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PETITIONER: GANPAT LADHA

       Vs.

RESPONDENT: SASHIKANT VISHNU SHINDE

DATE OF JUDGMENT21/02/1978

BENCH: BEG, M. HAMEEDULLAH (CJ) BENCH: BEG, M. HAMEEDULLAH (CJ) BHAGWATI, P.N. SINGH, JASWANT

CITATION:  1978 AIR  955            1978 SCR  (3) 198  1978 SCC  (2) 573  CITATOR INFO :  R          1980 SC 954  (9,10,11,14)  R          1980 SC1605  (12)  O          1985 SC 796  (1,3,20,33,35)  O          1987 SC 117  (51)  R          1987 SC1939  (27)

ACT: Constitution of India--Articles 226-227--Power of High Court to   interfere  with  exercise  of  discretion   by   Courts below--Bombay   Rent   Act  1947--Sec.  5(11)c,   12(3)a   & 12(3)b--Whether definition of tenant includes a member of  a family of a deceased tenant residing with him at the time of his  death  in  case of business  premises--Object  of  rent restriction  act--If conditions of 12(3)b are complied  with whether  Court  can  exercise  discretion  in  favour  of  a tenant--Whether  conditions laid down by Sec. 12(3)b are  to be strictly complied with by tenant.

HEADNOTE:  The  respondent  tenant  made an application  in  1956  for fixation  of  standard rent under section 11 of  the  Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.   In February,  1960,  in the said proceedings,  the  contractual rent  of  Rs. 80/- per month was reduced to  Rs.  54.25  per month in respect of the shop in dispute.  The rent  remained in  arrears from 1956 to 1960.  In June and July, 1960,  the appellant  landlord  issued  a notice to quit  to  the  res- pondent.   Nearly  5 months after the fixation  of  standard rent  the  respondent  filed a  Revision  Application  under section 115 of the Civil Procedure Code which was  summarily dismissed  by  the  High  Court.   In  November,  1960,  the appellant  filed present suit for eviction.   On  30-8-1962, issues were framed and therefore that was the first date  of hearing.  In June, 1963 the Trial Court held that since  the dispute  about the standard rent was pending when  the  suit was  filed  the  provisions of  section  12(3)(a)  were  not attracted.  However, the appellant was entitled to a decree, under  section 12(3) (b) since the respondent had  not  paid the  rent  regularly in accordance with  the  provisions  of section  12(3)(b).  The Appellate Court held that  the  case was  governed  by  section  12(3)(a)  and,  therefore,   the

