KALPESH HEMANTBHAI SHAHversusMANHAR AUTO STORES THROUGH ITS PARTNER & ORS.

                          [2014] 5 S.C.R. 20


A                  KALPESH HEMANTBHAI SHAH
                                    V.
      MANHAR AUTO STORES THROUGH ITS PARTNER &
                            ORS.
           (Civil Appeal Nos. 4266-4267 of 2014)
B
                            APRIL 1, 2014.

           [SUDHANSU JYOTI MUKHOPADHAYA AND
                   KURIAN JOSEPH, JJ.]

C       Constitution of India. 1950 Articles 226, 227 -
  Jurisdiction of High Court under - Held: High Court u/Article
  227 has jurisdiction to correct the error if apparent on the face
  of the record - However, u/Articles 226 and 227, it has no
  jurisdiction to interfere with or alter a finding of fact arrived at
D by an appellate court - In the instant case, claim of the
  appellant-landlord to use the premises for personal necessity
   was a question of fact which was decided by the appellate
  court in favour of landlord on appreciation of evidence - The
  appellate court came to a definite conclusion that the suit shop
E was reasonably and bonafidely required by the appellant for
  his use and occupation and it would cause comparative
  hardship to landlord than the tenants if decree of eviction is
  refused - There was no mixed question of law and fact
  involved in the case, much less question of law - The
F comparative hardship of tenant and landlord is a question of
  fact - In absence of any question of law involved with such
  facts, the High Court has erred in altering such finding under
  Articles 226 and 227 of the Constitution.

      The eviction suit filed by the appellant-landlord was
G dismissed by the civil court. The appellate court allowed
  the appeal of landlord and directed the respondent-tenant
  to hand over vacant and peaceful possession of the suit
  premises to the appellant.

H                                  20
 KALPESH HEMANTBHAI SHAH v. MANHAR AUTO STORES           21
               THR. ITS PARTNER

   The respondent filed writ petition before the High          A
Court which was allowed. The writ appeal thereagainst
was dismissed.

     In the instant appeals, it was contended for the
appellant that the High Court under Articles 226 and 227
                                                               B
of the Constitution of India had no jurisdiction to sit in
appeal and set aside the finding of facts arrived at by the
court below; that it was not a second appeal preferred
by the respondents, in fact no second appeal was
maintainable against the appellate court's order in
absence of any substantial question of law.                    C

    Allowing the appeals, the Court

     HELD: 1. In the instant case, on the question of
reasonable and bonafide need, the Trial Court answered
                                                               0
the issue against the appellant-landlord on the ground
that the appellant failed to prove his requirement of suit
premises. The appellate court on appreciation of evidence
came to a definite conclusion that the appellant is the
landlord within the meaning of Section 7(5) of the
                                                               E
Maharashtra Rent Control Act and the suit shop was
reasonably and bonafidely required by the appellant for
his use and occupation. The appellate court further held
that it would cause comparative hardship to appellant
than the respondents if decree of eviction is refused. In
light of such observation and finding, the appeal was          F
allowed and the respondents-tenants were ordered to
vacate the suit premises. [Para 8] [24-D-F]

     2. It is well settled that the High Court under Article
227 of the Constitution of India has jurisdiction to correct   G
the error if apparent on the face of the record. But in the
instant case, the respondents failed to bring on record
as to what was the error committed by the District Judge
in deciding the appeal. The claim of the appellant to use
                                                               H
    22       SUPREME COURT REPORTS             [2014] 5 S.C.R.


A the premises for personal necessity is a question of fact
  which was decided by the District Judge on appreciation
  of evidence. There was no mixed question of law and fact
  involved in the case, much less question of law. The
  comparative hardship of tenant and landlord is a question
B of fact. In absence of any question of law involved with
  such facts, the High Court can not alter such finding
  under Articles 226 and 227 of the Constitution of India.
  [Para 11] [25-E-G]

      3. The High Court had no jurisdiction under Articles
C 226 and 227 of the Constitution of India to interfere with
  or alter a finding of fact arrived at by an appellate court
  deciding the question of personal necessity of a landlord
  in a landlord-tenant dispute. The order passed by the
  appellate court is restored. [Para 12] [25-G-H; 26-A-B]
D
          Mohd. Shafi v. Additional District and Sessions Judge
    (VII}, Allahabad and Ors. (1977) 2 SCC 226 : 1977(2) SCR
    464 - relied on.

                        Case Law Reference:
E
         1977(2) SCR 464         Relied on            Para 10

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4266-4267 of 2014.

F       From the Judgment and Order dated 23.02.2010 of the
    High Court of Bombay at Nagpur in WP No. 5521 of 2009 and
    dated 01.10.2010 in LPA No. 150 of 2010 .

     .Siddhesh Kotwal, Bansuri Swaraj, Nirnimesh Dube for the
G Appellant.

          Sunil Sabharwal, Mahendra Kumar, Bankey Bihari Sharma
    for the Respondents.

         The Judgment of the Court was delivered by
H
 KALP ESH HEMANTBHAI SHAH v. MANHAR AUTO STORES                23
                THR. ITS PARTNER

    SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Delay                         A
condoned. Leave granted.

     2. These appeals have been preferred by the appellant-
landlord against the judgment and decree dated 23rd February,
2010 passed by the Single Judge of the High Court of                 B
Judicature at Bombay, Nagpur Bench in Writ Petition No.5521
of 2009 and the judgment and decree dated 1st October, 2010
passed by the Division Bench in LPA No.150 of 2010.

