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PETITIONER: CHANDMAL

       Vs.

RESPONDENT: FIRM RAM CHANDRA AND VISHWANATH

DATE OF JUDGMENT07/05/1991

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1991 AIR 1594            1991 SCR  (2) 732  1991 SCC  (3) 130        JT 1991 (2)   553  1991 SCALE  (1)931

ACT:      Hyderabad House (Rent, Eviction and Lease) Control Act, 1954-Section 26-Revisionary jurisdiction of High Court-Scope of.      Code  of  Civil Procedure,  1908-Section  115-Revision- Scope of.

HEADNOTE:      The appellant-landlord filed a suit for eviction of the respondent  firm-defendant-commission agent firm,  from  his shop  under  section 15(3)(a)(iii) of  the  Hyderabad  House (Rent,  Eviction and Lease) Control Act, 1954 on the  ground that  the  appellant  required the suit  shop  for  his  own personal  use as he intended to start commission agency  and other  business; and that the respondent did not vacate  the premise inspite of his two notices, terminating the tenancy.      The  respondent  filed  written  statement  before  the Additional  Rent Controller accepting the ownership  of  the appellant  and  tenancy  of the respondent  and  denied  the appellant’s allegation that he required the premises for his personal  use, as the appellant was a member of Hindu  Joint family  comprising of his father, and his brothers, and  his brothers and appellant; the appellant as one of the partners of  registered firm runs a kirana of commission agency  shop under  the name and style of M/s Rajmal Sumermal Surana  and the  appellant  owned many houses and shops and as such  was not  entitled  to an order of eviction.  In  the  additional written  statement it was further stated that the  appellant purchased the house from one registered partnership firm and one of the partners of the firm was occupying the house as a permanent  tenant since Samwat 2002.  It was also  contended that  the partners of the firm were not made parties to  the eviction proceedings and hence the suit was not tenable.      The  Trial Court considering the evidence  allowed  the suit  holding that the appellant was entitled to  evict  the respondent in view of the provisions of Section 15(2)(vi) of the  Act,  though  the plea of  bona  fide  requirement  was negatived.      The tenant-respondent filed an appeal under section  25 before the                                                        733

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District Judge, which was dismissed though it was held  that the  landlord failed to prove that he required the  premises for personal use.      The tenant-respondent’s revision petition under section 26 to the High Court, was allowed by a Single Judge.      Allowing the landlord’s appeal, this Court      HELD: 1. The jurisdiction of the High Court in revision against the order passed on appeal by the District Judge  is a  limited  one  and  it is almost  pari  materia  with  the provisions  of Section 115 of the Code of  Civil  Procedure. The High Court while exercising the revisional  jurisdiction can  interfere  with  the  order passed  on  appeal  by  the appellate  authority only on three grounds, i.e.  (i)  where the original or appellate authority exercised a jurisdiction not  vested  in  it by law, or (ii) where  the  original  or appellate  authority  failed to exercise a  jurisdiction  so vested, or (iii) where in following the procedure or passing the  order,  the  original  or  appellate  authority   acted illegally or with material irregularity. [738C-E]      2.  The findings in any view of the  matter  whatsoever cannot be held to be either without jurisdiction vested with them,  nor  it  can be held to be made by  the  original  or appellate authority illegally or with material irregularity. [738G]      3. The revisional jurisdiction of the High Court  under Section  26  of  the said Act is confined  strictly  to  the jurisdictional  error or illegal exercise of   jurisdiction. The finding of the High Court to the effect that it was  the duty  of the Court in the interest of justice  to  interfere even  with  the concurrent finding of facts because  on  the record, High Court found that there was not a single  factor to  come to the conclusion that the claim was mala  fide  or was  not bona fide as required by the statute,  is  entirely baseless  and  not  in accordance  with  the  provisions  of Section 26 of said Act which confers revisional Jurisdiction on the High Court. [738H-739B] 4. The claim of permanent tenancy by one of the partners has been  clearly  and  unequivocally  made  in  the  additional written  statement  filed on behalf of the  respondent.   In such circumstances, the provisions of Section 15(2) (vi)  of the  said  Act are applicable and an order of  eviction  can very well be passed on this ground alone. [739F]                                                        734

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2279  of 1991.      From  the  Judgment and Order dated  27.9.1989  of  the Bombay High Court in C.R.A. No. 500 of 1985.      S.C. Birla for the Appellant.      V.N.  Ganpule, S.V. Deshpande and Ms. Priya  Gupta  for the Respondent.      The Judgment of the Court was delivered by      RAY,  J. We have heard learned counsel for the  parties and we grant special leave.      This  appeal on special leave is directed  against  the judgment and order passed in Civil Revision Application  No. 500  of  1985  by the High Court of  Judicature  at  Bombay, Aurangabad  Bench allowing the Revision, setting  aside  the judgment  and  decree passed by the District Judge  in  Rent Appeal  No. 5 of 1984 confirming and allowing  the  judgment and  order of the Additional Rent Controller, Aurangabad  in R.C. No. ARC/71/3.