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appellant  was  entitled  to  a  decree  of  eviction.   The Appellate  Court  further  held that even if  the  case  was governed  by section 12(3)(b), since the respondent had  not complied  with  its  provisions the suit  was  bound  to  be decreed in accordance with the decision of this Court in the case  of  Shah Dhansukhlal.  The Appellate Court  also  held that  even if any discretion was vested in. the Court  under section  12(3)(b)  of  the  Act  that  discretion  had  been properly exercised by the Trial Court. The  respondent filed a Writ Petition under Article  227  of the  Constitution  against  the judgment  of  the  Appellate Court.   The Writ Petition succeeded before the  High  Court because  the High Court thought that the view  expressed  by this  Court in Shah Dhansukhlal’s case still left  room  for the  application  of what was laid down by Chagla C.  J.  in Kalidas  Bhavan’s case.  The original tenant of the shop  in question  having died during the course of  litigation,  the present  respondent, who is the son of the  original  tenant was impleaded in the petition.  Section 5(11)(c) of the  Act defines  a  tenant as including any member of  the  tenant’s family residing with him at the time of his death.  The High Court  took the view that section 5(11)(c) applies not  only to  residential premises but also to business  premises  and that,  therefore,  on  the death of  a  tenant  of  business premises any member of the tenant’s family residing with him at the time of his death would become a tenant. Al lowing the appeal, HELD  : (1) It is difficult to see how in case  of  business premises  the need for showing residence with  the  original tenant  at the time of his death would be relevant.   It  is obvious  from  the  language of section  5(11)(c)  that  the intention  of  the  Legislature in giving  protection  to  a member of the family of the tenant residing with him at  the time of his death was to secure that on 199 the  death of the tenant the member of his  family  residing with  him at the time of his death is not thrown out.   This protection  would be necessary only in case  of  residential premises.   When a tenant is in occupation of business  pre- mises  there  would  be no question  of  protecting  against dispossession  a  member of his family.  The tenant  may  be carrying  on  a business in which the member of  his  family residing  with him may not have any interest at all and  yet on  the construction adopted by the High Court, such  member of  the  family  would become a tenant  in  respect  of  the business  premises.   Such  a result  could  not  have  been intended to be brought about by the legislature.  The  basic postulate  of the protection under the Rent Act is that  the person  who is sought to be protected must be in  possession of  the  premises  and his possession is  protected  by  the legislation.   But in case of business premises a member  of the  family of the tenant residing with him at the  time  of his  death  may  not be in the possession  of  the  business premises  and yet, on the view taken by the High  Court,  he would become tenant in respect of the business premises with which he has no connection. [203A-C, F-G] Parubai  Manilal  Brahmin  &  Ors.  v.  Baldevdas  Zaverbhai Tapodhan, [1964] 5 Gujarat L.R. 563 approved. Heirs  of Deceased Darji Mohanlal Lavji v. Muktabai  Shamji, [1971] 12 Gujarat L.R. 272, over-ruled. (2)  The  Act  interferes  with  the  landlord’s  right   to property  and  freedom  of contract  only  for  the  limited purpose  of  protecting  tenants  against  exercise  of  the landlord’s power to evict them in these days of scarcity  of accommodation  by asserting superior rights in  property  or

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trying to exploit his position by extracting too high  rents from  helpless tenants.  The object was not to  deprive  the landlord  altogether  of his rights in property  which  have also  to be respected.  Another object was to make  possible eviction  of tenants who fail to carry out their  obligation to  pay rent to the landlord despite opportunities given  by law  in  that  behalf.   Thus,  section  12(3)(a)  makes  it obligatory  for  the  court  to  pass  a  decree  when   its conditions are satisfied. [205B-C] Hatilal  Balabhai Nazar v. Ranchodbhai Shankrbhai Patel  and Ors., A.I.R. 1968 Gujarat p. 172. approved. If there is statutory default or neglect on the part of  the tenant  whatever  may be its cause the landlord  acquires  a right  under section 12(3)(a) to get a decree  for  eviction but  where  the  conditions  of  section  12(3)(a)  are  not satisfied there is a further opportunity given to the tenant to protect himself against eviction.  He can comply with the conditions  set  out  in section  12(3)(b)  and  defeat  the landlord’s  claim  for eviction.  If, however, he  does  not fulfil  those  conditions  he  cannot  claim  protection  of section  12(3)(b)  and in that event there  being  no  other protection available to him a decree for eviction would have to go against him.  It is difficult to see how by any  judi- cial  velour discretion exercisable in favour of the  tenant can  be found in section 12(3)(b) even where the  conditions laid down by, it are not satisfied. [205-C-E] Kalidas v. Bhavan Bhagwandas, 60 Bombay L.R. 1359 overruled. Section   12(3)(b)   does  not  create   any   discretionary jurisdiction  in the Court.  It provides protection  to  the tenant on certain conditions and these conditions have to be strictly  observed  by the tenant who seeks the  benefit  of this  section.   If the statutory provisions do not  go  far enough to relieve the hardship of the tenant the remedy lies with the legislature.  It is not in the hands of the  Court. 1205-F-G] (3)  The  High Court committed a gross error in  interfering with  what was a just and proper exercise of  discretion  by the  Court of small Causes, in exercise of its  power  under Article  227  of the Constitution.  The High  Court  without even considering or setting aside the findings of the  Court in regard to the circumstances calling for the exercise of a discretion   in   favour  of  the  appellant   allowed   the application under Article 227.  This was quite  unwarranted. [205GH. 206A] 200 Babhutmal Raichand Oswal v. Laxmibai R. Tarte & Anr., A.I.R. 1975 S.C. 1297, relied on. A finding as to whether circumstances justified the exercise of  discretion or not, unless clearly perverse and  patently unreasonable,  is, after all, a finding of fact only and  it cannot be interfered with either under Article 226 or 227 of the Constitution [206 C-D]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1717  of 1975. (Appeal  by Special Leave from the Judgment and Order  dated 29-8-1975  of  the Bombay High Court in S.C.A.  No.  334  of 1970). F.   S. Nariman, P. H. Parekh and Miss Manju Jetley for  the Appellant. U.   R. Lalit and V. N. Ganpule for the Respondent. P.   H. Parekh, for the Intervener.

