Bavalal Jadavji vs Jivanlal Gopalji

Chhatpar, J.—This is a revn. appln from the judgment & decree of the Dist. J., Central Saurashtra Division, setting aside the decree passed

by ''the joint Judge, Junior Division, Rajkot, for ejectment & rent, passed in favour of the present appct against the opponent. The facts leading to

this revn appln. in brief are that the appct pltf purchased a property on 22-11.1948 for Rs. 20,501. In the property the opponent deft, was a

tenant & he continued as such of the pltf. after the purchase On 22-4-1949 the pltf gave a notice to the deft. to vacate the premises, as the pltf.

required the premises reasonably & bona fide for his own use & occupation.

Both the parties are dealing in silverware. The pltf manufactures anklets & the deft. silver vessels & other articles. There is no competition

between the two as regards their businesses. The pltf at present is occupying a premise on rent wherein he has installed his machinery for the

manufacture of anklets the deft, has also installed big machinery in the premises which is the subject-matter of the suit. The pltf. alleges that he

purchased this property for the purpose of shifting his business to it as be was feeling congested in his present premises occupied by him as a

tenant. The pltf in his notice to suit offered his own premises for exchange to the deft. & he also offered to arrange with his own landlord that the

deft, be recognised his tenant & he further offered to bear the expenses of shifting the machinery to the premises at present occupied by the pltf.

The deft. did not agree to this offer & the pltf. was consequently obliged to file a suit for eviction on 30-6-1949. It may be mentioned that the deft

was paying Rs. 30 p.m. as rent to the pltf., while the pltf. was paying Rs. 50 to his own landlord. There is not much material difference between the

two premises so far as accommodation is concerned. Both the premises are situated in the same locality. In the suit there was also dispute about

fair & reasonable rent. The deft. claimed that the rent charged was excessive. The trial Ct. agreed with the contentions of the pltf. &held that he

required the premises reasonably & bona fide for his own use & occupation: it also decided in his favour that the comparative hardship on him was

greater if a decree for ejectment was not made. Against this decree, the opponent deft. filed an appeal to the Dist. Ct. The Dist. Ct. reversed the

finding as to the bona fide & reasonable requirement of the plff. On the question of hardship, it held that ""balance of hardship in this case was equal

between the parties"". As regards standard rent, the Ct. fixed it at Rs. 16-8-0 Against this finding of the Dist. J. the pltf. landlord has filed the

present revn. appln.

The learned Counsel for the appct. Mr. C.N. Chinoy has not questioned the finding as to the standard rent arrived at by the Dist. Ct. but he has

very strongly urged that the decision on the question of the bona fide & reasonable requirement of the landlord arrived at by the learned Dist J. is

manifestly wrong & perverse & that I should exercise the extraordinary powers which the H.C. possesses of superintendence under Article 227,

Const. Ind. Now the lower appellate Ct. has very clearly raised the points for determination involved in the case. The first two points are;

(1) Whether the pltf. reasonably & bona fide requires the premises in possession of the deft, for his personal use?

(2) Whether greater hardship would be caused by passing a decree for eviction than by refusing to pass it?

Both these points are answered in the negative. Now it is not disputed that the learned Dist. J. had not raised proper issues in the case or has

committed any irregularity or illegality in procedure nor is there any question of jurisdiction involved which might attract the application of Section

115, C. P.C. The Disc. J. had jurisdiction & he has exercised it in accordance with the procedure laid down by law. The limits of interference by a

Ct. of revn. u/s 115 have been very clearly laid down by the recent ruling of the P.C. in the case of Venkatagiri v. Hindu Religious Endowments

Board, Madras AIR 1949 156 wherein their Lordphips of the P. C. laid down as under:

The Section empowers the H.C. to satisfy itself upon three matters: (a) that the order of the subordinate Ct. is within its jurisdiction; (b) That the

case is one in which the Ct. ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Ct. has not noted Illegally, that is, in breach of

some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that

it may have affected the ultimate decision. If the H.C. is satisfied upon those three matters, it has no power to interfere because it differs, however

profoundly, from the conclusions of the subordinate Ct. upon questions of fact or law. There can be no justification whatsoever for the view that

Section 115(a) was intended to authorise the H.C. to interfere & correct gross & palpable errors of (subordinate Cts. It would indeed be difficult

to formulate any standard by which the degree of error of Subordinate Cts. could be measured.

It is clear that if the present appln. is to be judged from these principles, the judgment of the learned Dist. J. would be unassailable; but; the

learned Counsel for the appect has argued that after the passing of the Constitution of India, the powers of she H.C. are considerably enlarged.

Article 227 of the Constitution of India lays down that every H.C. shall have superintendence over all Cts. & tribunals throughout the territories in

relation to which it exercises jurisdiction, & it is contended that such powers include both powers of administrative & judicial interference with the

proceedings of all Cts. & tribunals. It is also argued that such powers are similar to those which the H.C. enjoyed u/s 107, Government of India

Act, 1919. The Government of India Act, 1935, contained a limitation by Clause (2) of Section 224 which provided as under:

Nothing in this section shall be construed as giving, to a H.C. any jurisdiction to question any judgment of any inferior Ct. which is not otherwise

subject to appeal'' or revn.

