http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (civil) 2892  of  2001

PETITIONER: ASHOK KUMAR & OTHERS

       Vs.

RESPONDENT: SITA RAM

DATE OF JUDGMENT:       19/04/2001

BENCH: D.P. Mohapatra & Shivaraj V. Patil

JUDGMENT:

D.P.MOHAPATRA, J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  appellants are the tenants of the shop room No.R 67 (New  No.   R/50)  located in the Mohalla  Rasoolpur,  Nawab Ganj,  District  Barabanki, Uttar Pradesh.  Sita Ram @  Nand Kishore,  the  respondent  is  the   landlord  of  the  said property.   On  the  petition  filed by  the  respondent  on 28.1.1988  for eviction of the appellants and release of the premises  under section 21(1)(a) of the Uttar Pradesh  Urban Buildings  (Regulation  of Letting, Rent and Eviction)  Act, 1972  (Act 13 of 1972) (hereinafter referred to as the Act )  P.A.   No.   2/1988 was registered in the Court  of  IInd Additional  Chief Judicial Magistrate/Prescribed  Authority, Barabanki.   The  case of the respondent shortly stated  was that  he was in bona fide need of the shop room in  question for establishing his son Dilip Kumar in business;  being his father  and  the  Karta  of the family it was  his  duty  to provide necessary facilities to his son to start independent business.   The  appellants  entered  contest,  refuted  the averments/  allegations  made  by   the  respondent  in  the eviction  petition.  They denied that the respondent had any bona  fide need for the shop room in question.  According to them  the respondent had a number of other premises, some of which  he  let  out  to others  shortly  before  filing  the eviction petition in 1987.

   The  prescribed  authority  on sifting the  evidence  on record  accepted  the case of the respondent that he was  in bona fide need of the shop room in question, and allowed the prayer  for release of the premises and ordered eviction  of the  appellants  therefrom.  He also ordered payment  of  an amount  equivalent  to two years rental as compensation  for indemnifying  the appellants for the inconvenience faced  by them in shifting their business.

   Both  the parties preferred appeals against the order of the  prescribed  Authority;  the appellants  challenged  the order  of eviction passed against them, while the respondent

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

assailed  the  order for payment of two years rental to  the appellants.

   The  5th  Additional  District Judge  Barabanki  in  the judgment dated 12.5.1992 in Rent Control Appeal Nos.1/91 and 2/91  allowed  the  appeal No.2/91 filed  by  the  appellant herein  and  disallowed  the  appeal No.1/91  filed  by  the respondent herein.

   Being  aggrieved  by  the   judgment  of  the  Appellate Authority  the respondent landlord filed the petition  under Article  226 of the Constitution being W.P.  No.  92(R/C) of 1992  in the Allahabad High Court (Lucknow Bench).  A single Judge  of the Court by the judgment dated 8.12.1999  allowed the  Writ  Petition, and quashed the judgment/order  of  the Appellate Authority.

       Hence this appeal by the tenants.

   The  main thrust of the arguments of the learned counsel appearing  for the appellants is that it was not open to the High  Court to re-open the findings of fact recorded by  the Appellate  Authority that the landlord has no bona fide need for  the  disputed  shop room, in exercise  of  jurisdiction under  Article  226.  The further submission of the  learned counsel  is  that the Appellate Authority has  given  cogent reasons  for  differing  from the findings recorded  by  the prescribed   Authority   on  the   question  of  bona   fide requirement  of the landlord, and therefore, no interference by  the  High  Court  with the order of  the  Authority  was warranted.

   Per  contra  the  learned   counsel  appearing  for  the respondent  supported the judgment contending that the  High Court, in the facts and circumstances of the case, was right in setting aside the judgment of the Appellate Authority and restoring  the  order of eviction passed by  the  prescribed Authority.

   The  position  is  too  well settled  to  admit  of  any controversy  that the finding of fact recorded by the  final Court  of  fact should not ordinarily be interfered with  by the  High Court in exercise of writ jurisdiction, unless the Court  is satisfied that the finding is vitiated by manifest error of law or is patently perverse.  The High Court should not interfere with a finding of fact simply because it feels persuaded  to  take  a  different view on  the  material  on record.

