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Bombay High CourtIndian Cases

Punamchand Dahyalal Nanwati vs Ramanlal Balubhai And Ors. on 8 October 1987

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Bombay High Court
Punamchand Dahyalal Nanwati vs Ramanlal Balubhai And Ors. on 8 October, 1987
Equivalent citations: 1987(3)BOMCR521
JUDGMENT

A.D. Tated, J.

1. The petitioner-defendant No. 2, who was a partner of the dissolved partnership firm Bharatkumar and Company, filed this writ petition under Article 227 of the Constitution of India against the judgment and decree in Civil Appeal No. 323 of 1983 decided by the learned Additional District Judge, Pune, on 16th January, 1985 whereby he dismissed the appeal preferred against the judgment and decree dated 20th September, 1982 in Civil Suit No. 2996 of 1978 passed by the learned Vth Additional Judge, Small Cause Court, Pune, whereby he ad decreed the respondent No. 1-plaintiff’s suit for eviction and arrears of rent.

2. The facts giving rise to this petition are that the suit premises situate at 92, Raviwar Peth, Pune, were let out by the respondent No. 1-plaintiff to the petitioner-defendant No. 2 for carrying on business of his partnership firm Bharatkumar and Company on monthly rent of Rs. 90/-. The defendant No. 2 and his brothers respondents Nos. 2 to 4-defendants Nos. 3 to 5 were the partners of Bharatkumar and Company. The defendant No. 2 hired the suit premises in the year 1959 and the partnership firm of Bharatkumar and Company carried on its business of dyes and chemicals at the suit premises. Bharatkumar and Company was dissolved on 27th June, 1977 and thereafter the defendant No. 2 in the name of Bharatkumar Nareshkumar and Company and the respondent No. 5-defendant No. 6, a registered firm, with his wife kumud and son Bharatkumar carried on the said business of dyes and chemicals at the suit premises from 1st April, 1977. The plaintiff, the landlord and the owner of the suit premises has three sons, namely, Dr. Veerkumar, Chandrakant and Sharad. Mr. Veerkumar Shah got his M.B.B.S. Degree from Pune University in the year 1985 and got M.D. Degree in Paediatric from the same University in the year 1970. The present suit was instituted by the respondent No. 1 on 28th November, 1978. He claimed ejectment of the defendant No. 2 from and recovery of possession of the suit premises on the grounds, amongst others, that he required the suit premises bona fide and reasonably for personal occupation and that the defendant No. 2 sublet portions of the suit premises to various companies, including the respondent No. 5-defendant No. 6 Company. According to the plaintiff, his son Dr. Veerkumar Shah, after obtaining the M.B.B.S. Degree, started his dispensary in a room under a staircase in building No. 93 Raviwar Peth, Pune, Building No. 93 consists of a ground and three upper floors. The said dispensary is on the ground floor. The suit premises are at the first and the second floors of building No. 92 which adjoins building No. 93 and is separated only by a common wall. The plaintiff avers that the accommodation in possession of his on for running the dispensary is not sufficient. According to him, the dispensary is in a room having no proper ventilation and there is no sufficient accommodation for keeping the patients and treating them. According to the plaintiff, his son is badly in need of more accommodation for starting a paediatric hospital and the suit premises, which are in the adjacent building, are suitable for starting such hospital. According to the plaintiff, the two floors above the dispensary at building No. 92 and the room on the terrace of that building are all occupied by his son Chandu who is serving with Bank of India. The plaintiff states that he has a bungalow at Prabhat Road, which is also called Karve Road, Pune, and he resided with his son Dr. Veerkumar Shah in the said bungalow. Dr. Shah also has flat in Adinath Society”) on Pune-Satara Road. The plaintiff’s son Sharadchandra is an architect and he carries on his profession at Bombay. According to the plaintiff, he has no other accommodation vacant for his son Dr. Shah to start his hospital and the suit premises which are suitable for housing a hospital are required by him bona fide and reasonably for the hospital of Dr. Shah. Secondly, the plaintiff contends that the defendant No. 2 let out portions of the suit premises to the defendant No. 6 Company and as such the plaintiff was entitled to terminate the tenancy of the defendant No. 2 on the ground of sub-letting also. The plaintiff alleged that he terminated the tenancy of the defendant No. 2 by a notice in the year 1972. He claimed possession of the suit premises also on the ground that the defendant No. 2 made alterations in the suit premises by putting up constructions of permanent nature, but that ground did not succeed and it is not now being pressed.

3. The learned trial Judge raised necessary issues and after referring them to trial he held that the respondent No. 1-plaintiff failed to prove that he required the suit premises bona fide and reasonably for his own occupation. He also found that in case a decree for eviction was passed, greater hardship would be caused to petitioner-defendant No. 2. He found that the defendant No. 2 sublet the suit premises and on that ground the plaintiff was entitled to a decree for eviction. Therefore, on the ground, he decreed the plaintiff’s suit for ejectment and recovery of possession of the suit premises. The defendant No. 2 preferred an appeal to the District Court, Pune, being Civil Appeal No. 323 of 1983. It was heard by the learned Additional District Judge, Pune, who reversed the finding of the learned trial Judge on the issues regarding bona fide requirement of the plaintiff and to prevent hardship. He found that the plaintiff proved that he required the suit premises reasonably and bona fide for his personal occupation and that greater hardship would be caused to the plaintiff if the decree for eviction was refused. He also, agreeing with the learned trial Judge, held that the defendant No. 2 had unlawfully sublet a portion of the suit premises. On those findings, the learned Additional District Judge dismissed the appeal and he granted time to the defendant No. 2 to vacate the suit premises till 15th March, 1985. The application Ex. 16, which was filed by the defendant No. 2 during the hearing of the appeal for production of some documents, was dismissed.