This limitation has been removed in the present Constitution of India. A good many authorities have been cited before me which have interpreted

the powers of superintendence under the Government of India Acts of 1919, & 1935 & the present Constitution of India. There was some conflict

of decisions whether the H.C. u/s 107 of the Act of 1919, possessed powers of interference in judicial matters; but the majority of decisions held

that such powers of interference (existed?) both in administrative & judicial matters. As regards the Government of India Act 1935, the Bombay

H.C. in the case of Kavasji Pestonji Dalal Vs. Rustomji Sorabji Jamadar, held that the prohibition contained under Sub-section (2) of Section 224

referred to those judgments of inferior Cts. which were not otherwise subject to appeal or revn. to the H.C. & the prohibition could not and did

not apply to judgments which were subject to appeal or revn. It was also observed that the powers of judicial interference were not wholly taken

away, & the Ct. held that if a judgment was subject to appeal or revn. it seemed the H.C. would have powers to interfere judicially, apart from &

over & above merely dealing with those judgments in appeal or revn. The Bombay H.C. differed from rulings of several other H.Cs. cited in the

same case at p. 46 of the report; but there is no doubt that under the present Constitution there is no such limitation as prescribed by Sub-section

(2) of Section 224 of the Government of India Act, 1935.

The powers of interference under Article 227 relate to both administrative & judicial matters. The Calcutta H.C. in a recent case of Abdur

Rahim v. Abdul Jabbar AIR 1960 Cal. 379 observed as under:

It was, however, urged before us that we could not interfere u/s 115 C.P.C. Whether an amendment should or should not be granted is a matter

within the discretion of the Ct. & it is urged that this Ct. cannot interfere u/s 115 C.P.C., with the exercise of such discretion.

The very point was considered by a Bench of this Ct. in Loke Nath Mukherjee and Others Vs. Abani Nath Mukherjee and Others, . This was a

case decided before the Government of India ''Act, 1935. A Bench which decided the case held that there is no hard & fast rule that in no

circumstances can a discretionary order by a Judicial Officer be reviewed either u/s 115, C.P.C. or u/s 107, Government of India Act or under the

combined operation of both. The Bench further held that the Ct. could interfere where the lower Cc. had wrongly rejected an appln. to amend.

Is might be suggested that the recent pronouncements of their Lordships of the P.C. are not consistent with this case. But it must be observed that

this case deals not only with Section 115, C.P.C., but with Section 107, Government of India Act, 1919, Courts have held that u/s 107, Govt. of

India Act, 1919, orders in the nature of orders in revu. could in proper cases be made. Any right to make such orders however was expressly

taken away by the Government of India Act 1935, which limited the rights of superintendence to what I may dascribe as purely non-judicial

matters. In the new constitution however that limitation has been removed & the light of superintendence which this Ct. now has is practically the

right it had under the Act of 1919. The position today, therefore, is precisely the same as it was when Lake Nath''s case AIR (21) 1934 Cal. 102,

was decided, & therefore, it appears to me that we must follow that decision as it is binding on us. We, therefore, must hold that a now can

interfere either u/s 115, C.P.C., or under powers which we now possess under the new Constitution to superintend, the lower Ct.

The state of law as pointed out by their Lordships of the Calcutta H.C. appears to be the correct one that the powers of superintendence now

enjoyed by the H.C. include interference in both administrative & judicial matters; but that does not mean that the H.C. should invoke these

powers in every case where the Ct. finds some error of law or fact in the proceedings of the lower Cts. & tribunals. If this were so, the limitation

placed upon & Ct. of second appeal u/s 100, C.P.C., & a Ct. of revn. u/s 115, C.P.C. would become nugatory. It would, therefore, be instructive

to refer to cases decided under the present Constitution & also under the previous Government of India Acts, particularly Act of 1919, in what

cases the Cts. did interfere in judicial matters.

In the above case of the Calcutta H.C., reported in Abdul Rahim Naskar Vs. Abdul Jabbar Naskar and Others, , the H.C. allowed an

amendment appln, holding that it was necessary to decide the real issues between the parties. In two cases reported in (H.D. Chitterjee v. L.B.

Tribedi AIR 1922 Cal. 487 & Abdul Huq v. Mohamaddin AIR 1923 Cal. 311, the H.C. of Calcutta interfered in the exorcise of their powers of

superintendence where the Rent Controller had refused to fix the standard rent of the premises in question. In Pigot v. Alli Mohammad AIR 1922

Cal. 30, the H.C. set aside proceedings u/s 145, Cr.P.C., holding that the same were without jurisdiction. The same H.C. interfered in the case of

Moiram Bewah v. Mrijan Sardar AIR 1920 Cal. 417, where there was a patent illegality or irregularity. The Patna H.C. in the case of Nilmani

Nath v. Pratap Udai Nath AIR 1919 Pat. 573 interfered where the order of the lower Ct. was tantamount to denial of the right of fair trial. There

the lower Ct. has refused to issue summons asked for by the aggrieved party. In the case of Brindaban Chander v. Gour Chandra AIR 1920 Pat.