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    The matrix of the case is as follows:      The  appellant-landlord, Chandmal, S/o Sumermal  Surana as  plaintiff filed a suit for eviction of  the  respondent- defendent Firm Ram Chandra & Vishwanath, a commission  agent firm from his shop bearing Municipal No. 4-16-101 situated a Mondha,  Taluka,  District  Aurangabad  (maharashtra)  under section 15(3)(a)(iii) of the Hyderabad House (Rent, Eviction and  Lease)  Control  Act,  1954 to  be  hereinafter  to  be referred  to as the said Act on the ground inter  alia  that the  respondent was the tenant of the said shop attached  to the said house of the appellant-landlord on the monthly rent of  Rs.50 per month and the tenancy commences from  the  Ist day  of every month according to the English calendar,  that the  landlord-appellant required  the suit shop for his  own personal  use as he intended to start commission agency  and other  business  in the said shop, that  he  terminated  the tenancy of the respondency of the respondent by serving  the two  notices  dated  28.3.1969 and 8.12.1970  and  that  the respondent did not vacate the suit premises, hence the  suit has been filed for eviction of the tenant-respondent from the said premises.  Shankarrao Marutirao Sonawane,                                                        735 one  of  the partners of respondent firm filed  his  written statement  before the Additional Rent  Controller  accepting the ownership of the appellant and tenancy of the respondent at  the  rate of Rs. 50 per month. He, however,  denied  the appellant’s  allegation that he required the  suit  premises for  his  personal use.  According to  the  respondent,  the appellant  is a member of Hindu joint family  comprising  of his father, Sumermal, his real brothers and appellant and as one  of  the partners of registered firm runs  a  kirana  of commission  agency  shop  under the name and  style  of  M/s Rajmal Sumermal Surana.  It has been further submitted  that the  appellant owns many houses and shops at Aurangabad  and also runs a very big shop at Bhaji Bazar, Aurangabad and  is not entitled to evict.  In the additional written  statement it has been further stated that the appellant purchased  the house from Balkrishna and brothers, the firm Ramchandra  and Vishwanath  is  a  partnership  firm  registered  under  the Partnership Act, one of the partners of the firm  Ramchandra and Vishwanath is occupying the house as a permanent  tenant since  Samwat  2002.  It has also been  contended  that  the partners  of the firm are not made parties to  the  eviction proceedings and hence the suit was not tenable.      An  additional issue was framed at the request  of  the appellant which was to the following effect:          "Do defendant prove that he is permanent tenant and          his claim is bona fide."      The  trial court considering the evidences  adduced  on behalf  of the defendant-respondent held that the  defendant failed to prove the claim of permanent tenancy of Ramchandra Madhavrao since Samvat 2002 over the suit premises and  that the  claim  of permanent  tenancy is not  bona  fide.   This issue was thus answered in the negative.      The  Additional Rent Controller, therefore,  held  that the appellant is entitled to evict  the respondent from  the suit  premises  in view of the provisions of  Section  15(2) (vi) of the said Act and, therefore, Made an order directing the  tenant-respondent  to  hand over  vacant  and  peaceful possession of the said shop to the landlord-appellant within a  period  of 30 days of the order though he  negatived  the plea  of bona fide requirement of suit premises for his  own occupation.      The  order was made on February 14, 1984. Against  this judgment  and  order, the tenant-respondent filed  an appeal