4. The petitioner-defendant No. 2, feeling aggrieved by the decrees for eviction passed by the two Courts below, preferred this writ petition.

5. The learned Counsel Mr. Rajendra v. Pai for the petitioner-defendant No. 2 contends that the respondent No. 1 plaintiff had not filed any cross objections or cross appeal in the District Court, Pune, and, therefore, the learned Additional District Judge could not reverse the findings recorded on issues Nos. 2 and 3 by the learned trial Judge. Mr. Pai referred to the provisions of Order XLI, Rule 22 C.P.C in support of his contention that without there being cross objections against the findings recorded by the learned trial Judge on issues Nos. 2 and 3, the learned Additional District Judge could not have reversed those findings. The learned Counsel Mr. K.J. Abyankar for the respondent No. 1-plaintiff, on the other hand, contends that there was a decree in favour of the plaintiff in the trial Court and, therefore, he could not file any cross objections. He submits that under the provisions of Order XLI, Rule 22 C.P.C. the plaintiff could support the decree, even on the issues which were decided against him, by showing that they were wrongly decided against him. In order to appreciate the contention of the learned Counsel for the parties it is necessary to reproduce the provisions of Order XLI, Rule 22 C.P.C. The provisions of Order ZXLI, Rule 22 C.P.C. which are relevant for the purpose of deciding the present petition read thus :—

“22. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour ; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
(2) Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
Explanation.—A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding. Notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is , wholly or in part, in favour of that respondent.”

The learned Counsel for the petitioner-defendant No. 2, in support of his contention that the finding recorded by the learned trial Judge against the respondent No. 1-plaintiff cannot be reversed by the Appeal Court without there being a cross-objection, relied on the decisions Gulabchand Ramchand Jain v. Norrbeg Umarbeg Mirza, ; Smt. Padmadevi Shankarrao Jadhav and others v. Kabalsing Garmilsing Sardarji and others, A.I.R. 1985 Bom. 337 (D.B.) and Choudhary Sahu (Dead) by Lrs. and others v. State of Bihar and others, . The case is under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter for the sake of brevity referred to as “the Bombay Rent Act”). R.A. Jahagirdar, J. who decided that case, at page 314 of the report observed thus :—

“There is considerable substance in this contention of Mr. Rane (learned Counsel for the petitioner). However, I notice that this question has two aspects. First, merely because an appeal arises from a decree passed under the Rent Act, the application of Order XLI, Rule 22 of the Civil P.C. is not automatically excluded. Even under the Rent Act decrees may be passed on more than one ground and if in appeal such decrees are upheld on one rather than the other ground, prejudice my not be caused to the appellant to all. In such case there is no reason why the provisions of Order XLI, Rule 22 of the Code of Civil Procedure should not be applied.”
(The bracketed portion supplied.) The learned Single Judge at pages 314-5 of the report further observed :—

“The second aspect of the question arises where the trial Court has negatived the claim of the landlord on one ground but has decreed the suit on another ground and in the appeal by the reversal of the grounds a prejudice is caused to the tenant. In such a case the tenant may justifiably complain about the procedure adopted under Order XLI, Rule 22 of the Civil Procedure Code. However, I do not wish to express any final opinion on this aspect of the case, because it is not necessary to do so on the facts of this case. In the instant case, by the appeal Court upholding the decree on the additional ground of requirement of the land has not caused any prejudice to the tenant. Indeed, by my finding given above that the landlord is not entitled to the decree on the ground of default in the payment of arrears of rent, the only ground on which the decree now stands is the ground mentioned in section 13(1)(g) of the Bombay Rent Act. This in effect bestows benefit upon the tenant. On the facts of this case, therefore, it can be said that the decree for eviction now supported by a ground which had been originally negatived by the trial Court cannot be the subject-matter of complaint by the tenant. I, therefore, refuse to interfere with the said decree on the ground that the provisions of Order XLI, Rule 22 of the Code of Civil Procedure are not applicable without deciding the question whether they are applicable or not.”
This decision does not in any way support the contention of the learned Counsel. In the present case also no prejudice could be caused to a tenant by reversing a finding on the ground of bona fide requirement.

6. Smt. Padmadevi Shankarrao Jadhav’s (supra) is under the provisions of section 110-B of the Motor Vehicles Act, 1939. In the case an award for compensation was passed by the Motor Accidents Claims Tribunal, Satara, in favour of the appellants. The appellants were not satisfied with the amount awarded by the Tribunal and, therefore, they preferred an appeal for enhancement of the amount. The ward was passed on the finding that the driver of the vehicle was negligent. The respondents in that case did not prefer any appeal or filed cross-objections challenging the award. Without filing objections they wanted to challenge the finding of negligence recorded by the Tribunal. It was held by this Court that the respondents without filing an appeal or cross objections could not challenge the finding of negligence on the basis of which the award was passed by the trial Court. At page 356 of the report their Lordships observed :—

“So far as the question as to whether the opponents can challenge the finding qua negligence of the opponent No. 1 Kabalsing is concerned, in our view, it is not open to the opponents to challenge the said finding in the absence of filling of an independent appeal or a cross-objection. It is not disputed that in an appeal filed under the provisions of the Motor Vehicles Act, it is open to the opposite party to file cross-objections, since the provisions of Order 41, Rule 22 (of the Code of Civil Procedure, 1908) will aptly apply to such an appeal.”
(The bracketed portion supplied.) In that case the respondents could have challenged the award passed against them and therefore without filing cross objections they could not challenge the decree passed against them. This is not the case here. Here there was no decree against the respondent No. 1-plaintiff and, therefore, there was no question of the plaintiff filing an appeal or cross objections against the decree. In this view of the matter, the decision in this case does not support the contention of the learned Counsel.