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The Judgment of the Court was delivered by BEG,  C.J.  If  the  quest for certainty  in  law  is  often baffled,  as it is according to Judge Jerome Frank  in  "Law and the Modern Mind", the reasons are mainly two :  firstly, the lack of precise formulation of even statutory law so  as to  leave lacunas and loopholes in it giving scope  to  much avoidable  disputation; and, secondly, the  unpredictability of the judicial rendering of the law after every conceivable as well as inconceivable aspect of it has been explored  and subjected to forensic debate.  Even the staunchest exponents of  legal  realism,  who  are apt to  treat  the  quest  for certainty  in  the administration of justice  in  accordance with  law, in an uncertain world of imperfect human  beings, to be practically always futile and doomed to failure,  will not  deny  the. desirability and the beneficial  effects  of such  certainty in law as may be  possible.   Unfortunately, there  are not infrequent instances where what  should  have been clear and certain, by applying well established  canons of statutory construction becomes befogged by the  vagaries, if one may use a possibly strong word without disrespect, of judicial  exposition divorced from these canons.   The  case before  us  is  an instance of  the  artificial  uncertainty created by such a fog after the law found in Section 12  (3) of  the Bombay Rents, Hotel and Lodging House Rates  Control Act No. LVII of 1947 (hereinafter referred to as ’the  Act’) had been laid down with sufficient clarity by this Court  in Shah  Dhansukhlal Chhaganlal v. Dalichand Firchand Shroff  & Ors.(1)  and correctly understood and applied by a Bench  of the Court of Small Causes at Bombay.  It is a cardinal tenet of  sound  administration  of  justice  that  the   judicial function must not stray, so far as possible, into the domain of  legislation  wearing a veil, whether thin or  thick,  of "interpretation".   We  are impelled to make  these  remarks because we find that a case of the commonest type between  a landlord and tenant, in the city of Bombay, the decision  of which   the  Act  before  us  was  presumably  designed   to facilitate  and expedite, consistently with justice  to  the landlord  as well as the tenant, has dragged on  for  years, owing  to the kind of difficulties we have referred  to,  so that justice delayed has veritably become justice denied. (1) [1968] 3 S.C.R. 347. 201 The  history  of the litigation before us goes back  to  3rd September,  1956,  when the predecessor-in-interest  of  the defendant-respondent  filed an application for  fixation  of standard  rent  under  Section  1 1 of  the  Act.   On  17th February, 1960 as a consequence, the contractual rent of Rs. 80/-  per month was reduced and the standard rent was  fixed at  Rs.  54.25 per month of a shop in  Santa  Cruz,  Bombay. Nevertheless,  the  tenant, predecessor-in-interest  of  the respondent,  did  not pay rent.  The  payments  remained  in arrears  from  1956 to 1960.  Therefore,  the  landlord  was compelled  to send a registered notice to quit with a  claim for  arrears of rent for four years @ Rs. 54.25  per  month. On  30th  June, 1960, he repeated this notice to quit  by  a letter  sent  under certificate of posting.   On  1st  July, 1960,  the  registered  ’ notice came  back  with  the  word "refused"  endorsed on it.  On 15th July, 1960, a notice  to quit was tendered personally to the respondent but  refused. The  notice  was  then  said to have  been  affixed  to  the premises.   On  18th July, 1960, nearly  five  months  after fixation  of  standard  rent, the tenant  filed  a  Revision application under Section 115 of the Code of Civil Procedure which was dismissed summarily on 1st September, 1960, by the High Court.