668 , the same Ct. interfered to correct a gross error apparent on the face of the record & in the case of Mt Maharup Kuer Vs. Mahabir Singh

and Others, the same H.C. interfered, where the decision of the lower Ct. was so bad on the face of it as to be, in a sense, a denial of Justice. The

H.C. issued an injunction to prevent an irreparable injury.

The question of interference u/s 107, Government of India Act, 1919, in exercise of powers of superintendence came before the Bombay H.C.

in the case of Emperor v. Bal-Krishna Hari AIR 1933 Bom. 1 , wherein the right of the H.C. to interfere both in Judicial & administrative matters

was recognised & it was held that under such powers the H.C. could alter a sentence which was patently unreasonable. In a later case of Emperor

Vs. Jamnadas Nathji Shah, the H.C. sets aside a conviction which on the face of it was illegal, although the aggrieved party had not availed himself

of the right of appeal available to him. This case arose while the Government of India Act of 1919 was in force. None of the cases cited before me

has gone to the length of stating that the H.C. should interfere to upset a finding on a simple issue of fact which depends upon the appreciation of

evidence.

In the light of the above, let me examine the facts in the present case. The Dist. J. has considered the issue of bona fide & reasonable

requirement of the landlord, as far as I can gather, from these aspects : (1) whether the landlord actually purchased the property with the intention

of using it personally & shifting his business to it, (2) whether his requirement is real & it does not amount to a mere desire of every landlord to

occupy his own property & (3) whether he would be materially benefited if he shifted to the premises in suit. On all these points the Dist. J. went

minutely into the evidence & came to conclusions against the landlord. The Dist. J. holds that the delay in giving the notice to quit which amounts to

a period of over four months after the purchase of the property has not been satisfactorily explained. He states that the landlord did not insist upon

the vendor of the property to give vacant possession. The correspondence in the case filed however shows that in the first notice the landlord

stated that after the purchase of the property he had been verbally requesting the tenant to vacate the premises but as he had failed to do so, he

was obliged to give him a notice. In the reply to this notice there is no denial of this fact. The mere fact that the landlord did not insist that the

vendor should give him vacant possession cannot prejudice him at the trial, as he could well have invoked the provision of the Rent Act to make

out; a case of bona fide & reasonable requirement for himself & obtain ejectment of the tenant,

On the second aspect of the case the learned Dist. J. has discussed the difference between a ""desire"" & a ""requirement"" which expressions have

been considered in a recent ruling of the Calcutta H.C. in the case of Basant Lal Saha Vs. P.C. Chakarvarty, . The Dist. J. says that the pltf.

landlord is carrying on his business very satisfactorily & profitably in his present premises implying that there is no real need for him to shift to the

premises in suit. On the third aspect of the cage the learned Dist. J. has compared the utility of the premises in suit with the premises at present in

the occupation of the pltf. & he has come to the conclusion that the pltf. would be assailed by the same difficulty under the Factories Act, under

which he is labouring as regards the present promises. The Dist. J. has given undue consideration & importance to the first & third aspect of the

issue involved in the case. They were relevant in a very minor degree. If I were sitting as a Ct. of First Appeal, I would probably have decided the

case in favour of the landlord considering the evidence in the case & the decision of the trial Ct. The landlord has evidently purchased this property

for a large amount. His desire to shift to his own premises, to be free to make such additions & alterations as he may deem necessary & at the

same time to be free from the precarious position as a tenant with regard to the premises occupied by him is natural & understandable. And, the

finding as to comparative hardship u/s 13(2) of the Act is in his favour as the burden of proving greater hardship is on the tenant. But can it be said

that the decision of the Dist J. is patently illegal or is so manifestly wrong as to lead to the inference of a total denial of justice or infliction of an

irreparable injury. The Rent Act constitutes him as the final authority of appeal. He has no doubt raised appropriate issues in the case & applied his

mind to their determination. It is only in the appreciation of evidence that he is alleged to have committed an error. The Rent Act has been enacted

principally to protect tenants as in spite of the fact that the landlord may reasonably &, bona fide require the premises for his use & occupation, it is

still open to the Ct. to refuse an eviction if it holds that the balance of hardship is in favour of the tenant. The Act provides a summary remedy &

makes the decision of the Dist. J. final. Giving my anxious consideration, I am of opinion that this is not a fit case where the H.C. should upset the

decision of the Dist J. in the exercise of its powers of superintendence the decision rests upon appreciation of facts only. It cannot be said to be an

entire negation of justice or leading to the infliction of an irreparable injury.

Under the circumstances, - I dismiss this revn. appln.; but in the special circumstances of the case I make no order as to costs.