7. The decision in Choudhary Sahu’s case (supra) also does not support the contention of the learned Counsel for the petitioner-defendant No. 2. After reproducing the provisions of Order XLI, Rule 22(1) C.P.C. their Lordships of Supreme Court at page 99 of the report observed thus :—

“The first part of this rule (that is, Rule 22(1) of Order XLI of the Code of Civil Procedure, 1908) authorises the respondent (that is, the State of Bihar) to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the Court below (that is, the Commissioner of the Division, Bihar). The first part thus authorities the respondent only to support decree. It does not authorities him to challenge the decree. If he wants to challenge the decree, he has to take recourse to the second part, that is, he has to file a cross-objection if he has not already filed an appeal against the decree. Admittedly, the State of Bihar had neither filed any appeal nor cross-objection. Obviously, therefore, on the strength of first part of sub-clause (1) of Rule 22 of Order 41 the State of Bihar could only support the decree not only on the grounds decided in its favour but also on the grounds decided against it.”
(The bracketed portions supplied.) On going through this decision, I find that it does not support the contention of the learned Counsel.

8. The learned Counsel for the respondent No. 1-plaintiff in support of his contention that in view of the provisions of Order XL, Rule 22 C.P.C. the plaintiff could support the decree on the grounds which were held against him by the trial Court by showing tat the finding recorded by the trial Court in respect of those grounds were not correct relied on the decision of the Supreme Court in Sri Chandra Prabhuji Jain Temple and others v. Harikrishana and another, . At page 2570 of the report their Lordships of the Supreme Court observed thus :—

“It is no doubt true the respondent cannot be allowed to impugn the decree passed by the High Court [of Madras] in favour of the appellants as they did not file any appeal from that decree. But we think that there is no reason why they should not be allowed to urge the plea that the orders of sanction were invalid when the appellants want not only to maintain the decree passed by the High Court but also to get a decree charging the entire properties. In other words, the bar against urging the plea of the invalidity of the orders of sanction would apply only if the respondents seek to impugn the decree already obtained by the appellants but not when the appellants seek to obtain further reliefs in the appeal on the basis of the orders. In such a case were are not aware of rule of law which would preclude the respondents from urging the plea”.
“….the Full Bench decision of the Madras High Court in Venkata Rao v. Satyanarayana murthy, I.L.R. (1944) Mad. 147 : A.I.R. 1943 Mad. 698 (F.B.), has held that it is open to a respondent who had not filed cross-objection with respect to the portion of the decree which had gone against him ‘to urge in opposition to the appeal of the plaintiff, a contention which if accepted by the trial Court would have necessitated the total dismissal of the suit’ but that the decree in so far as it was against him would stand. The decree of the High Court here in so far as it held that the mortgage money can be recovered only from the half share in the properties was also a decree in favour of the respondents as it did not allow the claim of the appellants to recover it from the entire interest in the properties. To that extent, the respondents had a decree in their favour. That decree they could support o any a decree in their favour. That decree they could support on any of the grounds decided against them by the Court which passed the decree. And when they do this, they are only supporting and not attacking that decree. We think that the rule laid down by the Madras High Court in the above decision is sound.”
(The square bracketed portion supplied.)

9. In Shankar Sadu Wanjhe v. Smt. Parwatibai Ramchandra Dongre, Mukhi, J. considered provisions of O. XLI, R. 22 C.P.C. and at page 243-4 of the report observed thus :—

“Order 41, Rule 22 (of the Code Civil Procedure, 1908) clearly provides that any respondent may support the decree not only generally but also on the grounds decide against him in the Court below. A respondent is at liberty, if he so wishes to challenge the decree against him but he must first file his cross-objections ; after which he can certainly do so.”
(The bracketed portion supplied.) In the present case the respondent No. 1-plaintff did not want to challenge the decree or any part thereof. On the contrary, he wanted to support the decree only on the finding recorded by the learned trial Judge in his favour and also on the other grounds o which the learned trial Judge had recorded a finding against him. This he could do under the provisions of Order XLI, Rule 22 C.P.C. The same view has been taken by this Court in Nana Tukaram Jaikar v. Sonabai and others, . At gage 439 of the report Bharucha, J. observed thus :

“It is well settled that a respondent to an appeal may without filing cross objections support the decree on grounds decided against him by the lower Court.”
In Haladhar Sarma v. Assam-Go-Seva Samity, A.I.R. 1979 Gauhati 23, the same view has been reiterated.

10. The learned Counsel for the petitioner-defendant No. 2 contends that Order XLI, Rule 22 C.P.C. was amended in the year 1976 and after the amendment of the said Rule in 1976 the position is quite different, as, in view of the Explanation added to Clause (1) of Rule 22, a respondent, aggrieved by a finding of the Court in the judgment on which the decree appealed against is based, could file cross-objections against the finding recorded against him, though the ultimate decree is in his favour. The reading of Order XLI, Rule 22(1) C.P.C. even after the amendment, clearly shows that a respondent, though he has not appealed from any part of the decree, could support the decree even on the ground which was found against him by the trial Court by showing that the trial Court should have decided that ground in his favour. The Explanation appearing after Order XLI, Rule 22(2) C.P.C. makes an enabling provision and thereby the respondent may file cross objections against the finding recorded by the trial Court, though the ultimate decree may be in his favour. The Explanation does not in any way adversely affect the right of the respondent to support the decree on any of the grounds held against him by the trial Court by showing that the trial Court should have recorded a finding on that point in his favour. The opening sentence of Order XLI, Rule 22(1) C.P.C. clearly confers this right on the respondent. I am, therefore, unable to accept the contention of the learned Counsel for the petitioner-defendant No. 2 that the learned Appellate Judge was not right, without there being cross objections by the respondent No. 1-plaintiff, in reversing the findings on Issues Nos. 2 and 3 recorded by the trial Court against the plaintiff. The plaintiff was entitled to support the decree for eviction even on the ground of bona fide and reasonable requirement of the suit premises for his personal occupation by showing that the finding on that point recorded by trial Court was not correct. This he could do, in view of the provisions of Order XLI, Rule 22(1) C.P.C.