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being Rent Appeal No. 5 of 1984 under section 25 of the said Act in the court of                                                        736 District  Judge  at Aurangabad. The learned  District  Judge confirmed  the  judgment and order of  the  Additional  Rent Controller holding that the landlord failed to prove that he bona  fide  required  the premises  for  personal  use,  for starting  new business.  It was further held that so far  as the  claim  of  permanent  tenancy, there  was  no  iota  of evidence  to  support  the  tenant-respondent’s  claim    of permanent tenancy.  It also held that the  tenant-respondent has  put forth the claim of permanent tenancy to defeat  the landlord-appellant’s  right  to  claim  possession  of   the premises and had there been any substance in the claim,  the tenant-respondent would have produced evidence in support of it.   Complete absence of evidence indicated that the  claim is  fake and not put forth bona fide.  The learned  District Judge, therefore, held that the tenant’s claim of  permanent tenancy  was not bona fide and so upheld the finding of  the Additional Rent Controller and granted three months’ time to the  tenant-respondent  to deliver possession  of  the  suit premises to the landlord-appellant.      The   tenant-respondent  feeling  aggrieved  filed   an application for Revision under Section 26 of the said Act in the  High  Court at Bombay (Aurangabad  Bench)  being  Civil Revision  Application  No. 500 of 1985.  The  said  Revision Application was allowed by the learned Single Judge  setting aside  the  concurrent finding of the courts  below  holding inter  alia that in the reply of the tenant to  the  notices sent by the landlord, there was no semblance of a claim  for permanent tenancy.  It was further held that in the  written submission there was no whisper about the claim of permanent tenancy.   It is for the first time that in  the  additional written statement filed on behalf of the tenant the claim of permanent  tenancy  by  one  of  the  partners,   Ramchandra Madhavrao since Samwat 2002 was made.  It has also been held that during the trial, Shankarrao Marutirao Sonawane, one of the  partners  of  the respondent firm who  has  signed  the written statement has not uttered a word in his examination- in-chief  with regard to the question of permanent  tenancy. It was, therefore, held that  in these circumstances "it  is the  duty  of  the  Court in  the  interest  of  justice  to interfere even with a concurrent finding of fact because  on the record, I find that there is not a single factor to come to  the conclusion that the claim was mala fide or was   not bona fide as is required by the statute."      The  learned  Single Judge, therefore,  set  aside  the judgments  of  the  courts below and  allowed  the  Revision Application with costs throughout.      It  is  against this judgment and  order,  the  instant appeal on                                                        737 special  leave  has  been  filed by  the  landlord.   It  is convenient to set out hereinbelow the relevant provisions of Section  15(2)(vi)  of  the said Act  before  proceeding  to consider  whether  the High Court was justified  in  setting aside the judgment and order of the courts below:          Section 15(2)(vi):          A tenant shall not be evicted, whether in execution          of a decree or otherwise except in accordance  with          the provisions of this section--          (vi)  that the tenant has denied the title  of  the          landlord  or claimed a right of  permanent  tenancy          and that such denial or claim was not bona fide the          Controller shall make an order directing the tenant

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        to put the landlord in possession of the house, and          if the Controller is not so satisfied he shall make          an order, rejecting, rejecting the application."      It is also pertinent to set out in this connection  the provisions of Section 26 of the said Act:          Section 26:          "Notwithstanding anything contained in this Act  or          any  other  law  for the time being  in  force,  an          application  for  revision shall lie  to  the  High          Court  from any final order passed on appeal by  an          appellate authority on the following grounds:          (a)  that  the  original  or  appellate   authority          exercised  a jurisdiction not vested in it by  law,          or          (b) that the original or appellate authority failed          to exercise a jurisdiction so vested, or          (c)  in  following  the procedure  or  passing  the          order,  the original or appellate  authority  acted          illegally or with material irregularity."      There  is no dispute regarding the submission  made  in para  9 of the additional written statement which is a  part of  the  same  written statement, filed  on  behalf  of  the respondent  by  one of its  partners,  Shankarrao  Marutirao Sonawane to the effect that one of the partners                                                        738 of  the  said firm, Ramachandra Madhavrao is  occupying  the house  as a permanent tenant since Samvat 2002.  Admittedly, on  the  basis  of this  additional  written  statement,  an additional  issue  No. 1 was framed at the  request  of  the landlord-appellant whether the claim of permanent tenancy of Ramchandra Madhavrao was bona fide.  It is evident from  the provisions of Section 15(2)(vi) as set out hereinbefore that if  the tenant has claimed a right of permanent tenancy  and that such claim was not bona fide the Controller shall  make an  order  directing  the  tenant to  put  the  landlord  in possession of the house.  The Additional Rent Controller  as well as the District Judge considered carefully and minutely the evidences adduced on behalf of the tenant-respondent and found  that  claim of permanent tenancy was not  bona  fide. Accordingly,   the  courts  below  held  that  the   tenant- respondent  was liable to be evicted from the suit  premises on this ground alone and passed order for eviction from  the suit  premises.   The  jurisdiction of  the  High  Court  in revision against the order passed on appeal by the  District Judge  is a limited one and it is almost pari  materia  with the  provisions of Section 115 of the Code  Procedure.   The High Court while exercising the revisional jurisdiction  can interfere  with the order passed on appeal by the  appellate authority only on three grounds i.e. (i) where the  original or  appellate authority exercised a jurisdiction not  vested in  it  by  law, or (ii) where  the  original  or  appellate authority  failed to exercise a jurisdiction so  vested,  or (iii) where in following the procedure or passing the order, the original or appellate authority acted illegally or  with material  irregularity.   It is evident from  the  averments made in para 9 of the additional written statement that  one of the partners of the respondent firm, Ramchandra Madhavrao occupied  the  said  premises as a  permanent  tenant  since Samvat 2002.  This claim of permanent tenancy was held to be not  bona  fide  by the original court as  well  as  by  the appellate  authority on a consideration and appraisement  of the evidences adduced on behalf of the tenant-respondent and as  such both the courts below passed order of  eviction  of the  tenant-respondent  from the suit premises.   These  are admittedly  concurrent  findings of fact arrived at  by  the

