WP. 1691-94 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 1691 OF 1994 1. Samta Vikas Mandal, ) An unregistered Society, having its office at ) 175, Old Bazar, Kirkee, Pune 411 003. ) 2. The Secretary, Smta Vikas Mandal, Vasant Kisan Kamble, ) as well as Member, 173, Old Bazar, Kirkee, ) Pune-411 003. ) 3. Smt. Vimal Pandu Shinde, Adult, ) Occu.- Household, residing at 175 Old Bazar ) Kirkee, Pune-411 003. ) 4. Vinayak Govind Zumbare, Adult, ) residing at 22, T. S. Jijamata, Kirkee, ) Pune-411 003. ) 5. Smt. Chandrabhaga Kamble, Adult, ) Occ.- Residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 6. Sahebrao Alhat, Adult, ) WP. 1691-94 - 2 - residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ) 7. Janardan Kamble (Deleted) ) 8. Genba Sonawane (Deleted) ) 9. Sadashiv Ramchandra Kamble (Deleted) ) 10. Harishchandra Ghodke, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-400 003. ) 11. Raju Govind Jadhav, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 12. Vijay Krishnarao Kamble, Adult, ) residing at 179, Old Bazar, Kirkee, ) Pune-411 003. ) 13 Ramesh Gaikwad (Deleted) ) 14. Milind Jagtap, Adult, ) residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ) 15. Anil Shinde, Adult, ) residing at 175, Old Bazar Kirkee, ) Pune-411 003. ) WP. 1691-94 - 3 - 16. Shankar Govind Jagtap, Adult, ) residing at Patrachi Chawl, Kirkee, ) Pune-411 003. ) 17. Raghan Gaikwad (Deleted) ) 18. Sanjay Janardan Kamble, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 18-A Suresh Ghodke, Adult, ) residing at 176, Juna Bazar, Kirkee, ) Pune-411 003. ) 19. Sumedh Kamble, Adult, ) residing at 177, Old Bazar Kirkee, ) Pune-411 003. ) 20. Jitendra Kamble, Adult, ) residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ) 21. Shailesh Kamble, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 22. Sanjay Jadhav (Deleted) ) 23. Balu Sonawane, Adult, ) WP. 1691-94 - 4 - residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 24. Satish Kamble, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 25. Umesh Ghodke, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 26. Manish Kamble, Adult, ) residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ) 27. Pramod Jadhav (Deleted) ) 28. Nitin Kamble, (Deleted) ) 29. Santosh Kamble, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 30. Sanjay Krishnarao Kamble, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 31. Sumedh Jadhav, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) WP. 1691-94 - 5 - 32. Ravindra Salve, Adult, ) residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ) 33. Sandip Ghodke, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 34. Sunil Shinde, Adult, ) residing at Old Bazar, Kirkee, ) Pune-411 003. ) 35. Rupesh Kamble, Adult, ) residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ) 36. Vinod Kamble, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 37. Ashok Shinde, Adult, ) residing at 179, Old Bazar, Kirkee, ) Pune-411 003. ) 38. Anand Kamble, Adult, ) residing at 179, Old Bazar, Kirkee, ) Pune-411 003. ) WP. 1691-94 - 6 - 39. Smt. Rahibai Jadhav, Adult, ) residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ) 40. Sou.Revubai Shinde, Adult, ) residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ) 41. Sou. Prabha Vasant Kamble, Adult, ) residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ) 42. Sou. Bhagan Harishchandra Ghodke ) Adult, residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 43. Sou. Vatsala Janardan Kamble, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 44. Sou. Anusaya Jadhav, Adult, Adult, ) residing at 176, Old Bazar, Kirke, ) Pune- 411 003 ) 45. Sou. Sunita Kamble, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 46. Sou. Pramila Sonawane, Adult, ) WP. 1691-94 - 7 - residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 47. Sou. Rajani Vinayak Zumbare, Adult, ) residing at 22, T.S. Jujamata Galli, ) Old Bazar, Kirkee, Pune-411 003. ) 48. Smt. Bhagubai Jagtap, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 49. Sou. Anita Nandu Jadhav, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 50. Sou. Kanta Ramesh Gaikwad, Adult ) residing at Gadi Adda, K.C.B. Chawl, ) Kirkee, Pune-411 003. ) 51. Sou. Tulsabai Krishnarao Kamble (Delete) ) 52. Kumari Maya Javale, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 53. Kumari Sudha Narayan Kamble, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) WP. 1691-94 - 8 - 54. Kumari Vaishali Sadashiv Kamble, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 55. Kumari Nanda Haribhan Jagtap, Adult, ) residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ) 56. Kumari Seema Harishchandra Ghodke, Adult) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 57. Kumari Manda Nathu Shinde, Adult, ) residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ) 58. Kumari Karuna Narayan Kamble, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 59. Sau. Leela Shankar Jagtap, Adult, ) residing at 405, Patrayachi Chawl, Old ) Bazar, Kirkee, Pune-411 003. ... Petitioners Vs. 1. Shaikh Sirajuddin, Adult, Occu.