11. The learned Counsel for the petitioner-defendant No. 2 next contends that the learned trial Judge and also the learned Appellate Judge were not right in finding that the defendant No. 2 had sublet a part of the suit premises or had transferred his interest in part of the suit premises in favour of the respondent No. 5-defendant No. 6 Company and in decreeing the claim of the plaintiff for eviction under section 13(1)(e) of the Bombay Rent Act. The learned Counsel contends that after the dissolution of the original partnership firm Bharatkumar and Company in the year 1977 the defendant No. 2 formed a partnership firm styled as Bharatkumar Nareshkumar and Company and the partners of the said firm, besides himself, were his daughter Geeta and son Bharatkumar. He also formed another partnership firm known as “Crown Marketing Corporation”, the defendant No. 6. The partners of that partnership firm are his wife Kumud and son Bharatkumar. The learned Counsel contends that the defendant No. 2 was doing the same business which he was doing earlier as partner of Bharatkumar and Company at the suit premises. He submits that the partners of both the firms were the members of the family of the defendant No. 2. His wife Kumud and son Bharatkumar, being the members of the family of the defendant No. 2. were entitled to do business at the suit premises. According to the learned Counsel, by forming a partnership firm of wife and son it cannot be said that the defendant No. 2 brought in third parties at the suit premises. He pointed out that the defendant No. 2 had produced before the Appeal Court the Deeds of Partnership along with the application Ex. 16 and the learned Appellate Judge, though dismissed that application, has referred to those documents and the contents thereof in his judgment. The learned Appellate Judge at paragraph 20 of his judgment referred to those documents and he found that in the firm of Bharatkumar Nareshkumar and Company, besides the defendant No. 2, his married daughter and son Bharatkumar were the partners and in the defendant No. 6 firm the defendant No. 2’s wife Kumud and son Bharatkumar were that partners. The defendant No. 2 is not a partner in the defendant No. 6 firm. Both the partners of the defendant No. 6 firm, being members of the family of the defendant No. 2, were entitled to do business with the defendant No. 2 at the suit premises. By forming a partnership firm consisting of the wife and the son of the defendant No. 2, it cannot be said that a different legal entity was formed. There was no transfer of interest in the suit premises by Bharatkumar and Company in favour of the defendant No. 6 firm. No separate portion of the suit premises was allotted to the defendant No. 5 firm. Both the firms, in different names, were carrying on the same business of dyes and chemicals. Their Lordships of the Supreme Court in Dipak Banerjee v. Smt. Lilabati Chakraborty, Civil Appeal No, 10043 of 1983 decided on 30th July, 1987, 1987 reports S.C. 418 set out the ingredients for proving subletting for the purpose of eviction. At page 420 of the report Their Lordships observed thus :—

“In the premises the question arises whether the High Court was right in law. It is true in second appeal no Court, and in the instant case the High Court should not interfere with the concurrent findings of facts. It was rightly pointed out and it is well settled law by this Court not to interfere with the concurrent findings of facts. This was reiterated by this Court in Smt. Krishnawati v. Shri Hans Raj, , where this Court observed that on the concurrent finding of the fact where no question of law arises, the High Court should not interfere. It was further highlighted before us that the question of sub-tenancy in a situation like the present, is an inference drawn from a certain conduct. But in order to prove tenancy or sub-tenancy two ingredients had to be established, firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent. In Associated Hotels of India Ltd. Delhi v. S.B. Sardar Ranjit Singh, , this Court reiterated that on the question whether the occupier of a separate apartment in a premises was a licensee or a tenant, the test was whether the landlord had retained control over the apartment. Normally an occupier of an apartment in a hotel was in the position of licensee as the hotelkeeper retains the general control of the hotel including the apartment. But it is not a necessary inference of law that the occupier of an apartment in a hotel is a tenant. A hotelkeeper may run a first class hotel without subletting any part of it. Where the hotelkeeper retained no control over the apartment, the occupier was in the position of a tenant.”
“The question in this case is whether the alleged sub-tenant was in exclusive possession of the part of the premises and whether the tenant had retained no control over that part of the premises. There is no evidence on the fact that the alleged sub-tenant was in exclusive occupation of any part of the premises over which the tenant had not retained any control. On this aspect neither was there any pleading nor any evidence at all. No Court gave any finding on this aspect at all. In that view of the matter one essential ingredient necessary for a finding, the case of sub tenancy has not been proved. If that is so, the trial Court, the first Appellate Court and the High Court were in error in holding that the sub-tenancy was proved.”
In the present case there are neither pleadings nor is there any evidence that the portion of the suit premises was exclusively given in possession of the defendant No. 6 firm. There is also no evidence that the defendant No. 6 paid any compensation or rent for the use of the suit premises. The plaintiff in his cross-examination admitted that he did not have any documentary evidence about the subletting by the defendant No. 2 to other defendants and he had also no witness to prove subletting of the suit premises. As both the Courts below did not take into consideration the necessary ingredients set out above for proving subletting of the suit premises, their finding on the point of subletting cannot be sustained, as has been held by the Supreme Court in the case of Dipak Banerjee v. Smt. Lilabati Chakraborty, (supra). Consequently, agreeing with the learned Counsel for the petitioner-defendant No. 2, I find that the Courts below were not right in decreeing the claim of the respondent No. 1-plaintiff on the ground mentioned in section 13(1)(e) of the Bombay Rent Act.

