the scope and limitation of the powers to be exercised by this Court, under Article 227 of the Constitution of India. Mr. Bora, the learned Counsel, however, sought to argue that the decisions of both courts below are illegal inasmuch as they have not considered the question of greater hardship. He contended that before passing a decree for eviction against the petitioner/tenant, both the courts below did not consider the provisions of section 10(3)(c) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954. What was contended was that this was a case where the landlady had filed an application for possession of a part of the residential premises under section 10(3)(c) of the said Act. If that were so, it was mandatory for the two courts below to give a finding in terms of the provisions of section 10(3)(c) of the said Act. According to the provisions of section 10(3)(c), the Controller, if satisfied that the landlady bona fide requires the premises, he shall make an order directing the tenant to put the landlady in possession, provided that such an order application under section 10(3)(c) of the said Act is to be rejected if he were to be satisfied that the hardship which would be caused to the tenant will outweigh that of the landlady. Though, there is no special finding on the hardship, in my view, this is one of the rare cases where the facts themselves are self-eloquent. It is true that it would have been better for the learned District Judge as well as the learned Controller to have even a specific finding on the question of hardship. The requirements of the landlady stare in one's eyes. In two rooms, a family of nine people stay. Her husband is suffering from headaches. He was operated upon. The landlady herself now and then falls ill and in such an atmosphere how would two college going daughter prosecute their studies? The other sons and daughter are school going. The landlady's needs are greater since it can be seen that she has a large family and specially because college going girls would need quieter atmosphere to pursue their studies. In two rooms how can ailing parents with six to seven school and college going children accommodate themselves. After all, this house has been purchased by the landlady for her own use and occupation. It is also one of the rare cases when the tenant also happens to have a large family but neither of the two courts below considered the question of greater hardship. That question was to considered de hors the tenant's reasonable requirement. If the landlady requires the possession of the suit premises by way of additional accommodation, it is bona fide requirement. In this case I have no doubt whatsoever that the landlady and her ailing husband with seven college and school going children would reasonably need additional premises. Having satisfied myself that the bona fide and reasonable needs are proved by the landlady in this case as per the provisions of law, independently. I have considered the question of greater hardship as it was not considered by the two courts below. When the landlady purchased the house, she purchased it for her own use and occupation and that her requirements for additional premises are reasonable. In my opinion, in this particular case, greater hardship would be caused to the landlady by refusing to pass a decree than by passing a decree against the tenant. I, therefore, have asked the Counsel appearing for both the parties whether out of these two rooms, one room, could be given to the respondent/landlady. However, the petitioner/tenant is not agreeable. I have heard the matter on merits and I am satisfied that the landlady has proved her bona fide and reasonable requirement for additional premises. On the question of greater hardship, I have also come to the conclusion that in view of the large family of the landlady and in view of the illness of her husband and her own ailment, greater hardship would be caused to the landlady if I were to refuse to confirm the decree passed by the lower Court. I am aware that the petitioner is also a widow and has four daughters and one son. The husband of the petitioner has recently died and therefore, their predicament was all the greater but that is no reasonable ground why decree for eviction should be refused. It is one of those difficult questions to find out where greater hardship lies. Taking all the facts and circumstances into consideration, I have come to the conclusion that greater hardship would be caused to the respondent if the decree of possession against the tenant were not confirmed. Accordingly, this petition has to be rejected. The decree for possession of the suit premises passed by the Rent Controller on March 18, 1976 and confirmed by the learned District Judge, Aurangabad on July 5, 1977 must be confirmed. However, in the facts and circumstances of the case, there will be no order as to costs.


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