1 (WP2932.99) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2932 OF 1999 Dattatraya Savlaram Ghadigaonkar ) since deceased through his legal heirs ) 1 Smt. Savita Dattatraya Ghadigaonkar) 2 Shri Nitin Dattatraya Ghadigaonkar ) 3 Shri Nilesh Dattatraya Ghadigaonkar ) All residing at Dadabhai Building ) No.2/15, 1st floor, N. M. Joshi Marg, ) Mumbai – 400 013 ) 4 Mrs Leena Amol Ghadigaonkar ) R-1/18, Govardhangiri CHS Ltd., ) Bhangur Nagar, Goregaon (W), ) Bombay – 400090 ) ...Petitioners V/s Satyapal Uttamchand Chaudhary ) since deceased through his legal heirs ) 1A – Vivek Satyapal Chaudhary ) 1B- Smt. Sushma Satyapal Chaudhary ) .... Respondents. Shri R.A. Thorat with Mr. P.J. Thorat i/b Smt. Pranali Kakade for the Petitioners. 2 (WP2932.99) Shri A.V. Anturkar, Senior Counsel i/b Shri S.V. Sadavarte for the Respondents. CORAM: V. M. KANADE, J. DATE : 29th June, 2011. ORAL JUDGMENT: 1. Petitioner is the original Defendant/tenant and Respondent is the original Plaintiff/landlord. For the sake of convenience, parties shall be referred to “landlord” and “tenant”. 2. A suit was filed by landlord for eviction of tenant from the suit premises on various grounds which were available to him under sections 12 and 13 of the Bombay Rent Act. It was contended by the landlord that the rent of the first floor was Rs 413.70 ps, rent of the second floor was Rs 385.71 ps, rent of the terrace was Rs 195/- and the entire monthly rent was to the tune of Rs 994.41 ps. It was contended, firstly, that the tenant did not pay the rent in respect of the suit premises in spite of repeated demands made by the 3 (WP2932.99) landlord. Secondly, it was contended that the tenant had carried out alterations and additions of permanent nature without permission of the landlord. It was contended that the tenant had constructed 10 moris in the suit premises. It was contended that the tenant had constructed permanent passage joining the adjoining building. It was contended that two iron gates were also constructed. According to the landlord, tenant did not obtain sanction of the BMC in respect of the said constructions. Thirdly, it was contended that the premises were required reasonably and for bona fide for himself. Fourthly, it was contended that the tenant caused nuisance to the other tenants and occupants and used to threaten the landlord when the landlord used to collect the rent. Lastly, it was contended that th suit premises were not used in a proper manner and, therefore, tenant had committed breach of section 108(o) of the Transfer of Property Act. 3. The notice of demand and termination of tenancy was sent to the tenant by RPAD and one copy was sent under Certificate of Posting and the third copy was pasted on the 4 (WP2932.99) suit premises and, therefore, the tenancy was properly and validly terminated. It was contended that the tenant had not raised any dispute about the standard rent and, therefore, he was not entitled to get protection under section 12(3)(b). 4. The tenant filed his Written Statement and denied the allegations of the landlord as alleged in the plaint. It was firstly contended that the landlord had ceased to be the owner of the suit premises. Secondly, it was contended that the property was under attachment by the BMC and, therefore, the landlord had no right to recover possession or recover the arrears of rent. It was then contended that contractual rent had not been ascertained and determined between the parties. It was contended that demand notice was not received by him. The allegations of unauthorized construction of a permanent nature also was denied. It was contended that so far as moris and construction of iron gates is concerned, this was done with the consent of the landlord and the tenant was entitled to recover the said amount from the landlord. The allegation of nuisance also was denied. The tenant also filed his additional written statement in 5 (WP2932.99) which he contended that he had not constructed a permanent passage adjoining the two buildings. It was contended that this passage was constructed by the landlord. Both, the landlord and the tenant, led oral as well as documentary evidence. Trial Court, however, dismissed the suit. Against this order, the landlord preferred an appeal before the District Court. The lower Appellate Court allowed the appeal and decreed the suit. Being aggrieved by the judgment and order passed by the lower Appellate Court, tenant/original Defendant has preferred this Petition under Article 227 of the Constitution of India. 5. It was contended by Shri Thorat, the learned Counsel appearing on behalf of the tenant/Defendant, that the lower Appellate Court had erred in holding that the tenant/Defendant had carried out permanent construction without consent of the landlord. He submitted that construction of moris, wooden passage and two iron gates did not amount to construction of permanent nature. The tenant/Defendant was not liable to be evicted under the provisions of section 13(1)(b). It was submitted that 6 (WP2932.99) construction of moris in the suit premises had been held by various decisions of this Court as not amounting to permanent construction and, in fact, it has been held to be essential for the beneficial enjoyment of the suit premises. Secondly, it was contended that the construction of wooden passage supported by beams would not amount to construction of a permanent nature and the same could be removed without causing any damage to the property. Thirdly, it was submitted that putting up of iron gates in the passage leading to suit premises also would not amount to construction of a permanent nature. It was submitted that no finding was given by the lower Appellate Court that this construction was of a permanent nature and, therefore, the landlord was not entitled to get possession of the suit premises under section 13(1)(b) of the said Act. Reliance was placed on the judgment of the Apex Court in Brijendra Nath Bhargava vs Shri Harsh Wardhan1(para 12) and also another judgment of this Court in The Pune Art Industries vs Narayan Kashinath Date2 (para 8). 1 AIR 1988 SC 293 2 1994(3) Bom.C.R.68 7 (WP2932.99) 6. So far as the ground of nuisance is concerned, it was contended by the learned Counsel appearing on behalf of the tenant/Defendant that the only averments regarding nuisance were found in para 12 of the plaint and it was stated that the tenant was causing nuisance to tenants and occupants by abusing the tenants and rent collector. It was contended that, admittedly, there was no conviction of the tenant as required under section 13(1)(c) and the only factor which the Court had to consider was : whether conduct of the tenant was causing nuisance or annoyance to the neighbours and adjoining occupiers. It was submitted that there was no proof, either documentary or oral regarding sale of illicit liquor, murder or selling adulterated liquor. It was submitted that none of the occupants was examined. Similarly, no documents were produced on record to show that the tenant had been convicted for the allege acts. Reliance was placed on the judgment in Caitan D’Souza vs. Miss Jerbai S.C. Dinshaw1. It was further contended that the lower Appellate Court also had erred in coming to the conclusion that the acts were contrary to the provisions of 1 B.L.R. Vol.LXXIII 418 8 (WP2932.99) section 108(o) and 13(1)(a) of the Bombay Rent Act. It was submitted that the lower Appellate Court had erred in holding that running of social club by the tenant in the suit premises amounts to nuisance and annoyance. 7. It was submitted by the learned Counsel for the tenant/Defendant that so far as arrears of rent and service of notice under section 12 of the Bombay Rent Act is concerned, the lower Appellate Court had erred in holding that the notice was served. It was submitted that the lower Appellate Court had erred in holding that pasting of notice of demand by the landlord/plaintiff was proper service and it had been proved by the landlord/plaintiff. It was submitted that service of notice by RPAD or UPC was not proved by the landlord/plaintiff. It was submitted that notice of demand could be served by pasting the same only if it could be shown that service of notice by other modes such as by posting or by tendering is not practicable. Reliance was placed on the judgment in Ramavtar Ramasahaya Khatod vs. Baban Gurunath Pathari1(para 7) and in Parvatibai Maruti 1 2005(1) Bom.C.R. 255 9 (WP2932.99) Hande vs Satish Mohanram Prajapati1 (para 8). It was submitted that the landlord/plaintiff was holding an amount of Rs 85,000/- which was paid by the tenant as construction loan and this could be adjusted towards the arrears of rent and, therefore, there was no outstanding amount which was to be paid by the tenant on the date when alleged notice of demand was served. Reliance was placed on the judgment of the Apex Court in Mohd. Salimuddin vs. Misri Lal and another2 (para 4) and in Modern Hotel, Gudur, represented by M.N. Narayanan vs. K. Radhakrishnaiah and others3 (para 10). 8. So far as the ground of bonafide requirement is concerned, it was submitted by the learned Counsel for tenant/Defendant that, in plaint, the only averment which was made was that the landlord/plaintiff required the premises reasonably and bona fide for himself and no particulars about his requirement were mentioned in the said plaint and, therefore, the evidence which was produced beyond the pleadings was required to be discarded. 