12. The learned Counsel for the petitioner-defendant No. 2 next contends that the learned Appellate Judge was not right in reversing the finding of the trial Court on Issues Nos. 2 and 3. He submits that the learned trial Judge had taken into consideration all the evidence adduced by the parties and had rightly held that the respondent No. 1-plaintiff failed to prove that he required the suit premises bona fide and reasonably for his personal occupation and also that greater hardship would be caused to him in case the decree for eviction was passed. He submits that the learned trial Judge had rightly taken into consideration the Commissioner’s report, and as the three floors of the building alleged to have been occupied by the plaintiff’s son Chandu were not made available for inspection, he rightly drew an adverse inference against the plaintiff. He also submits that the Appellate Court did not give due weight to the report of the Commissioner and did not take into consideration that when the Commissioner visited the site the three floors of building No. 93 were vacant. He also pointed out that the learned Appellate Judge did not think rightly that the residential premises could not be used by the plaintiff’s son Dr. Veerkumar Shah for his hospital premises. Thus, according to the learned Counsel for the petitioner, the finding of fact recorded by the learned trial Judge was disturbed by the Appellate Court for no valid reason. The learned Counsel for petitioner contends that if all the premises in possession of the plaintiff’s family are taken into consideration, no reasonable man can reach the conclusion that the plaintiff does not have premises for the hospital of his son Dr. Veerkumar Shah and that he required the suit premises bona fide and reasonably for the hospital of his son. He also submits that defendant No. 2’s son Dr. Veerkumar Shah, who has been examined as P.W. 2, was not able to substantiate his claim for additional requirement for opening a hospital and, therefore, the learned Appellate Judge was no right in reversing the finding of the trial Court on the point of requirement of the suit premises by the plaintiff for bona fide personal occupation.

13. The learned Counsel for the respondent No. 1-plaintiff, on the other hand, contends that the Appellate Court is the last Court on facts and the finding of fact recorded by the Appellate Court on reappreciating the whole evidence and also duly considering the reasons recorded by the trial Court could not be challenged in the writ petition. He submits that this Court while acting in the supervisory jurisdiction under Article 227 of the Constitution cannot upset the finding of fact recorded by the Appellate Court. He submits that on appreciation evidence even if two views are possible, this Court cannot set aside the view taken by the Appellate Court and substitute its view in its place. In support of his contention he relied on the decision of the Supreme Court in M/s. India Pipe Fitting Co. v. Fakruddin M.A. Baker and another, . In that case, the respondent No. 1 sought to evict the appellant by instituting a suit in the Court of Small Couses at Bombay on 7th March, 1959, founding his claim on several grounds. One of the grounds was the respondent No. 1’s bona fide and reasonable requirement of the premises for his own use and occupation “as on architect and engineering designer” to run his “office-cum-studio-cum-show-room” therein. The other grounds, namely, of sub-letting and irregular payment of rent, were given up. The trial Court dismissed the suit on 2nd July, 1962 holding that the premises were not reasonably and bona fide required by the respondent No. 1. The Court also held that greater hardship would be caused to the tenant (that is, the appellant) if the decree in ejectment were passed. The respondent No. 1’s appeal to the Appellate Bench of the Court of Small Causes met with the seme fate and the findings of the trial Court were affirmed. That led to the application under Article 227 of the Constitution to this Court at the instance of the respondent No. 1 landlord. The landlord was successful, as the learned Single Judge of this Court allowed the petition on 23rd June, 1972, interfering with the concurrent findings of fact and held that the landlord’s requirement was reasonable and bona fide and there was no hardship to the tenant. Their Lordships of the Supreme Court while reversing the decision of this Court set down the limits of the exercise of jurisdiction of this Court under Article 227 of the Constitution. At pages 46-7 of the report their Lordships observed thus :—

“The limitation of the High Court while exercising power under Article 227 of the Constitution is well settled. Power under Article 227 is not 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 v. Amarnath, where the principle have been clearly laid down as follows :—
(at p. 217 of A.I.R.).
“This power of superintendence conferred by Art. 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, (S.B.), 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 v. The Commr. of Hills Division and Appeals Assam, . Even recently in Babhutmal Raichand Oswal v. Laxmibai R. Tarte, dealing with a litigation between a landlord and the tenant under Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947, this Court relying on its earlier decisions observed as follows (at pp. 1301, 1302 of A.I.R.) :
“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 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.”
Their Lordships of the Supreme Court have categorically stated that this Court while exercising its jurisdiction under Article 227 of the Constitution cannot arrogate to itself the powers of a Court of appeal, which it does not possess under the law. It was further pointed out by their Lordships that while exercising jurisdiction under Article 227 of the Constitution the High Court could not reappreciate the evidence in a different manner and reach a different conclusion than the one arrived at by the final Appellate Court.

14. The learned Counsel for the respondent No. 1-plaintiff next relies on the decision of the Supreme Court in Mohd. Yunus v. Mohd. Mustaqim and others, . Their Lordships of the Supreme Court at page 40 of the report, while considering the extent of the jurisdiction of this Court under Article 227 of the Constitution, propounded the law thus :—