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original  and  the  appellate  authority.   Moreover,  these findings  in  any view of the matter whatsoever,  cannot  be held to be either without jurisdiction nor it can amount  to a failure to exercise jurisdiction vested with them, nor  it can  be  held  to  be made  by  the  original  or  appellate authority illegally or with material irregularity.      The  revisional  jurisdiction of the High  Court  under Section  26  of  the said Act is confined  strictly  to  the jurisdictional  error or illegal exercise  of  jurisdiction. The finding of the High Court to the effect                                                        739 that it was the duty of the Court in the interest of justice to  interfere  even  with the concurrent  finding  of  facts because on the records, High Court found that there was  not a single factor to come to the conclusion that the claim was mala  fide or was not bona fide as required by the  statute, is  entirely  baseless  and  not  in  accordance  with   the provisions  of  Section  26 of the said  Act  which  confers revisional jurisdiction on the High Court.  It is  pertinent to mention in this connection the decision in J. Pandu v. R. Narsubai,  [1987]  1 SCC 573. It is a case  under  the  A.P. Buildings (lease, Rent and Eviction) Act, 1960.  Sub-section 2(vi)  of  Section  10 of A.P. Buildings  (Lease,  Rent  and Eviction)  which  is  similar to Section  15(2)(vi)  of  the Hyderabad  Houses  (Rent, Eviction and Lease)  Control  Act, 1954  sets  out two grounds of eviction viz. (1)  denial  of title  of the landlord without bona fides and (2)  claim  of permanent  tenancy rights without bona fides.  It  was  held that  "consequently,  either  denial of title  or  claim  of permanent  tenancy without bona fides will itself be  enough to attract Section 10(2)(vi).  The order of eviction on this ground,  has therefore, to be sustained.  By reason of  this conclusion alone the appeal can be dismissed."      In  the  case of Majati Subbarao v.  P.V.K.Krishna  Rao (deceased)  by Lrs., [1989] 4 SCC 732 it has  been  observed that the denial of title of the landlord by the tenant  must be  made in clear and in unequivocal terms.  It was  further observed  that it is well settled that the court  hearing  a suit  or  appeal  can take into  account  events  which  are subsequent  to  the  filing of the suit  in  order  to  give appropriate relief or mould the relief appropriately.      As  we  have  stated hereinbefore  that  the  claim  of permanent  tenancy  by  one  of  the  partners,   Ramchandra Madhavrao  has  been clearly and unequivocally made  in  the additional   written  statement  filed  on  behalf  of   the respondent.   In  such  circumstances,  the  provisions   of Section  15(2)(vi)  of the said Act are  applicable  and  an order  of  eviction can very well be passed on  this  ground alone.      In  the  premises  aforesaid, the  judgment  and  order passed  in revision by the High Court is contrary to law  as the  High Court in exercise of its  revisional  jurisdiction interfered with the concurrent finding of fact arrived at by the original court as well as the appellate authority.   The High  Court should not have reversed the same in  excise  of its  revisional  jurisdiction under Section 26 of  the  said Act.  We, therefore, set aside the judgment and order of the High  Court and uphold the orders of the court  below.   The respondent is given three                                                        740 months’ time to vacate the suit premises on filing the usual undertaking  that they will not induct anybody  or  transfer the same to any other person and they will go on paying  the rent  of  the premises at the usual rate  and  will  deliver vacant  and peaceful possession of the suit premises  on  or

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before  the  expiry  of the said  period  to  the  landlord- appellant.  In the facts and circumstances of the case,  the parties will bear their own costs. V.P.R.                                       Appeal allowed.                                                        741