Full Judgment Text
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PETITIONER:
INDIA PIPE FITTING CO.
Vs.
RESPONDENT:
FAKRUDDIN M.A. BAKER AND ANR.
DATE OF JUDGMENT04/11/1977
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
UNTWALIA, N.L.
CITATION:
1978 AIR 45 1978 SCR (1) 797
1979 SCC (4) 587
CITATOR INFO :
R 1987 SC1939 (28)
C 1991 SC 241 (1,7,9)
ACT:
Constitution of India, 1950-Powers of High Court under Art.
227-Power of Superintendence, cannot be exercised to upset
the conclusions of facts, however erroneous, they may be.
HEADNOTE:
The appellant who carries on the business of hardware and
pipe-fitting by purchasing the good-will and the tenancy
rights of the shop along with the stock-in-trade, furniture,
fixture etc. from the original tenant became the tenant in
shop No. 1 on the ground floor of the suit building known as
"Asghar Manzil" in Nagdevi Street Bombay, "predominantly a
locality for the business of hardwares and pipe-fitting".
The eviction suit filed by the respondent in the Small
Causes Court on various grounds including bonafide and
reasonable requirement was dismissed. The court held that
greater hardship could be caused to the tenant, if the
decree of ejectment was passed. An appeal against the
said order having failed, the respondent moved the High
Court Art. 227. The High Court allowed it interfering
with the concurrent findings of facts and held that the
landlord’s requirement was reasonable and bonafide and there
was no question of greater hardship to the tenant.
Allowing the tenant’s appeal by special leave the Court
HELD: 1. The limitation of the Court while exercising
power under Art. 227 of the Constitution is well settled.
Power under Art. 227 is one of judicial superintendence and
cannot be exercised to upset the conclusions of facts, how-
ever, erroneous these may be. [799 B-C]
Waryam Singh & Anr. v. Ammarnath and Anr., [1954] SCR 565;
Nagendra Nath Bora and Anr. v. The Commissioner of Hills
Division and Appeals, Assam and Ors.; [1958] S.C.R. 1240 and
Bathutmal Raichand Oswal v. Laxmibai R. Tarta and Anr.,
[1975] 1 S.C.C. 858 reiterated.
(2) It is possible that another Court may be able to take a
different view of the matter by appreciating the evidence in
a different manner, if it is determinedly chooses to do so.
That will not be justice administered according the law to
which Courts are committed notwithstanding dissertation in
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season and out of season, about philosophies. [800 B]
(3) In the instant case, the High Court arrogated to itself
the powers of a court of appeal which it did not possess
under the law and has exceeded its jurisdiction under Art.
227 of the Constitution. There was nothing so grossly wrong
and unjust or shocking the Court’$ "conscience" that it was
absolutely necessary in the interest of justice for the High
Court to step in under Art. 227 of the Constitution, and
interfere with the conclusions of facts. [800 C-D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1725 of
1972.
Appeal by Special Leave from the Judgment and order dated
22-6-72 of the Bombay High Court in Special Application No.
1441 of 1968.
R. R. Zaiwala, K. J. John and J. S. Sinha for the
Appellant.
Y. S. Desai, P. B. Agarwala and B. R. Agarwala for
Respondent No. 1.
798
The Judgment of the Court was delivered by
GOSWAMI, J.-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.
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, 195 1, 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-cumshow-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
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decree in ejectment were passed. The respondent’s appeal to
the Appellate Bench of the Small Causes Court met with the
same fate and the findings of the trial court were affirmed.
That led to the application under Article 227 of the Consti-
tution before the High Court at the instance of the
landlord. This time the landlord was successful as the
learned single Judge of the High Court allowed the petition
on June 23, 1972, interfering with the concurrent 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.
The learned Judge of the High Court observed :
"In my judgment, every one of the reasons and
the entire approach of the learned Judges of
the appellate Bench was per verse and shows a
lack of awareness of the real conditions of
accommodation in Bombay, at all times material
to the suit and even now."
799
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........."
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.
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 Another
v. Amarnath and Another(1) 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(2) 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".
The same view was reiterated by another Constitution Bench
of this Court in Nagendra Nath Bora & Another v. The
Commissioner of Hills Division and Appeals, Assam and
Others. (3) Even recently in Bathut mat Raichand Oswal v.
Laxmibai R. Tarta and Another, (4) 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
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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 twocourts
below against the landlord by appreciating the entire
evidence.After examining the reasons given by
(1) [1954] S.C.R. 565.(2) A.I.R. 1951 Cal 193.
(3) [1958] S.C.R. 1240,(4) [1975] 1 S.C.C. 858.
800
both the courts it is not possible to hold that the
conclusions are "perverse" or even that these are against
the weight of evidence on record. It is a case of
reasonably possible factual appreciation of the entire
evidence and circumstances brought on the record.
It is possible that another court may be able to take a
different view of the matter by appreciating the evidence in
a different manner if it determinedly chooses to-do so.
However, with respect to the learned Judge (Vaidya, J.) that
will not be justice administered according to law to which
courts are committed notwithstanding dissertation, in season
and out of season, about philosophies.
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 reasoning 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 with the
decisions of the courts below. In our opinion the High
Court arrogated to itself the powers of a court of appeal,
which it did not possess under the law and has exceeded its
jurisdiction under Article 227 of the Constitution.
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.
S.R. Appeal allowed.
801