     3. The appellant-original plaintiff is the landlord and the
respondents-original defendants are the tenants with respect         C
to suit premises which is a shop admeasuring approximately
200 sq. ft. on the ground floor in the building named "Savita
Sadan" bearing New Municipal House No. 323 (2) in New Ward
No.23, Mofusil Plot, Morshi Road, Amravati.
                                                                     D
     4. After notice to the tenants to vacate the suit premises
on the ground of personal use, in absence of any positive
response, the appellant filed Small Cause Civil Suit No.16 of
2007 in the Court of Civil Judge, Junior Division, Amravati
seeking eviction of the respondents. The respondents filed their     E
written ·Statement denying the bonafide need of the appellant.
Witnesses were examined and evidences were brought on
record. Thereafter, 3rd Joint Civil Judge, Junior Division,
Amravati (hereinafter referred to as, 'the Trial Court') dismissed
the civil suit.
                                                                     F
     5. Aggrieved by the order of dismissal, the appellant
challenged the same in' Regular Civil Appeal No. 140 of 2008
in the Court of Principal District Judge, Amravati (hereinafter
referred to as, 'the Appellate Court'). On hearing the parties,
the Appellate Court vide judgment dated 31st October, 2009           G
allowed the appeal and directed the respondents to handover
vacant and peaceful possession of the suit premises to the
appellant. The said judgment was challenged by the
respondents in Writ Petition No.5521 of 2009 and the same
was allowed by the High Court by the impugned judgment dated         H
    24       S..;PREME COL,R' REPOR"'."S           [2014j 5 S.C.R.


A   23rd February, 2010. "'."he Letters Patent Appeal preferred by
    the appeilant agairst the said judgnient was not entertained
    being not maintainable by impugned judgment dated 1st
    October 2010.

8        6. i..earned counsei for the appellant submitted that the
    High Court under Articles 226 and 227 of the Constitution of
    India had .no jurisdict:on to sit in appeal and set aside the
    finding of facts arrived at by the Court below. It was not a
    second apoeal preferred by tre respondents, in fact no second
C   appeal was maintamable agairst the Appeilate Soi..rt's order
    in absence of any substantial question of law.

      7. Per contra, according to 'earned counsel for the
  respondents, if there are mixed queshon of facts and law, the
  High CoL..rt can interfere with the concurrent finding of facts
D under Articles 226 and 227 of the Constitution of India.

        8. ,.., tre present case. on the question of reasonable and
  bonafiae need, the Trial Court answered the issue against the
  appellant on the ground that the appellant failed to prove his
E requirement of suit premises. The Appellate Court on
  appreciation of evidence came to a definite conelusion that the
  appellant is the iandiord within the rr.eaning of Section 7(5) of
  the Maharashtra Rent Control Act and the suit shop is
  reasonably and bonafidely required by the appellant for his use
F and occupation. The Appellate Court further held that it would
  cause comparative hardship to appeilant than the respondents
  if decree of eviction is refused. In light of such observation ar.d
  finding, the appeal was allowed and the respondents-tenants
  were ordered to vacate the suit premises.

G        9. The High Court by the impugned judgment held:

         "It is not a case of landlord stating outright that the
         premises of his parents are not available to him, but of the
         landlord, who tried to explain the -.;se of the premises by
H        his parents ard failed to show that all the rooms available
 KALPESH HEMANTBHAI SHAH v. MANHAR AUTO STORES                 25
THR. ITS PARTNER [SUDHANSU JYOTI MUKHOPADHAYA, J.]

    on the ground floor are used by his parents. Therefore,           A
    applying yardstick indicated by the Supreme Court in the
    case of Badrinarayan Vs. Govindram, namely, degree of
    urgency and intensity of the felt-need, it has to be held that
    the respondent had failed to dispel the case of the tenant
    that he would suffer greater hardship."                           B

     10. The question about maintainability of a writ petition
under Article 226 read with Article 227 of the Constitution of
India against a finding of fact was considered by this Court in
Mohd. Shafi v. Additional District and Sessions Judge (VII},          C
Allahabad and others, (1977) 2 sec 226. In the said case this
Court held that in the case of mixed question of law and fact if
the High Court found that on a wrong interpretation of the
explanation the matter has been decided, the High Court can
correct the error and set aside the conclusion reached by the
Subordinate Court.
                                                                      0

     11. It is well settled that the High Court under Article 227
of the Constitution of India has jurisdiction to correct the error
if apparent on the face of the record. But in the present case
the respondents failed to bring on record as to what was the          E
error committed by the District Judge in deciding the appeal.
The claim of the appellant to use the premises for personal
necessity is a question of fact which was decided by the
District Judge on appreciation of evidence. There was no mixed
question of law and fact involved in the case, much less              F
question of law. The comparative hardship of tenant and
landlord is a questi'on of fact. In absence of any question of law
involved with such facts, the High Court can not alter such finding
under Articles 226 and 227 of the Constitution of India.

     12. In view of the aforesaid finding, we hold that the High      G
Court had no jurisdiction under Articles 226 and 227 of the
Constitution of India to interfere with or alter a finding of fad
arrived at by an Appellate Court deciding the question of
personal necessity of a landlord in a landlord-tenant dispute.
                                                                      H
    26         SUPREME COURT REPORTS            [2014] 5 S.C.R.


A   For the reason aforesaid, the judgment passed by the High
    Court cannot be upheld. We, accordingly, set aside the
    impugned judgment and decree dated 23rd February, 2010 and
    1st October, 2010, passed by the High Court and restore the
    order passed by the Appellate Court. The appeals are allowed.
B
    Devika Gujral                                 Appeals allowed.