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On  6th November, 1960 the appellant-landlord filed  a  suit for eviction which is now before us.  On 30th August,  1962, the first date of hearing, the issues were framed.  On  18th June,  1963,  the  Trial  Court  decreed  the  suit  on  the following findings : the notice, to quit was valid and  duly served;  the  arrears of rent were properly  demanded  under section 12 (2) of the Act; the demand was not complied  with in  accordance with law by the tenant within a month of  the demand;  the case was governed by the provisions of  section 12(3)  (b)  and not by the provisions of section  12(3)  (a) because a dispute about the fixation of   standard rent  was still  pending when the notice demanding standard  rent  was given;  nevertheless,  the tenant was not  entitled  to  the protection  of section 12(3) (b), since he had not paid  the rent regularly in accordance with the conditions under which the protection of section 12 (3) (b) could be given to him. On  12th  August, 1963, the tenant filed an  appeal  in  the Small  Causes  Court challenging the validity of the  notice on the ground that the "notice to quit must be for 30 days’. On  19th  April, 1968, this appeal was  allowed.   On,  11th April,  1969,  the High Court set aside the finding  of  the Appellate  Court on the notice to quit which was held to  be valid  and  properly served and sent back the  case  to  the appellate  court  for decision of other questions.   On  8th December, 1969, the special leave petition against the order of  remand  was dismissed by this Court.  On  22nd  January, 1970, the Appellate Bench of the Small Causes Court passed a decree  for ejectment holding that a valid notice  had  been served;  the case was governed by the provisions of  section 12  (3) (a) and not section 12(3) (b); even if the case  was governed  by section 12 (3) (b), its provisions  not  having been  complied  with, the suit was bound to  be  decreed  in accordance with what was clearly held by this Court in  Shah Dhansukhlars case (supra), where it was laid down               "To be within the protection of that provision               (section   12  (3)  (b)  )  the  tenant   must               thereafter continue to pay or               14-211SCI/78               202                tender  in  Court  regularly  the  rent   and               permitted  increases till the suit is  finally               decided". it also held that even if any discretion was vested in  the, Court  under section 12(3) (b) of the Act,  that  discretion had been properly exercised by the Trial Court.  Against the last mentioned judgment the tenant filed on 8th February,  1970  an  application under article  227  of  the Constitution which, rather unexpectedly, succeeded before  a Division Bench of the Bombay  High Court because the learned Judges thought that the view expressed by this Court in Shah Dhansukhlal’s   case  (supra),  still  left  room  for   the application of what was laid down by Chagla C.J., in Kalidas Bhavan  Bhagwandas(1). The learned Judges of the High  Court did not, we    find,  address  themselves  to  the  argument that, even if, on the view taken by Chagla, C.J., in Kalidas Bhavan’s case (supra), a discretion was left to the Court to deviate,  in special circumstances, from the  obligation  to pass a decree, it was not proper for the High Court, in  the exercise  of  its  jurisdiction under  Article  227  of  the Constitution, to interfere with what the appellate Court had found to be a just and proper exercise  of   discretion   to pass  the degree. As the High Court allowed the  application under  article  227  on  29th  August,  1975  without   even considering  or setting aside the appellate Court’s  finding on  the correct exercise of discretion by the  Trial  Court,

