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PETITIONER: MRS. RENA DREGO

       Vs.

RESPONDENT: LALCHAND SONI, ETC.

DATE OF JUDGMENT:       06/03/1998

BENCH: S. SAGHIR AHMAD, K.T.THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Thomas,J.      Leave granted.      A landlady  had rented  out her  flat situate at Bandra (West) in Bombay (now Mumbai) to a tenant in 1969 for a rent of Rs.  200/- per  month. As  years passed  by, she found it difficult to  accommodate her  large  family  in  the  small residential apartment where she is presently living. So, she moved the  Court in  1977 for  a decree  of eviction  of her tenant from  her flat at Bandra. Of course, she cast the net very wide covering a variety of grounds to have a decree for eviction, but  what ultimately  survived among  them was the ground envisaged  in Section  13 (1)(g) of the Bombay Rents, Hotel and  Lodging House  Rates Control Act, 1947 (for short ’the Act’),  i.e., bona  fide and  reasonable requirement of the tenanted  premises for  her own  occupation. though, she was not suited by the trial court (which is the Small Causes Court, Bombay),  she went  in appeal to the appealable bench of the  Court of  Small causes,  where she  got a decree for eviction on  the ground mentioned above. But the said decree did not  enure to her benefit as the same was later upset by the High court of Bombay when the tenant filed writ petition under Article  227 of  the Constitution for quashment of the same. This  appeal, by  special leave, has been filed by the landlady impugning the aforesaid judgment of the Bombay High Court.      It is to be pointed out, right now itself, that need of the landlady  for additional  accommodation in view of large family was recognised by the trial court. Still she was non- suited by  the trial court on the premise that her pleadings on that  score were  scanty. Appeal  Court after  concurring with the  finding which  was favourable  to the landlady did not take  the inadequacy  in the  pleadings  as  capable  of fatally affecting her cause. Hence the appeal court found no hurdle in  granting the  decree of  eviction. But  a learned single judge  of the  High court who quashed the Said decree held the  landlady guilty  of two  wrongs. First is that she did not  speak the truth in her evidence that her eldest son (whose name  is Giles  Drego) has  his own  flat where he is living with  his family  (The landlady  has admitted  in her

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reply affidavit filed in the High Court, during the pendency of the  Writ petition, that her son Giles Drego and his wife are joint  owners of  a  flat  situate  at  Vasai  in  Thane district). Second  is that, she failed to specify the plinth area of  the apartment in which she is presently living with her family.      According to  us, the  high  Court  has  traversed  far beyond the  limit  of  its  supervisory  jurisdiction  under Article 227  of the  Constitution when  the  learned  Single Judge reversed  the Decree  of eviction  which was  based on findings of  facts arrived  at by the fact-finding authority upon the evidence on record. it would have been well for the High court  to remind  itself that  it  was  not  exercising certiorari   jurisdiction   under   Article   226   of   the Constitution but  a supervisory  jurisdiction under  Article 226 of the Constitution but a supervisory jurisdiction under Article 227  which obliges  the High Court to confine to the Scrutiny of  records and  proceedings of the lower tribunal. By relying  on fresh  materials which  were not  before  the tribunal, the  High Court should not have disturbed findings of facts in exercise of such supervisory jurisdiction. it is now well high settled that power under Article 227 is one of judicial superintendence  which  cannot  be  used  to  upset conclusions of facts, however erroneous those may be, unless such conclusions  are so perverse or so unreasonable that no court could  ever have  reached   them Way  back in  1954, a Constitution Bench of this Court, in Waryam Singh & anr. Vs. Amarnath &  anr. ( AIR 1954 SC 215) has pointed out that the power of  superintendence conferred by Article 227 should 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." (emphasis supplied) The said  decision was made in an appeal which considered an order passed  by a Rent control court. Quoting the aforesaid dictum a  three Judge  Bench of  this Court has in Babhutmal Raichand Oswal  Vs. Laxmibai  R. Tarte  & Anr.  (AIR 1975 SC 1297) observed thus:      " The  power of  superintendence of      High Court  under Article 227 being      extraordinary is  to  be  exercised      most   sparingly    and   only   in      appropriate cases. The power, as in      the     case      of     certiorari      jurisdiction, 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    Art.   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.  The High  Court  cannot,      while exercising jurisdiction under      Art. 227,  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

