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PETITIONER: INDIA PIPE FITTING CO.

       Vs.

RESPONDENT: FAKRUDDIN M.A. BAKER AND ANR.

DATE OF JUDGMENT04/11/1977

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. UNTWALIA, N.L.

CITATION:  1978 AIR   45            1978 SCR  (1) 797  1979 SCC  (4) 587  CITATOR INFO :  R          1987 SC1939  (28)  C          1991 SC 241  (1,7,9)

ACT: Constitution of India, 1950-Powers of High Court under  Art. 227-Power  of Superintendence, cannot be exercised to  upset the conclusions of facts, however erroneous, they may be.

HEADNOTE: The  appellant who carries on the business of  hardware  and pipe-fitting  by  purchasing the good-will and  the  tenancy rights of the shop along with the stock-in-trade, furniture, fixture  etc. from the original tenant became the tenant  in shop No. 1 on the ground floor of the suit building known as "Asghar  Manzil" in Nagdevi Street Bombay, "predominantly  a locality  for the business of hardwares  and  pipe-fitting". The  eviction  suit  filed by the respondent  in  the  Small Causes  Court  on  various grounds  including  bonafide  and reasonable  requirement was dismissed.  The court held  that greater  hardship  could  be caused to the  tenant,  if  the decree of ejectment was passed.  An appeal against the said order  having  failed, the respondent  moved  the  High Court Art. 227.  The High     Court  allowed it  interfering with the concurrent findings of facts and held    that   the landlord’s requirement was reasonable and bonafide and there was no question of greater hardship to the tenant. Allowing the tenant’s appeal by special leave the Court HELD:     1.  The limitation of the Court  while  exercising power  under Art. 227 of the Constitution is  well  settled. Power under Art. 227 is one of judicial superintendence  and cannot be exercised to upset the conclusions of facts,  how- ever, erroneous these may be. [799 B-C] Waryam  Singh & Anr. v. Ammarnath and Anr., [1954] SCR  565; Nagendra  Nath  Bora and Anr. v. The Commissioner  of  Hills Division and Appeals, Assam and Ors.; [1958] S.C.R. 1240 and Bathutmal  Raichand  Oswal v. Laxmibai R.  Tarta  and  Anr., [1975] 1 S.C.C. 858 reiterated. (2)  It is possible that another Court may be able to take a different view of the matter by appreciating the evidence in a different manner, if it is determinedly chooses to do  so. That  will not be justice administered according the law  to which  Courts are committed notwithstanding dissertation  in

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season and out of season, about philosophies. [800 B] (3)  In the instant case, the High Court arrogated to itself the  powers  of a court of appeal which it did  not  possess under  the law and has exceeded its jurisdiction under  Art. 227 of the Constitution.  There was nothing so grossly wrong and unjust or shocking the Court’$ "conscience" that it  was absolutely necessary in the interest of justice for the High Court  to  step in under Art. 227 of the  Constitution,  and interfere with the conclusions of facts. [800 C-D]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1725  of 1972. Appeal  by Special Leave from the Judgment and  order  dated 22-6-72 of the Bombay High Court in Special Application  No. 1441 of 1968. R.   R.  Zaiwala,  K.  J.  John and J.  S.   Sinha  for  the Appellant. Y.   S.  Desai,  P.  B.  Agarwala and  B.  R.  Agarwala  for Respondent No. 1. 798 The Judgment of the Court was delivered by GOSWAMI, J.-This appeal by special leave is directed against the  judgment  and  order of the Bombay  High  Court  in  an application  under Article 227 of the  Constitution  against the  judgment and decree of February 29,1968, passed by  the Appellate Bench of the Small Causes Court at Bombay by which it  affirmed  the earlier decree of July 22,  1962,  of  the Small  Causes  Court  at Bombay by  which  it  affirmed  the earlier  decree of July 22, 1962, of the Small Causes  Court at   Bombay  in  Suit  No.  4271  of  1959  dismissing   the respondent’s suit. There is no dispute in this appeal that the appellant is the tenant and the first respondent is the landlord.  It is  not necessary  to describe the history of the assignment of  the tenancy  as  well as the transfer of the  ownership  of  the premises to the first respondent from his father who was the original  landlord  under which another party  continued  as tenant till May 1, 195 1, when the present appellant  became the tenant by purchasing the goodwill and the tenancy rights of  the  shop  along  with  the  stock-in-trade,  furniture, fixture, etc., from the original tenant, Messrs United  Tube &  Hardware  Co. The tenancy is in respect of  the  premises being  Shop No. 1 on the ground floor of the building  known as   "Asghar  Manzil"  at  146,  Nagdevi   Street,   Bombay, "predominantly a locality for the business of hardwares  and pipe-fitting".   The  Manzil has a ground  floor  and  three other storeys.  The entire property has been let out by  the respondent  to different persons.  The appellant carries  on the business of hardware and pipe-fitting in this shop.  The respondent  sought to evict the appellant by  instituting  a suit  in the Small Causes Court on March 17, 1959,  founding his  claim  on several grounds but we are confined  in  this appeal  only  to the respondent’s bona fide  and  reasonable requirement  of the premises for his own use and  occupation "as  an  architect  and engineering  designer"  to  run  his "office-cum-studio-cumshow-room"  therein.  "The  dimensions of the suit premises are 51(9) (63) feet".   The       other grounds, namely, of subletting and irregular payment of rent were  given up.  The trial court dismissed the suit on  July 2,  1962, holding that the premises were not reasonably  and bona  fide required by the respondent.  The court also  held that  greater hardship would be caused to the tenant if  the