-Business, ) residing at 175, Old Bazar, Kirkee, ) Pune-411 003. ) WP. 1691-94 - 9 - 2. Prem Javale, Adult, ) residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ) 3. Ramesh Pawar, Adult, residing at Ganga ) Height, Kirkee, Pune-411 003. ) 4. Ashok Baban Jagtap, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 5. Rajesh Kamble, Adult, ) residing at 179, Old Bazar, Kirkee, ) Pune-411 003. ) 5-A Raju Chavan, Adult, ) residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ) 6. Mrs. Usha Ramesh Pawar, Adult, residing ) at Ganga Heights, Kirkee, 1st Floor, Old ) Bazar, Pune-411 003. ) 7. Mrs. Kamal Prem Javale, Adult, ) residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ) 8. Ramakant Gaikwad, Adult, ) WP. 1691-94 - 10 - residing at 11/12, Old Bazar, Kirkee, ) Pune-411 003. ) 9. Miss Pradnya Narayan Kamble, Adult, ) residing at 176, Old Bazar, Kirkee, ) Pune-411 003. ) 10. Miss Yama Nathu Shinde, Adult, ) residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ) 11. Smt. Seetabai Chavan, Adult, ) residing at 177, Old Bazar, Kirkee, ) Pune-411 003. ... Respondents *** Mrs. Gauri Godse, for the Petitioners. Mr. N. R. Bubna, for Respondent No.1. Mrs. Anjali Helekar, for Respondent Nos. 2 to 4, 5A, 6,7 & 9 to 11. *** CORAM: V. M. KANADE J. DATE : JUNE 14, 2011 ORAL JUDGMENT 1. The appellants are the original defendants and respondents are the original plaintiffs. The respondent No.1/ original plaintiff purchased the suit property some time in the year 1988. Prior to the WP. 1691-94 - 11 - respondent No. 1 purchasing the said property, one Sayyad Noor Sayyed Hussain and Mrs. FatamabiSayyed Noor Sayyed Hussain were the owner of House No. 175-1, situated at Juna Bazar Kirkee, Pune. The erstwhile owner of the premises had let out two rooms on the ground floor of the house to the petitioner No.1. Petitioner No.1 is an unregistered Society, and the other petitioners are members of the said Society. Erstwhile owner initially filed the suit against one R. B. Kamble who was described as proprietor of Samta Vikas Mandal and against petitioner No.3 Smt. Vimal Pandu Shinde for eviction from the said two rooms on the ground that the said two rooms were sublet to petitioner No.3 herein and other grounds under the provisions of Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 (hereinafter referred to as the ‘Bombay Rent Act’). The trial Court partly decreed the suit and decree for possession was passed in respect of one of the said two rooms. An appeal was preferred by petitioner No.1 herein challenging the judgment & decree dated 15th September, 1975 passed by the trial Court. The District Court Pune allowed the Civil Appeal and dismissed the suit on the ground that all the members of petitioner No.1 which was an unregistered Society were not impleaded. This order dated 20th September 1976 was challenged by filing the Special Civil Application WP. 1691-94 - 12 - Nos. 267 and 268 of 1977 in this Court. However, said Civil Applications were dismissed by the judgment and order dated 26th October, 1980. Thereafter another suit was filed by the erstwhile owner Sayyed Noor Sayyed Hussein against petitioner No.1, N. K. Shinde and R. B. Kamble, as well as petitioner No.3. That suit was also filed under the provisions of the Bombay Rent Act on various grounds. The said suit was dismissed by the trial Court. The appeal filed against the said judgment was lateron withdrawn on 4-11-1987. Thereafter present respondent No.1 purchased the suit property and he filed a suit against respondent Nos. 2 to 11 for eviction from the suit premises. The notice of termination was received on 27-7-1985. Reply was given by the petitioner No.1, and thereafter the suit was filed. The decree for possession passed by the trial court passed was confirmed by the Additional District Judge, Pune. Being aggrieved by the said judgment and order, the petitioners have preferred the present writ petition under Art. 227 of the Constitution of India. 2. The learned counsel appearing on behalf of the petitioner, firstly, submitted that both the courts ought to have held that respondent No.1 was estopped from contending that provisions of the Bombay Rent Act were not applicable to the suit premises since in the earlier WP. 1691-94 - 13 - proceedings, the predecessor-in-title had accepted and acknowledged that provisions of the Bombay Rent Act were applicable to the tenancy of the petitioners. It was submitted that no issue was framed by the trial court regarding applicability of the provisions of the Bombay Rent Act. It was submitted that both the lower courts had erred in holding that the suit premises were not given for the purpose of offering prayers and therefore, it did not fall within the meaning of Section 1 of the Bombay Rent Act. It is submitted that the word ‘education’ was not properly interpreted by both the courts below. It was then submitted that the trial court had erred in holding that the issue of res-judicata does not arise. It was submitted that the lower appellate court also did not consider this aspect. It is submitted that reliance was wrongly placed on the judgment of the learned Single Judge of this Court in the case of – Friends Union Club & Ors. vs. Nanibai Moreshwar Choudhari & Ors.1 . Compilation of documents was also filed on behalf of the petitioners and the learned counsel for the petitioners has strenuously urged on the submission, after taking me through the plaint, written-statement of defendant Nos. 1 and 2, notes of evidence, documents produced by the plaintiff, documents produced by the defendants. The learned counsel appearing for the 1 Bom. R.C. 221 WP. 1691-94 - 14 - petitioners has also taken me through the judgment and order passed in appeal in the earlier suit in support of her submission. 