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    errors of  fact  by  examining  the      evidence and appreciating it."      The aforesaid position has been reiterated by the Court on subsequent occasions also (vide M/s. India Pipe Fitting Co. vs. Fakruddin M.A. Baker & anr, AIR 1978 SC 45; Sukhbir Narain vs. Deputy director of Consolidation, AIR 1987 SC 1645).      For appreciating  the arguments  or both sides, we have to take  a look  at the  provision under  which the landlady claimed eviction.  The material  portion of Section 13(1)(g) of the Act is the following:      "13.  When   landlord  may  recover      possession:-      (1)    Notwithstanding     anything      contained in  this Act (but subject      to the provisions of section 15 and      15A, a  landlord shall  be entitled      to  recover   possession   of   any      premises   if    the    Court    is      satisfied.-                x        x         x           (g)  that   the  premises  are           reasonably   and   bona   fide           required by  the landlord  for           occupation by  himself  or  by           any person  for whose  benefit           the premises are held or where           the landlord is a trustee of a           public charitable  trust  that           the premises  are required for           occupation for the purposes of           the trust; or               x        x         x      Sections 15  and 15A  have no  bearing on  the facts of this case  and hence  it is  not necessary  to extract  them here. However,  sub-section 2  of Section  13 also has to be quoted which reads thus:      (2) No decree for eviction shall be      passed on  the ground  specified in      clause (g)  of sub-section  (1)  if      the Court is satisfied that, having      regard to  all the circumstances of      the  case  including  the  question      whether      other       reasonable      accommodation is  available for the      landlord  or  the  tenant,  greater      hardship would be caused by passing      the decree than by refusing to pass      it.      Where the  Court is  satisfied that      no hardship  would be caused either      to the tenant or to the landlord by      passing the  decree in respect of a      part of  the  premises,  the  Court      shall pass the decree in respect of      such part only".      The important postulates for constituting the aforesaid ground are:  (1) the  requirement of  the landlord  for  his occupation of  the tenanted  premises should be reasonable ; (2) it  should also  be bona  fide; (3)  the hardship of the tenant in  case of  eviction should  not be  more  than  the hardship of  the landlord  if he  fails to  get the eviction order. Whether the requirement is reasonable or not can only be judged  from the facts since no strait-jacket formula can be evolved for it.

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    it is difficult to give an exact definition of the word ’reasonable’. It  is often  said that  "an attempt to give a specific meaning to the word ‘reasonable’ is trying to count what is  not number  and measure  what is  not  space."  The author of ’Words and Phrases’ [Permanent Edition] has quoted from In  re Nice  & Schreiber,  123 F.  987,988  to  give  a plausible meaning for the said word. He says "the expression ’reasonable ’  is a  relative term,  and the  facts  of  the particular  controversy   must  be   considered  before  the question  as   to  what   constitutes  reasonable   can   be determined." it  is not  meant to be expedient or convenient but certainly  something more  that . While interpreting the word ’reasonable’  in Section 13 of the Act, the Bombay High Court  has   suggested  in   Krishchand  Moorjimal  vs.  Bai Kalavati, AIR  1973 Bombay  46, "that  the word ’reasonable’ cannot mean  convenient or  luxurious,  though  it  may  not necessarily exclude  the idea  of convenience  and comfort." However, the expression reasonable can be taken as providing an angle  which is  conformable  or  agreeable  to  reasons, having regard to the facts of the particular controversy.      In Municipal  Corporation of Delhi vs. Jagan Nath Ashok Kumar, 1987  (4) SCC  497, this  Court has  stated that "the word  ’reasonable’   has  in  law  prima  facie  meaning  of reasonable in  regard to  those circumstances  of which  the actor, called  upon to  act reasonable,  knows or  ought  to know." This  has been  reiterated by Sabyasachi Mukherjee J. (as his  Lordship  then  was)  in  Gujarat  Water  Supply  & Sewerage Board  vs. Unique  Erectors (Gujarat)  p. Ltd, 1989 (1) SCC 532.      For the  present purpose,  the broad  features of  this case, which  are undisputed, can be looked at. They are: (1) Appellant is  now living in a small apartment which has only one bedroom,  one living  room, a  kitchen and a toilet; (2) appellant is  living with  her husband and her grown up sons (Cedric Drego,  his wife  and a  child, and the youngest son Nereus Drego);  (3) the eldest son Giles Drego is staying in another flat  with his  wife and children; (4) the tenant is in occupation  of yet  another  flat  situate  in  the  same locality which,  on his  own admission,  is "  kitchen  plus three -room flat."      In the  light of  the above  admitted factual  position when the landlady says that the she needs more accommodation for  her   family,  there  is  no  scope  for  doubting  the reasonableness  of   the  requirement.   Further  the  above circumstances would raise a presumption that the requirement is bona  fide also.  The tenant  has failed to show that the demand for  eviction was made with any oblique motive and in the absence  of any  such evidence  the presumption  of bona fides stands unrebutted.      There  cannot  be  any  possible  contention  that  the hardships, if  any, which  may enure  to the  tenant in  the event of eviction from this tenanted premises, would be more than the  hardship which  appellant is  now  facing  due  to shortage of  the space  in her  possession, particularly  in view of  the large  number of  members of  the family living there.      It is  unfortunate that  the High Court has given undue prominence to  a seeming  discrepancy in the evidence of the landlady regarding  the flat  of her eldest son Giles Drego. In her  evidence she  declined to agree to the suggestion of the cross-examination  that Giles  Drego owns  another flat, but in  her affidavit, filed in the High Court, she admitted that the  said son  owns a flat jointly with his wife. It is not clear  from the averments in the affidavit whether Giles drego came  into possession  of the  said  flat  during  the