   In  the  present case on perusal of the judgment of  the Appellate  Authority  which  runs to about sixty  pages  the Authority  has discussed in great detail the case pleaded by both  the  parties, materials placed by them in  support  of their  case  and has disbelieved the case that the  landlord bona  fide  required the shop in question for his son  Dilip Kumar  .  The Appellate Authority observed that Dilip  Kumar was married in 1979;  the marriage was dissolved by a decree of divorce passed in July 1987 before filing of the eviction petition;   therefore,  the  cause pleaded in  the  eviction petition  that Dilip Kumar after his marriage felt the  need to  augment his income and for that purpose wanted to  start his independent business, was not acceptable.  The Appellate Authority  further observed that the respondent landlord had himself let out his building on rent in 1987 which show that Dilip Kumars need was not bona fide one;  the necessity, if

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

any,  had  ceased by the date of the eviction petition  i.e. on  28.1.1988.   In  conclusion,   the  Appellate  Authority recorded  the  finding  that from the evidence  produced  it becomes perfectly evident that the applicant had no need for vacation of the shop room for use of Dilip Kumar and that it was  correctly  stated  by  the  opposite  party  that  this application  was  filed in order to enhance the  rent.   The Appellate Authority further observed:

   As  regards  the relative hardships and the damages  it need  no decision here as the relative hardship is  material only  in  case the necessity of applicant had been  bonafide and  as regards the damages, a decision on this point  would have  required  only  when  the  application  filed  by  the applicant was being granted.  On these points no decision is therefore required.  The decision of the lower court in this regard is set aside.

   The  High  Court  set aside the order of  the  Appellate Authority.  The learned Judge observed:

   Every  father wants to see in his life that his son  is settled  in  life.  This aspect of the matter was not  taken into   consideration  by  the   appellate  authority.    The appellate  authority further failed to compare the  bonafide need of the opposite parties 2 to 5 and the petitioner.  The detailed  judgment  of the Prescribed Authority too has  not been  scrutinised  in accordance with law.  The  only  thing which  prevailed in the mind of the appellate authority  was that since the wife had deserted Dilip Kumar, the son of the petitioner therefore there is no need to release the shop in question  in favour of the petitioner on the ground of  need of  his son to settle in life.  The appellate authority  has also  recorded  a  finding  that there  is  no  question  of comparing  the  hardships  of  the  landlord  with  opposite parties  2  to 5 because he had come to the conclusion  that there was no bonafide need of the landlord.

   Considering  the  question of the power of the Court  to interfere with the order of the Appellate Authority the High Court  appears to have taken the view that if the  Appellate Authority has erred on a question of law then the High Court has  jurisdiction  to  interfere under Article  226  of  the Constitution.    Taking  exception  to   the  Order  of  the Appellate Authority the High Court observed :

   The Prescribed Authority had compared the bonafide need of  the  petitioner as well as the opposite parties 2  to  5 whereas the appellate authority refused to consider the need of  the petitioner-landlord on the ground that there was  no bonafide need.

       xxx     xxx     xxx

   However, it can be said that the order of the Prescribed Authority  has  been  set aside by the  appellate  authority without  comparing  the need and hardships of  the  landlord with  opposite  parties 2 to 5 which was considered  by  the Prescribed  Authority  in details.  The finding recorded  by the  appellate authority that the need of the petitioner was not bonafide is erroneous.

   Section  21  makes provision regarding  proceedings  for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

release of building under occupation of tenant.  Sub-section (1)(a) under which the respondent sought the eviction of the petitioner,  along  with  its   proviso  reads  as  follows: 21.Proceedings  for release of building under occupation of tenant  (1) The prescribed authority may, on an application of  the  landlord  in that behalf, order the eviction  of  a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely

   (a)that the building is bona fide required either in its existing  form  or after demolition and new construction  by the  landlord for occupation by himself or any member of his family,  or any person for whose benefit it is held by  him, either  for  residential  purposes or for  purposes  of  any profession,  trade or calling, or where the landlord is  the trustee  of a public charitable trust, for the objection  of the trust;

   xxx     xxx     xxx     xxx

   Provided also that no application under clause (a) shall be entertained

   xxx         xxx       xxx

   (ii)  in  the  case  of any  residential  building,  for occupation for business purposes