3. The learned counsel appearing for the respondent, however, very briefly submitted that since concurrent finding has been recorded by both the courts below, this court should not interfere with concurrent finding of fact while exercising jurisdiction of this Court under Art. 227 of the Constitution of India. He submitted that earlier suit was filed by the erstwhile owners of the suit property and not by the petitioners, since they had purchased the property in 1988. They had filed the suit, specifically on the ground of breach of terms of lease and the notice was issued under Section 106 of the Transfer of Property Act. He submitted that since earlier suit was filed under the assumption that provisions of the Bombay Rent Act apply to the erstwhile owner and the present suit was filed by respondent No. 1 herein against new owner of the premises for breach of the terms of lease under the Transfer of Property Act Section 11 of the Civil Procedure Code was not applicable in the present case, since cause of action in the present suit was entirely different. It was further submitted that question of applicability of provisions of the Bombay Rent Act were never argued before the lower appellate court and for the first time the said submissions were WP. 1691-94 - 15 - being advanced in the High Court. 4. Having heard the learned counsel appearing on behalf of the petitioners and the respondents and before taking into consideration the rival submissions, it is necessary to very briefly understand the powers and jurisdiction of this Court under Art. 227 of the Constitution of India. In a recent judgment, the Apex Court in the case of -Shalini Shyam Shetty and another vs. Rajendra Shankar Patil 1 , has deprecated the practice of this Court in entertaining the writ petitions, arising out of property disputes under Art. 227 of the Constitution of India and deciding the same as if they are decisions which are given in appeal after appreciating the documentary and oral evidence on record. The Apex Court has observed that jurisdiction of this court under Art. 227 is very limited and the said jurisdiction has to be exercised only for the purpose of superintendence of the subordinate courts and to ensure that the said courts act within the jurisdiction which is conferred on them. It is also observed that if a particular view is taken by the lower courts, the High Court while exercising its jurisdiction under Art. 227 is not expected to substitute its own view as if it is acting as a court of appeal and take a different view. 1 2010(6) Mh.L.J. 661 WP. 1691-94 - 16 - 5. It will be profitable to reproduce the exact wording of the Supreme Court in the two judgments. The Apex Court in the case of - Surya Dev Rai, Appellant vs. Ram Chander Rai & Ors, Respondents [(2003) 6 Supreme Court Cases 675] has laid down the guidelines as to the circumstances under which High Courts should exercise the writ jurisdiction under Art. 227 of the Constitution of India, as under- “12. In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a Court which has jurisdiction over a subject-matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an Appellate Court and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court. ... 38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:- (1) ... ... (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross WP. 1691-94 - 17 - failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.” 6. Similarly in the case of Shalini Shyam Shetty (supra), the Apex Court has observed as under- WP. 1691-94 - 18 - “38. The history of this power has been elaborately traced by a Division Bench of Calcutta High Court in the case of Jahnabi Prosad Banerjee and another vs. Basudeb Paul & others, reported in AIR 1950 Calcutta 536 and that was followed in a Division Bench Judgment of Allahabad High Court in Sukhdeo Baiswar vs. Brij Bhushan Misra and others in AIR 1951 Allahabad 667. 39. The history of Article 227 has also been traced by this Court in its Constitutional Bench judgment in Waryam Singh and another vs. Amarnath and another, AIR 1954 SC 215. In paragraph 13 at page 217 of the report this Court observed: "...The only question raised is as to the nature of the power of superintendence conferred by the article". ..... 50. Same principles have been followed by this Court in the case of Mani Nariman Daruwala @ Bharucha (deceased) through Lrs. & others vs. Phiroz N. Bhatena and others etc. reported in (1991) 3 SCC 141, wherein it has been held that in exercise of its jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior Court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the Court or tribunal has come to this Court made it clear that except to this `limited extent' the High Court has no jurisdiction to interfere with the findings of fact (see para 18, WP. 1691-94 - 19 - page 149-150). .... 62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the WP. 1691-94 - 20 - exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of WP. 1691-94 - 21 - justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. WP. 1691-94 - 22 - (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual