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India Pipe Fitting Co. Vs. FakruddIn M.A. Baker and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtSupreme Court of India
Decided On
Case NumberCivil Appeal No. 1725 of 1972
Judge
Reported inAIR1978SC45; (1977)4SCC587; [1978]1SCR797; 1977(9)LC742(SC)
ActsConstitution of India - Article 227
AppellantIndia Pipe Fitting Co.
RespondentFakruddIn M.A. Baker and anr.
Appellant Advocate R.R. Zaiwala,; K.J. Johan and; J.S. Sinha, Advs
Respondent Advocate V.S. Desai, ; P.B. Agarwala and ; B.R. Agarwala, Advs.
Cases ReferredRaichand Oswal v. Laxmibai R. Tarta and Anr.
Prior historyAppeal by special Leave From the Judgment and Order dated June 22, 1972 of the Bombay High Court in Special Application No. 1441 of 1968
Excerpt:
.....in the day to refer to the decision of the constitution bench of this court in waryam singh and anr. [1954]1scr565 where the principles have been clearly laid down as follows: 9. we are clearly of opinion that there was no justification for interference in this case with the conclusions of facts by the high court under article 227 of the constitution. counsel for both sides took us through the reasonings given by the high court as well as by the courts below and we are unable to hold that the high court was at all correct in exercising its powers under article 227 of the constitution to interfere the courts below.p.k. goswami, j.1. this appeal by special leave is directed against the judgment and order of the bombay high court in an application under article 227 of the constitution against the judgment and decree of february 29, 1968, passed by the appellate bench of the small causes court at bombay by which it affirmed the earlier decree of july 22, 1962, of the small causes court at bombay by which it affirmed the earlier decree of july 22, 1962, of the small causes court at bombay in suit no. 4271 of 1959 dismissing the respondent's suit.2. there is no dispute in this appeal that the appellant is the tenant and the first respondent is the landlord. it is not necessary to describe the history of the assignment of the tenancy as well as the transfer of the ownership of the premises to the first.....
Judgment:

P.K. Goswami, J.

1. This appeal by special leave is directed against the judgment and order of the Bombay High Court in an application under Article 227 of the Constitution against the judgment and decree of February 29, 1968, passed by the Appellate Bench of the Small Causes Court at Bombay by which it affirmed the earlier decree of July 22, 1962, of the Small Causes Court at Bombay by which it affirmed the earlier decree of July 22, 1962, of the Small Causes Court at Bombay in Suit No. 4271 of 1959 dismissing the respondent's suit.

2. There is no dispute in this appeal that the appellant is the tenant and the first respondent is the landlord. It is not necessary to describe the history of the assignment of the tenancy as well as the transfer of the ownership of the premises to the first respondent from his father who was the original landlord under which another party continued as tenant till May 1, 1951, when the present appellant became the tenant by purchasing the goodwill and the tenancy rights of the shop along with the stock-in-trade, furniture, fixture, etc., from the original tenant, Messrs United Tube & Hardware Co. The tenancy is in respect of the premises being Shop No. 1 on the ground floor of the building known as 'Asghar Manzil' at 146, Nagdevi Street, Bombay, 'predominantly a locality for the business of hardwares and pipe-fitting'. The Manzil has a ground floor and three other storeys. The entire property has been let out by the respondent to different persons. The appellant carries on the business of hardware and pipe-fitting in this shop. The respondent sought to evict the appellant by instituting a suit in the Small Causes Court on March 17, 1959, founding his claim on several grounds but we are confined in this appeal only to the respondent's bona fide and reasonable requirement of the premises for his own use and occupation 'as an architect and engineering designer' to run his 'office-cum-studio-cum-show-room' therein. 'The dimensions of the suit premises are 51(9) (63) feet'. The other grounds, namely, of subletting and irregular payment of rent were given up. The trial court dismissed the suit on July 2, 1962, holding that the premises were not reasonably and bona fide required by the respondent. The court also held that greater hardship would be caused to the tenant if the decree in ejectment were passed. The respondent's appeal to the Appellate Bench of the Small Court met with the same fate and the findings affirmed. That led to the application under Article 227 of the Constitution before the High Court at the instance of the landlord. This time the landlord was successful as the learned single allowed the petition on June 23, 1972, interfering findings of fact and held that the landlord's requirement was reasonable and bona fide and there was no question of greater hardship to the tenant.

3. The learned Judge of the High Court observed:

In my judgment, every one of the reasons approach of the learned Judges of the appellate per verse and shows a lack of awareness of of accommodation in Bombay, at all time; and even now.

4. The learned Judge further observed that 'it seems that in the view of the learned trial Judge, richer the man greater the hardship to him and poorer the man lesser the hardship to him...'.

5. The appellant made a grievance before us that the learned Judge of the High Court did not grant any time to him to obtain stay orders from the Supreme Court which was then in vacation. Any way, the appellant moved the learned Vacation Judge of this Court (Mathew, J.) on June 30, 1972 and obtained ex-parte stay of eviction and later obtained special leave to appeal after notice of motion. That is how the matter has come before us.

6. The limitation of the High Court while exercising power under Article 227 of the Constitution is well-settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts however erroneous those may be. It is well-settled and perhaps too late in the day to refer to the decision of the Constitution Bench of this Court in Waryam Singh and Anr. v. Amarnath and Anr. : [1954]1SCR565 where the principles have been clearly laid down as follows:

This power of superintendence conferred by Article 227 is, as pointed out by Harries C.J. in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee : AIR1951Cal193 to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errOrs.

7. The same view was reiterated by another Constitution Bench of this Court in Nagendra Nath Bora and Anr. v. The Commissioner of Hills Division and Appeals, Assam and Ors. : [1958]1SCR1240 Even recently in Bathut mal Raichand Oswal v. Laxmibai R. Tarta and Anr. : AIR1975SC1297 , dealing with a litigation between a landlord and tenant under Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, this Court relying on its earlier decisions observed as follows:

If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 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.

Whether the landlord's requirement is bona fide and reasonable has been concurrently found by the two courts below against the landlord by appreciating the entire evidence. After examining the reasons given by both the courts it is not possible to hold that the verse' or even that these are against the weight of is a case of reasonably possible factual appreciation and circumstances brought on the record.

8. It is possible that another court may be able of the matter by appreciating the evidence in a determinedly chooses to do so. However, with Judge (Vaidya, J.) that will not be justice law to which courts are committed notwithstanding dissertation, in season and out of season, about philosophies.

9. We are clearly of opinion that there was no justification for interference in this case with the conclusions of facts by the High Court under Article 227 of the Constitution. We are also unable to agree with the High Court that there was anything so grossly wrong and unjust or shocking the court's 'conscience' that it was absolutely necessary in the interest of justice for the High Court to step in under Article 227 of the Constitution. Counsel for both sides took us through the reasonings given by the High Court as well as by the courts below and we are unable to hold that the High Court was at all correct in exercising its powers under Article 227 of the Constitution to interfere the courts below. In our opinion the High powers of a court of appeal, which it did not has exceeded its jurisdiction under Article 227 of the Constitution.

10. In the result the appeal is allowed. The judgment and order of the High Court are set aside and those of the trial court and the appellate Bench are restored. Since there was an order at the time of granting the special leave that costs would be borne by the appellant in any event, the first respondent will be entitled to his costs in this appeal.


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