“The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited ‘to seeing that an inferior Court or Tribunal functions within the limits of its authority,’ and not to correct an error apparent on the face of the record, much less an error of law. ……………
In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision.”
The learned Counsel also relied on the decision of the Supreme Court in M.M. Amonkar and others v. Dr. S.A. Johari, . In that case the respondent-plaintiff filed a suit in the Court of Small Causes at Bombay seeking a declaration that he was a protected licensee of the suit premises under section 15-A of the Bombay Rent Act as amended by Maharashtra Act XVII of 1973 and for an injunction restraining the appellants defendants from taking forcible possession of the suit premises and or disturbing with his use and enoyment thereof otherwise that in due course of law. His case was that he came to occupy exclusively the suit premises, being a cabin admeasuring about 175 square feet with the facility of using the adjacent common waiting-room together with the facility of water and electricity, on 1st May, 1970 on leave and licence basis under an oral agreement with the late Dr. Amonkar on payment of monthly compensation of Rs. 201/- for doing his private consultation and surgical practice. The suit was resisted by the appellants-defendants on three grounds, namely, (a) that the cabin was never given to the respondent-plaintiff on leave and licence basis as alleged by him that he was never in exclusive use and occupation thereof, but the user of the cabin was given to him because of his attachment as Honarary Surgeon to Dr. Amonkar Hospital through the good offices of one Dr. Rawalia, that the writing on the stamp paper of Rs. 1.50 p. bearing date 4th May, 1970 signed by the respondent-plaintiff reflected the true nature and character of the arrangement between the parties. It was emphatically denied that the said writing was obtained by the late Dr. Amonkar for the purpose or motive suggested by the respondent-plaintiff or was not intended to be acted upon; (b) that the cabin in question was not ‘premises’ within the meaning of section 5(8)(b) of the Bombay Rent Act inasmuch as the same could not be said to have been given on licence ‘separately’ because the respondent-plaintiff was permitted the user thereof only for two and a half hours in the evening on week days between 5 p.m. to 7-0 p.m. and for the rest of the time it was being used by the hospital staff and that one of the keys of that cabin always remained with the staff of the hospital and hence the plaintiff was not entitled to any protection under the Bombay Rent Act; and (c) that the cabin in question, being admittedly “a room in the hospital” fell within the exclusionary part of the definition of the ‘licensee’ given in section 5(4-A) and as such was outside the protection conferred on licensees by section 15-A of the Bombay Rent Act. The trail Court after considering the evidence adduced by both the parties did not accept the case of the respondent-plaintiff. It accepted the case of the appellants-defendants. It held that the user of the suit cabin had been permitted to the respondent-plaintiff not on leave and licence basis but because of his attachment as Honorary Surgeon to Dr. Amonkar Hospital and that Ex. No. 1 which was signed by the plaintiff was signed by him after fully realising the implications thereof and it reflected the true nature of the arrangement between the parties. On those findings the learned trial Judge held that the respondent-plaintiff was not entitled to the protection under section 15-A of the Bombay Rent Act. The trial Court dismissed the plaintiff’s declaratory suit and granted the ejectment application of the appellants defendants. In an appeal preferred by the respondent-plaintiff, the Appellate Bench of the Court of Small Causes, on a reappraisal of the entire record, confirmed the finding of the trial Court on the factual issue as also on the legal issues and dismissed the appeal, and the ejectment decree passed by the trial Court in favour of the appellants-defendants was confirmed. The respondent-plaintiff approached this Court under Article 227 of the Constitution by preferring two proceedings Special Civil Application No. 30 of 1979 and Writ Petition No. 115 of 1979- both of which were disposed of by this Court by a common judgment rendered on 18th August, 1980. This Court was of the opinion that there were two disturbing features revealed in the respective proceedings/judgments of the courts below which were suggestive of non-judicial approach, some bias and partiality in favour of the appellants-defendants and against the respondent-plaintiff on their part which necessitated a full and unrestricted exercise of its power of superintendence by going to the extent of reappreciating the evidence in depth as if it were a first Appellate Court; and after briefly indicating what it felt were the two disturbing features, the High Court reappreciated the entire evidence fully and in depth and came to the conclusion that the user of the suit cabin was given to the respondent-plaintiff on leave and licence basis and the writing Ex. No. 1 did not represent the real state of affairs as far as the respondent-plaintiff’s right to use the suit cabin was concerned and that the same had been taken by the late Dr. Amonkar only for his protection against his own landlord, namely. Life Insurance Corporation. This Court also negatived the findings recorded by the courts below on the two legal issues and held that the suit cabin was ‘premises’ within the meaning of section 5(8)(b) of the Bombay Rent Act, the same having been given on licence ‘separately’ to the respondent-plaintiff, and that the suit cabin was not “a room in the hospital” and as such the respondent-plaintiff could be and was a “protected licensee” entitled to claim protection under section 15-A of the Bombay Rent Act. The appellants-defendants took the matter to the Supreme Court and their Lordships of the Supreme Court reversed the judgment of this Court and observed thus at page 940 of the report :—

“We are clearly of the view that the High Court was not right in reversing the concurrent findings of fact recorded by both the courts below and even on merits the High Court judgment cannot be sustained.”
15. The learned Counsel for the respondent No. 1 plaintiff next relied on a recent decision of the Supreme Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, . This is also a case under the Bombay Rent Act and the appeal to the Supreme Court was from the decision of this Court, Their Lordships of the Supreme Court considered the extent of the jurisdiction of this Court under Articles 226 and 227 of the Constitution and laid down the law at pages 122-3 of the report thus :—

“As mentioned hereinbefore two question require consideration-how far and to what extent in exercise of its jurisdiction under Article 226 or 227 of the Constitution and in this respect regarding power to deal with factual findings, the jurisdiction of the High Court is akin both under Articles. 226 and 227 of the Constitution, can the High Court interfere with the findings of fact? It is well settled that the High Court can set aside or ignore the findings of fact of an appropriate Court if thee was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the courts below have come or in other words a finding which was perverse in law. This principle is well settled. In D.N. Banerji v. P.R. Mukharjee, it was laid down by this court that unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention it was not for the High Court under Articles. 226 and 227 of the Constitution to interfere. If there is evidence on record on which a finding can be arrived at and if the Court has not misdirected itself either on law or on fact, then in exercise of the power under Article 226 or Article 227 of the Constitution, the High Court should refrain from interfering with such findings made by the appropriate authorities. …….. Yet all these are for the Court’s finding facts and if such fact-finding bodies have acted properly in law and if the findings could not be described as perverse in law in the sense that no reasonable person properly instructed in law could have come to such a finding such findings should not be interfered with within the exercise of the jurisdiction by the High Court under Articles 226 and 227 of the Constitution.
“In case of finding of facts, the Court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Babhutmal Raichand Oswal v. Laxmibai R. Tarte, , where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert into a Court of Appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J., as the learned Chief Justice then was, observed at page 1301 of the report as follows:
“The Special Civil Application preferred by the appellant was admittedly an application under Article 227 and it is , therefore material only to consider the scope and admit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath, , that the :
” ….. …… power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, (S.B.) 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.”
Their lordships of the Supreme Court have also reproduced the following passage from the decision in the case of Nagendra Nath Bora and others v. Commissioner of Hills Division and Appeals, Assam, and others, .