   As  noted  earlier  the  High   Court  has  faulted  the Appellate  Authority  for  not considering the  question  of comparative  hardship.  The Appellate Authority did not feel the necessity to go into that question since it had recorded the  finding  that  grant  of eviction  as  pleaded  by  the landlord  was  not  acceptable.  On a fair  reading  of  the proviso to section 21(1)(a) it is clear that the legislative mandate  is  that the prescribed Authority shall  take  into account  the likely hardship to the tenant from the grant of the  application  as  against  the likely  hardship  to  the landlord from the refusal of the application.  This question can  appropriately  be considered by the Authority  when  he comes   to  the  conclusion  that   the  plea  of   bonafide requirement taken by the landlord is found to be acceptable. It  is  at  that stage that the Authority should  take  into account  the  hardship likely to be caused to the tenant  in allowing  the petition for eviction as against the  hardship likely  to  be  caused  to  the landlord  in  the  event  of rejection of the prayer for eviction of the tenant.  In case the  Authority comes to the conclusion that the case of bona fide  requirement pleaded by the landlord is not  believable and  acceptable  the question of allowing the  petition  for eviction  does  not arise and so the necessity of  making  a comparison between the hardship in allowing the petition for eviction and disallowing the same does not arise.

   This  Court in Hiralal Moolchand Doshi vs.  Barot  Raman Lal Ranchhoddas (1993) 2 SCC 458 held :

   The  High Court was also in error in assuming that  the landlord  is  supposed to have pleaded his  own  comparative hardship  in  the plaint itself.  Section 13(2)  comes  into play  at  the  stage when the court is  satisfied  that  the ground contained in clause (g) of sub-section (1) of Section 13  of the Act has been made out.  It is at that stage  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

the  court  has  to  examine  the  question  of  comparative hardship.   It was thus not necessary to plead in the plaint itself.   Often  the  parties at the stage of  recording  of evidence  of  bona  fide   personal  requirement  also  lead evidence  as to the comparative hardship of the landlord  or the  tenant.   But  such averments are not  required  to  be pleaded  in the plaint itself to give cause of action to the landlord  to  enable him to file a suit for eviction of  the tenant on the ground of his bona fide personal requirement.

   The  question  that remains to be considered is  whether the  High  Court  in  exercise   of  writ  jurisdiction  was justified  in  setting  aside  the order  of  the  Appellate Authority.   The order passed by the Appellate Authority did not  suffer from any serious illegality, nor can it be  said to  have  taken  a view of the matter  which  no  reasonable person was likely to take.  In that view of the matter there was  no  justification for the High Court to interfere  with the order in exercise of its writ jurisdiction.  In a matter like  the present case where orders passed by the  Statutory Authority  vested  with  power to  act  quasi-judicially  is challenged  before the High Court, the role of the Court  is supervisory   and   corrective.   In    exercise   of   such jurisdiction  the  High Court is not expected  to  interfere with  the  final  order passed by  the  Statutory  Authority unless  the  order suffers from manifest error and if it  is allowed  to  stand it would amount to perpetuation of  grave injustice.   The  Court should bear in mind that it  is  not acting as yet another Appellate Court in the matter.  We are constrained  to  observe that in the present case  the  High Court  has  failed to keep the salutary principles  in  mind while deciding the case.

   On  consideration of the entire matter we are  satisfied that   the  High  Court  erred   in  interfering  with   the judgment/order   passed   by    the   Appellate   Authority. Accordingly,  the  appeal is allowed, the judgment/order  of the  High  Court  dated 8.12.1999 in Writ Petition  No.   92 (R/C)  of  1992 is set aside and the order of the  Appellate Authority  i.e.   Vth Additional District  Judge,  Barabanki dated  12.5.1992  in  Rent Control Appeal No.1  of  1991  is confirmed.  The parties will bear their respective costs.