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interval between  the evidence taking stage and launching of the writ  petition.  Even  otherwise  there  is  nothing  to indicate in  the judgment of the appellate authority that it was persuaded  by the  aforesaid answer  of the  landlady in cross-examination. That  authority was  concerned about  the plight of  the third son Cedric drego who was working in Taj Hotel. This  can be  discerned from  the  following  reasons advanced by the appellate authority:      "  It  is  absolutely  and  clearly      established that  as  of  now,  the      family of  the landlady,  including      her son  in Taj Hotel and daughter-      in-law have no place for residence.      That they  would become entitled to      it in  future or  even further that      they could have got it and have not      attempted to  get it  would not  by      itself  vitiate  the  case  of  the      requirement set up by the landlady.      Here, quite  plainly  speaking  the      case of  the requirement  set up by      the landlady.  Her,  quite  plainly      speaking the  case  appears  to  be      that the  landlady is  put up  in a      flat belonging  to her  husband and      that  flat   falls  short   of  the      requirement and therefore, there is      a     need      for      additional      accommodation. We  do not  find any      thing unreasonable  or male fide in      t he case tried to be set up by the      landlady."      The other  ground highlighted  by  the  learned  single judge for  upsetting the  decree of  eviction  is  that  the landlady did  not specify the plinth area of the space which is presently  in  her  of  occupation.  There  is  no  legal requirement that  the person  who  claims  eviction  on  the ground under  Section 13(1) (g) of the Act shall specify the area in  his possession.  However, if the High Court thought it necessary to know the exact plinth area in the possession of the appellant, she could have been asked to spell it out. It was not done, and instead learned Single Judge has blamed her in the following terms:      " Even  at this  stage, no  attempt      has  been   made  by   filling   an      affidavit to  show what is the area      of the  flat presently  occupied by      the landlady."      As a  matter of  fact, the  landlady had  mentioned it, which the  High Court has overlooked. In the affidavit sworn to by  the landlady  in the  writ petition filed in the High Court the following averment has been made:       "  I say  that I  am  holding  and      occupying a  flat  admeasuring  560      sq. ft.  which consists  of one bed      room, one  living room, one kitchen      and a bathroom along with W.C."      We  find  no  justification  for  the  High  Court  for quashing the  decree of eviction passed by a competent court on satisfaction  of the ground under Section 13(1)(g) of the Act. We,  therefore, allow  these appeals  and set aside the impugned judgment  of the high Court. The decree of eviction will stand  restored subject  to   a rider  that respondent- tenant  can   have  three   months’  time   from  today  for surrendering the premises in question, provided he gives the

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undertaking on usual terms within four weeks in the Registry of this Court.