“It is thus clear that the powers of judicial interference under Article 227 of the Constitution with order of judicial or quasi judicial nature are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the constitution the power of interference is limited to seeing that the Tribunal functions within the limits of its authority.”
At page 124 of the report their Lordships observed thus :—

“It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requires it if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Articles 226 and 227 of the Constitution to look into the fact in the absence of clear and cut down reasons where the question depends upon the appreciation of evidence. The High Court also should not interfere with a finding within the jurisdiction of the inferior Tribunal except where the findings were perverse and not based on any material evidence or it resulted in manifest of injustice See (Trimbak Gangadhar Telang), . Except to the limited extent indicated above the High Court has no jurisdiction. In our opinion, therefore, in the facts and circumstances of this case on the question that the High Court has sought to interfere, it is manifest that the High Court has gone into questions which depended upon appreciation of evidence and indeed the very fact that the learned trial Judge came to one conclusion and the appellate bench came to another conclusion is indication of the position that two views were possible in this case. In preferring one view to another of factual appreciation of evidence, the High Court transgressed its limits of jurisdiction under Article 227 of the Constitution. On the first point, therefore, the High Court was in error.”
(The square bracketed portion supplied.) Their lordships of the Supreme Court, after setting out the limits of the jurisdiction of this Court under Article 227 of the Constitution, set aside the judgment and order of this Court and restored that of the lower Appellate Court.

16. Bearing in mind the limitations on the exercise of jurisdiction by this Court under Article 227 of the Constitution, indicated by the Supreme Court in the judgments relied on the learned Counsel for the respondent No. 1 plaintiff and many other judgments, it is necessary to consider whether the District Court, which is a final Court of fact acting under the Bombay Rent Act has exceeded its authority in reversing the finding of the trial Court on the point of bona fide necessity and on reappreciation of the evidence in reaching the finding that the plaintiff proved that the required the suit premises bona fide and reasonably for housing the hospital of his son Dr.. Veerkumar Shah. The learned Appellate Judge has considered the evidence adduced by the plaintiff and the petitioner-defendant No. 2 and also the report of the commissioner appointed by the trial Court for local inspection. According to the learned Counsel for the petitioner when the Commissioner visited the suit premises first on 25th January, 1981 and secondly on 28th February, 1981, the defendant No. 2 pointed out to him that the first, second and the third floors of building No. 93 were vacant and the defendant No. 2 wanted that the Commissioner should inspect those premises and take their measurements, but the Commissioner could not inspect them, as they were found locked. According to the learned Counsel, the plaintiff did not supply the keys of those premises to the Commissioner, let he be exposed. According to the learned Counsel, the learned trial Judge, in view of the above conduct of the plaintiff, drew an adverse inference against the plaintiff and held that those three floors were available to the plaintiff for opening the hospital of his son Dr. Veerkumar Shah but the Appellate Court failed to draw an adverse inference against the plaintiff, and on the contrary he accepted the case of the plaintiff that those premises were occupied by his son Chandu, and Chandu being out of station, the lock cold not be opened and the premises could not be made available to the Commissioner for inspection. He admission that the learned Appellate Judge did not rightly refer to the admission of the defendant No. 2 in the cross-examination that those three floors were occupied by Chandu. He submits that the defendant No. 2 in his cross-examination had made it clear that those three floors were vacant on the day the Commissioner visited the site. According to the learned Counsel, the Appellate Court misdirected itself in not taking into consideration the fact that those three floors were vacant on the date the Commissioner visited the site. According to him had the learned Appellate Judge taken into consideration the fact that those floors were vacant, he would not have reached the conclusion that the suit premises were bona fide and reasonably required by the plaintiff for the hospital of his son Dr. Veerkumar Shah. Beyond the ‘word of the defendant No. 2, there is nothing on record to show that those three floors were not occupied by Chandu when the Commissioner visited the site. The Commissioner could not enter and inspect those premises, as they were locked. According to the plaintiff, his son Chandu, who was occupying those premises, had temporarily gone to other place, being in the service of the Bank of India. He and his family members were not seen in those premises. As stated earlier the defendant No. 2 in his cross-examination admitted that three floors were occupied by Chandu. He does not say when Chandu came to occupy those three floors. He only says that they were vacant on the day the Commissioner visited the site. With such evidence on record, it cannot be said that the learned Appellate Judge mis-directed himself in not drawing an adverse inference against the plaintiff.