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decree in ejectment were passed.  The respondent’s appeal to the  Appellate Bench of the Small Causes Court met with  the same fate and the findings of the trial court were affirmed. That led to the application under Article 227 of the Consti- tution before  the  High  Court  at  the  instance  of   the landlord.  This time the landlord  was  successful  as   the learned single Judge of the High Court allowed the  petition on  June 23, 1972, interfering with the concurrent  findings of  fact  and  held  that  the  landlord’s  requirement  was reasonable  and  bona  fide and there  was  no  question  of greater hardship to the tenant. The learned Judge of the High Court observed :               "In my judgment, every one of the reasons  and               the  entire approach of the learned Judges  of               the appellate Bench was per verse and shows  a               lack  of awareness of the real  conditions  of               accommodation in Bombay, at all times material               to the suit and even now." 799 The  learned Judge further observed that "it seems that  in the view of the learned trial Judge, richer the man  greater the hardship to him, and poorer the man lesser the  hardship to him........." The  appellant made a grievance before us that  the  learned Judge  of  the High Court did not grant any time to  him  to obtain stay orders from the Supreme Court which was then  in vacation.  Any way, the appellant moved the learned Vacation Judge  of  this  Court (Mathew, J.) on June  30,  1972,  and obtained  ex-parte  stay  of  eviction  and  later  obtained special leave to appeal after notice of motion.  That is how the matter has come before us. The  limitation  of the High Court  while  exercising  power under  Article  227  of the  Constitution  is  well-settled. Power  under Article 227 is one of judicial  superintendence and  cannot  be  exercised to  upset  conclusions  of  facts however  erroneous  those may be.  It  is  well-settled  and perhaps too late in the day to refer to the decision of  the Constitution Bench of this Court in Waryam Singh and Another v.  Amarnath and Another(1) where the principles  have  been clearly laid down as follows               "This  power of superintendence  conferred  by               article 227 is, as pointed out by Harries C.J.               in Dalmia Jain Airways Ltd.  v.     Sukumar               Mukherjee(2)  to 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". The  same view was reiterated by another Constitution  Bench of  this  Court  in  Nagendra Nath Bora  &  Another  v.  The Commissioner  of  Hills  Division  and  Appeals,  Assam  and Others.  (3) Even recently in Bathut mat Raichand  Oswal  v. Laxmibai R. Tarta and Another, (4) dealing with a litigation between a landlord and tenant under Bombay Rents, Hotel  and Lodging House Rates Control Act, 1947, this Court relying on its earlier decisions observed as follows :-               "If an error of fact, even though apparent  on               the face of the record, cannot be corrected by               means of a writ of certiorari it should follow               a   fortiori  that  it  is  not   subject   to               correction  by the High Court in the               exercise  of  its jurisdiction  under  Article               227.   The  power  of  superintendence   under               Article  227 cannot be invoked to  correct  an               error of fact which only a superior court  can

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             do  in  exercise of its statutory power  as  a               court  of  appeal.  The High Court  cannot  in               guise  of  exercising its  jurisdiction  under               Article  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". Whether   the  landlord’s  requirement  is  bona  fide   and reasonable has been      concurrently found by the twocourts below  against  the  landlord  by  appreciating  the  entire evidence.After examining the reasons given by (1) [1954] S.C.R. 565.(2) A.I.R. 1951 Cal 193. (3) [1958] S.C.R. 1240,(4) [1975] 1 S.C.C. 858. 800 both  the  courts  it  is not  possible  to  hold  that  the conclusions  are "perverse" or even that these  are  against the  weight  of  evidence  on  record.   It  is  a  case  of reasonably  possible  factual  appreciation  of  the  entire evidence and circumstances brought on the record. It  is  possible that another court may be able  to  take  a different view of the matter by appreciating the evidence in a  different  manner if it determinedly  chooses  to-do  so. However, with respect to the learned Judge (Vaidya, J.) that will  not be justice administered according to law to  which courts are committed notwithstanding dissertation, in season and out of season, about philosophies. We  are clearly of opinion that there was  no  justification for interference in this case with the conclusions of  facts by the High Court under Article 227 of the Constitution.  We are also unable to agree with the High Court that there  was anything so grossly wrong and unjust or shocking the court’s "conscience"  that  it  was  absolutely  necessary  in   the interest  of  justice for the High Court to  step  in  under Article  227  of the Constitution.  Counsel for  both  sides took  us  through the reasoning given by the High  Court  as well  as by the courts below and we are unable to hold  that the  High Court was at all correct in exercising its  powers under Article 227 of the Constitution to interfere with  the decisions  of  the courts below.  In our  opinion  the  High Court  arrogated to itself the powers of a court of  appeal, which it did not possess under the law and has exceeded  its jurisdiction under Article 227 of the Constitution. In the result the appeal is allowed.  The judgment and order of the High Court are set aside and those of the trial court and  the appellate Bench are restored.  Since there  was  an order  at the time of granting the special leave that  costs would  be  borne by the appellant in any  event.  the  first respondent will be entitled to his costs in this appeal. S.R.     Appeal allowed. 801