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the landlord brought the case before us by grant of  special leave to appeal. Before  deciding the main question we may refer to,  another question  which would also be sufficient for the decision of this appeal. That   arises  out of an event which is  to  be expected when the course of litigation is so long drawn  out as the one before us. Smt. Shantibai Vishnumal, the original tenant of the shop in  question died on 9th December,  1973, during  the  course of litigation, and the  respondent,  her son,  was impleaded as the claimant to her  alleged  tenancy rights under Section 5 (1 1) (c) of the Act which lays down       "5  (1 1) : ’tenant means any person  by               whom  or on whose account rent is payable  for               any premises and includes-  (a)  x    x    x    x  (b)  x    x    x    x                     (e)  any member of the  tenant’s  family               residing with him at the time of his death  as               may be decided in default of agreement by  the               Court. In  these  circumstances, the question  arose  for  decision whether the present respondent, whose residence is given  in the  special  leave petition as  "Agakhan  Building,  Haines Road,  Bombay",  could  possibly claim to  be  a  tenant  in respect  of the shop which admittedly  constitutes  business premises  by reason of Section 5 (11) (c) of the  Act.   The High Court took the view that section 5 (11) (c) applies not only to resi- (1)  60 Bombay L.R. 1359. 203 dential   premises  but  also  to  business   premises   and therefore,  on the death of a tenant of  business  premises, any member of tenant’s family residing with him at the  time of  his death would become a tenant.  We do not  think  this view taken by the high Court is correct.  It is difficult to see  how in case of business premises, the need for  showing residence with the original tenant at the time of his  death would  be  relevant.   It is obvious from  the  language  of section  5(11)(c) that the intention of the  legislature  in giving  protection to a member of the family of  the  tenant residing  with  him at the time of his death was  to  secure that  on the death of the tenant, the member of  his  family residing with him at the time of his death is not thrown out and  this  protection would be necessarily only in  case  of residential  premises.   When a tenant is in  occupation  of business premises, there would be no question of  protecting against  dispossession  a  member  of  the  tenant’s  family residing  with him at the time of death.  The tenant may  be carrying  on  a business in which the member of  his  family residing  with him may not have any interest at all and  yet on  the construction adopted by the High Court, such  member of  the  family  would become a tenant  in  respect  of  the business  premises.   Such  a result  could  not  have  been intended  to  be brought about by the  legislature.   It  is difficult to discern any public policy which might ’seem  to require it.  The principle behind section 5 (1 1) (c)  seems to  be that when a tenant is in occupation of premises,  the tenancy  is taken by him not only for his own  benefit,  but also  for the benefit of the members of the family  residing with  him and, therefore, when the tenant  dies,  protection should  be  extended to the members of the family  who  were participants  in  the benefit of the tenancy and  for  whose needs  inter  alia the tenancy was originally taken  by  the tenant.  This principle underlying the enactment of  Section 5  (II) (c) also goes to indicate that it is in  respect  of

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residential premises that the protection of that section  is intended  to be given.  We can appreciate a provision  being made in respect of business premises that on the death of  a tenant  in  respect  of such premises,  any  member  of  the tenant’s family carrying on business with the tenant in such premises  at the time of Ms death shall be a tenant and  the protection  of the Rent Act shall be available to him.   But we fail to see the purpose the legislature could have had in view in according protection in respect of business premises to a, member of the tenant’s family residing with him at the time  of his death.  The basic ’postulate of the  protection under  the Rent Act is that the person who is sought  to  be protected  must  be in possession of the  premises  and  his possession is protected by the legislation.  But in case  of business  premises,  a member of the family  of  the  tenant residing  with  him at the time of his death may not  be  in possession of the business.premises; he may be in service or be  may be carrying on any other business.  And yet  on  the view  taken  by the-High Court, he would  become  tenant  in respect  of  the  business premises with  which  he  has  no connection.   We are, therefore, in agreement with the  view taken  by one of us (Bhagwati J.) in the Gujarat High  Court about  the correct meaning of Section 5 (11) (c) in  Parubai Manilal  Brahmin & Ors. v. Baldevdas Zaverbhai  Tapodhan(1), in preference to the view adopted in the sub- (1)  (1964) 5 Gujarat L.R. 563. 204 sequent  decision  of  the Gujarat High Court  in  Heirs  of deceased  Darji Mohanlal Lavji v. Muktabai  Shamji(1)  which decision  was  followed  by the Bombay  High  Court  in  the judgment impugned in the present appeals before us. It is significant to note that after the decision of Gujarat High  Court in Parubai Manilal Brahmin & Ors.  v.  Baldevdas Zaverbhai  Tapodhan (supra) the Gujarat legislature  amended the  Rent  Act by substituting the following  provision  for section 5 (1 1) (c)               "5  (11) (c) (i) in relation to  premises  let               for  residence,  any member  of  the  tenant’s               family  residing with the tenant’ at the  time               of.   or  within  three   months   immediately               preceding,  the death of the tenant as may  be               decided in default of agreement by the  Court,               and               (ii)  in   relation   to  premises   let   for               business, trade or storage, any member of  the               tenant’s family carrying on business, trade or               storage  with the tenant in the said  premises               at the time of the death of the tenant as, may               continue,  after  his death, to carry  on  the               business,  trade or storage, as the  case  may               be, in the said premises and as may be decided               in de-fault or agreement by the Court." This amendment was of course necessitated by the decision in Parubai  Manilal  Brahmin  &  Ors.  v.  Baldevdas  Zaverbhai Tapodhan  (supra) and it cannot, therefore, be  relied  upon for  the  purpose  of  supporting the  view  taken  in  that decision.   But  what is of significance is  that  when  the legislature  enacted  a  provision  in  regard  to  business premises  in  clause  (ii)  of  Section  5  (11)  (c),   the legislature made it clear that the protection in respect  of business  premises  was  intended to be given,  not  to  any member of the tenant’s family residing with him at the  time of  his  death,  but  to a member  of  the  tenant’s  family carrying  business with him in such premises at the time  of his death.  The legislative intent, therefore, never was  to