17. The learned Counsel for the petitioner-defendant No. 2 next contends that the respondent No. 1 plaintiff has a bungalow at Karve Road, Pune, and his son Dr. Veerkumar Shah has a flat in Adinath Society and, therefore, the learned Appellate Judge should have held that the plaintiff could provide accommodation for the hospital of his son Dr. Veerkumar Shah In the bungalow at Karve Road or in the flat in Adinath Society. The learned Appellate Judge has taken into consideration that the bungalow at Karve Road is being used by the plaintiff and his son Dr. Veerkumar Shah for the residence. There was no evidence that the flat in Adinath Society, owned by Dr. Veerkumar Shah, was vacant and could be used as hospital. Dr. Veerkumar Shah, as stated earlier, obtained his M.B.B.S. Degree in the year 1965 and M.D. Degree in Paediatric in 1970. There was one room under the staircase occupied by a carpenter. The carpenter vacated that room and Dr. Veerkumar Shah Started his dispensary in that room in or about the year 1967. After obtaining the M.D. Degree in paediatric, Dr. Veerkumar Shah continued his practice at the same room. According to Dr. Veerkumar Shah, he requires more accommodation for starting his hospital, as he has to keep some of his patients as indoor patients for their proper treatment. Therefore, the plaintiff felt the need of more accommodation and instituted the present suit for obtaining possession of the suit premises from the defendant No. 2 who carried on his agency business at those premises. The suit premises are in building No. 92 adjoining building No. 93 in which the dispensary of Dr. Veerkumar Shah is housed at the ground floor. According to the plaintiff, the suit premises were suitable for the hospital of Dr. Veer Kumar Shah. As Dr. Veer Kumar Shah has been practising for more than 13 years and is duty qualified, being M.D. in Paadjatroc, it cannot be said that his requirement for additional accommodation for the hospital was unreasonable. The premises now occupied by Dr. Veerkumar Shah are of the size of about 300 square feet and they are situated under the staircase. There is no sufficient accommodation for the doctor to have his X-ray and other machines for treating the patients and there is also no room for keeping some of them as indoor patients. On taking into consideration all those facts, it cannot be said that the Appellate Court was not right in reaching the conclusion it had reached. As stated earlier, if there is evidence and on appreciating it the Appellate Court, which is the final Court of fact, reaches a particular conclusion, this Court while exercising its jurisdiction under Article 227 of the Constitution cannot interfere with the finding of fact arrived at by the final Court of Appeal.

18. The learned Counsel for petitioner-defendant No. 2 also pointed out to me that the Appellate Court was labouring under a wrong conception that the residential premises could not be used for housing the hospital of his son Dr. Veerkumar Shah and, therefore, the findings arrived at by him on such misconception are vitiated. It is true that the Appellate Court has mentioned in this judgment that the residential premises could not be used for business purposes or for opening a hospital. The plaintiff being the owner of those and other premises, the restriction under section 25 of the Bombay Rent Act is not applicable to him. Therefore, even the residential premises could have been used for opening a hospital. Though the learned Appellate Judge has committed a mistaken in this regard, he has taken into consideration that no residential premises owned by the plaintiff were available for starting the hospital of Dr. Veerkumar Shah. He found that the three floors of building No. 93 were occupied by the plaintiff’s son Chandu and the bungalow at Karve Road and the flat in Adinath Society were being used for residence. The suit premises were pre-eminently suitable for the hospital of Dr. Veerkumar Shah and as Dr. Shah has been carrying on his dispensary in a room on the ground floor of the adjoining building No. 93. Taking into consideration all those facts, the learned Appellate Judge reversing the finding of the trial Court held that the suit premises were bona fide and reasonably required by the plaintiff for the hospital of his son Dr. Veerkumar Shah. Therefore, the finding of the learned Appellate Judge, simply because he had committed a mistake in saying that the residential premises could not be used for hospital purposes, is not vitiated. On the evidence on record he has found that no other premises were available for opening the hospital of Dr. Veerkumar Shah and there was a great necessity for Dr. Shah to have his hospital at the suit premises which ere in adjoining building No. 92. Consequently, I am unable to agree with the learned Counsel for the petitioner that the finding of the learned Appellate Judge is in any way vitiated.

19. The learned Appellate Judge, after taking into consideration the oral and documentary evidence on record, has reached the finding that the suit premises are bona fide and reasonably required by the respondent No. 1-plaintiff for opening the hospital of his son Dr. Veerkumar Shah. He has also reached the conclusion that greater hardship would be caused by refusing the eviction decree than by granting it. The Appellate Court has acted with its authority and has taken all the relevant factors into consideration and as such this Court while exercising jurisdiction under Article 227 of the Constitution cannot interfere with those findings of fact and even after considering the evidence on record, I do not find that the conclusion reached by the learned Appellate Judge could not have been reached on the evidence on record. Therefore, this Court cannot interfere with the findings recorded by the learned Appellate Judge.

20. At this stage, the learned Counsel for the petitioner-defendant No. 2 drew my attention to sub-section (2) of section 13 of the Bombay Rent Act. The said sub-section reads as follows :—

“13(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 learned Counsel for the petitioner referred to the report of the Commissioner and submitted that the requirements of the respondent No. 1 plaintiff for housing the hospital of his son Dr. Veerkumar Shah can be met by decreeing the claim of the plaintiff only with regard to one of the two floors at present in possession of the petitioner. He submits that the decree for eviction for both the floors presently occupied by the petitioner could not be maintained, taking into consideration the requirements of the plaintiff’s son Dr. Veerkumar Shah for the hospital. The learned Counsel for the respondent No. 1 on the other hand, submits that no pleadings on this point were raised. No arguments are advanced on those lines either in the trial Court or in the Appeal court and, therefore, the point raised by the learned Counsel, which is a mixed question of law and fact, cannot be dealt with and decided by this Court while acting under Article 227 of the Constitution. I am in agreement with the learned Counsel for the respondent No. 1 that as there were no pleadings, no issue and no arguments on the point now advanced by the learned Counsel for the petitioner, the point raised by him cannot be considered by this Court. In order to decide it properly and judicially, proper pleadings and proper evidence in that direction will be necessary, I am, therefore, unable to agree with the learned Counsel for the petitioner that the decree for eviction should be limited to only one of the floors presently in possession of the petitioner.

21. In the request, the petition fails and it is dismissed with costs. The rule is discharged.

22. At the request of the learned Counsel for the petitioner-defendant No. 2, the execution of the decree for eviction of the suit premises is stayed for a period of two months from today, with a specific direction that during this period neither the petitioner nor the other defendants shall in any way either transfer the suit premises of create third party interest and part with possession of the suit premises.