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confer  protection  in  respect of business  premises  on  a member of the tenant’s family residing with him at the  time of  his death.  This is also a circumstance  which  supports the  view  taken by the Gujarat High Court  in  the  earlier decision  in  Parubai Manilal Brahmin &  Ors.  v.  Baldevdas Zaverbhai  Tapodhan  and shows that the view  taken  in  the subsequent  decision  in Heirs of  deceased  Darji  Mohanlal Lavji  v.  Muktabai Shamji is not correct.  Of  course,  the amendment  made in Rent Act in the State of  Gujarat  cannot assist us in interpreting Section 5 (11) (c) of the Rent Act in the Act of Maharashtra, but it is not wholly  irrelevant, since the judgment of the Bombay High Court in appeal before us relies heavily on the decision of the Gujarat High  Court ’in  Heirs  of  deceased Darji Mohanlal  Lavji  v.  Muktabal Shamji  (supra)  and  if that  decision  is  incorrect,  the judgment  in appeal before us must also likewise be held  to suffer  from same infirmity.  We must, therefore, hold  that Section  5 (11) (c) applies only in respect  of  residential premises and since the premise%, in question before us  were admittedly business premises in the respondent, who was  son of the original tenant, could not claim to be a tenant under section 5 (11) (c). (1)  (1971) 12 Gujarat L.R. 272.             2 05 Coming  now  to  the first question  to  which  we  referred earlier,  we  think that the problem of  interpretation  and application of section 12 (3 ) (b) need not trouble us after the decision of this Court in Shah Dhansukhlal  Chagganlal’s case  (supra)  followed  by  the  more  recent  decision  in Harbanslal Jagmohandas & Anr. v. Prabhudas Shiv lal(1) which completely covers the case before us. It  is  clear  to  us that  the,  Act  interferes  with  the landlord’s  right to property and freedom of  contract  only for the limited purpose of protecting tenants from misuse of the landlords power to evict them, in these days of scarcity of  accommodation,  by  asserting  his  superior  rights  in property  or  trying to exploit his position  by  extracting too,  high rents from helpless tenants.  The object was  not to deprive the landlord altogether of his rights in property which have also to be respected.  Another object was to make possible  eviction  of tenants who fail to carry  out  their obligation to pay rent to the landlord despite opportunities given  by law ’in that behalf.  Thus, section 12 (3) (a)  of the  Act makes it obligatory for the Court to pass a  decree when its conditions are satisfied as was pointed out by  one of us (Bhagwati, J) in Hatilal Balabhai Nazar v. Ranchodbhai Shankarbhai  Patel & Ors.(2). If there is statutory  default or  neglect on the part of the tenant, whatever may  be  its cause,  the landlord acquires a right under section  12  (3) (a) to get a decree. for eviction.  But where the conditions of Section 12 (3) (a) are not satisfied, there is a  further opportunity  given to the tenant to protect himself  against eviction.   He  can comply with the conditions  set  out  in Section  12  (3)  (b) and defeat the  landlord’s  claim  for eviction.  If, however, he does not fulfil those conditions, he can not claim the protection of section 12(3) (b) and  in that  event,  there being no other protection  available  to him, a decree for eviction would have to go against him.  It is  difficult to see how by any judicial  valour  discretion exercisable in favour of the tenant can be found hi  section 12(3) (b) even where the conditions laid down by it are  not satisfied.   We think that Chagla, C.J., was  doing  nothing less  than legislating in Kalidas Bhavan’s case (supra),  in converting the provisions of section 12 (3) (b) into a  sort of  discretionary  jurisdiction  of  the  Court  to  relieve

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tenants from hardship.  The decisions of this Court referred to  above,  in  any case, make  the  position  quite  clear. Section  12  (3)  (b)  does  not  create  any  discretionary jurisdiction  in the Court.  It provides protection  to  the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section.   If the statutory provisions do not go far  enough to  relieve the hardship of the tenant the remedy lies  with the legislature.  ’It is not in the hands of Courts. Lastly we think that the High Court committed a gross  error in  interfering, upon an application under. article  227  of the Constitution with what was a just and proper exercise of its  discretion by the Court of Small Causes in Bombay  even on the erroneous view that the Court had a discretion in the matter.  The High Court, without even considering or setting aside the findings of the Court in regard to the circum- (1)  [1976] 3 S.C.R. 629. (2)  A.I.R. 1968 Gujarat p. 172. 206 stances calling for the, exercise of a discretion in  favour of the appellant.  Allowed the application under article 227 of the Constitution.  This, we think, was quite unwarranted. We  feel certain that the High Court would not  have  fallen into such an error if its attention was drawn to the law  as laid  down  by  this Court in Babhutmal  Raichand  Oswal  v. Laxmibai R. Tarte & Anr.(1). There, this Court, in an appeal by  special leave from a judgment of the Bombay  High  Court observed (at p. 1297) :               "It  is  a  litigation  between  landlord  and               tenant  and  as  is usual with  this  type  of               litigation,  it  has been fought to  a               bitter  end.  Much-of the agony to, which  the               tenant  has been subjected in this  litigation               would have been spared if only the High  Court               had  kept  itself  within the  limits  of  its               supervisory jurisdiction and not ventured into               fields  impermissible to it under article  226               or 227 of the Constitution" A  finding as to whether circumstances justify the  exercise of a discretion or not, unless clearly perverse and patently unreasonable  is, after all, a finding. of fact only,  which could  not  be interfered with either under article  226  or under  article  227  of  the  Constitution.   In   Babhutmal Raichand  Oswal’s case (supra) this Court also said  (at  p. 1302)               "It  would, therefore, be seen that  the  High               Court  cannot, while  exercising  jurisdiction               under  Art.  227, interfere with  findings  of               fact  recorded  by the  subordinate  court  or               tribunal.   Its function is limited to  seeing               that   the  subordinate  court   or   tribunal               functions within the limits of its authority." Even that certainty and predictability in the administration of justice in accordance with law which is possible only  if lawyers  and  Courts  care to  scrupulously  apply  the  law clearly  declared by this Court, would not be attainable  if this elementary duty is overlooked. For the reasons given above, we allow this appeal, set aside the  judgment and decree of the High Court and restore  that passed  by the appellate Bench of the Small Causes Court  on 22nd  January, 1970.  The respondent will pay the  costs  of the appellants. P.H.P.                       Appeal allowed. (1) A.I.R. 1975 S.C. 1297. 2 07

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