1 2002 (Supp.) Bom.C.R. 522 2 (1986) 2 SCC 378 3 (1989) 2 SCC 686 10 (WP2932.99) Reliance was placed on the judgment in Sonubai w/o Krishnaji Pol vs Yellawa S. Doddamani1. It was further submitted that the Trial Court also had taken into consideration that 12 rooms were being made available to the landlord but he failed to start or commence any business. It created doubt in respect of his requirement. This fact was not considered by the lower Appellate Court. On the question of hardship, it was contended that the lower Appellate Court had committed an error of law in not considering the provisions of section 13(2) in its proper perspective. It was submitted that without giving any reasons, the lower Appellate Court had observed that balance of comparative hardship was in favour of the landlord. It was further submitted that assuming that the bona fide requirement was established, the Court was required to take into consideration whether partial decree for eviction could be passed while taking into consideration the hardship caused to the parties under section 13(2) of the Bombay Rent Act. Reliance was placed upon the decision in Rehman Jeo Wangnoo vs. Ram Chand and others2(para 2) 1 1994 Bom.R.C. 397 2 (1978) 3 SCC 539 11 (WP2932.99) and in Badrinarayan Chunilal Bhutada vs. Govindram Ramgopal Mundada1(Paras 8 to 10). 9. Shri Anturkar, the learned Counsel appearing on behalf of the landlord/plaintiff, on the other hand, submitted that this Court has limited jurisdiction while exercising its power under Article 227 of the Constitution of India. He relied upon the judgment of the Apex Court in Shalini Shyam Shetty & Anr vs Rajendra Shankar Patil2 and in Surya Dev Rai vs. Ram Chander Rai & Ors3. He submitted that the lower Appellate Court had not committed any error of law apparent on the face of record and that it had taken into consideration all over documentary and oral evidence on record and had given cogent reasons while recording a finding in favour of the landlord/plaintiff and against the tenant/Defendant. He submitted that, therefore, no case was made out for interfering with the finding of fact recorded by the lower Appellate Court. 1 (2003) 2 SCC 320 2 2010(6) Mh.L.J.661 3 (2003) 6 SCC 675 12 (WP2932.99) 10. Shri Anturkar, learned Counsel for the landlord/plaintiff further submitted that so far as the ground of permanent construction under section 13(1)(b) is concerned, the lower Appellate Court had given a finding that the construction was of a permanent nature and, for that purpose, had relied on oral and documentary evidence on record. He submitted that the lower Appellate Court had taken into consideration admissions which were given by the tenant and had also taken into consideration the nature of permanent construction. He invited my attention to the evidence of tenant at page 197, particularly the admission given by the tenant in his cross-examination. He also invited my attention to the evidence of P.W.1 – Satyapal Uttamchand Chaudhary at page 60 (para 5), page 63 (11th line from the bottom), page 69 where reference is made regarding iron gate and page 71 (para 15). He also invited my attention to cross-examination of P.W.1 at page 140 (para 35), page 176 (para 63), page 178 (para 67), page 186 (para 13). He also invited my attention to evidence of D.W.1 – Dattatraya Ghadigaonkar at page 189 (para 18). He also invited my attention to the judgment of the lower Appellate Court at 13 (WP2932.99) page 533 (para 64), page 539 (para 70), page 543 (para 76) and page 546 (para 79). He also invited my attention to the photographs which were exhibited in the Trial court for the purpose of showing the nature of construction which was made by the tenant/Defendant. It was, therefore, submitted that case of permanent construction had been established by the landlord/plaintiff and the order passed by the lower Appellate Court is required to be confirmed by this Court. 11. Shri Anturkar the learned Counsel appearing on behalf of the landlord/plaintiff next submitted that so far as the ground of nuisance is concerned, the lower Appellate Court had considered the evidence on record in detail and had appreciated the evidence and had rightly held that nuisance was established. He invited my attention to the observations made by the lower Appellate Court on this point at pages 551 to 556 (para 86 at page 551). So far as the question of service of demand notice is concerned, it was submitted that the lower Appellate Court has given a finding that notice had been properly served by pasting and this being a finding of 14 (WP2932.99) fact, no interference was called for by this Court. So far as the ground of bona fide requirement is concerned, it was submitted that mere absence of plea is not ground to non- suit the landlord/plaintiff. He submitted that, the landlord adduced sufficient evidence for the purpose of establishing his bona fide and genuine requirement. Lastly, it was submitted that so far as the contention of the tenant/Defendant regarding non-consideration of partial decree being passed under section 13(2) is concerned, the said submission was never made before the lower Appellate Court and, therefore, the lower Appellate Court had no occasion to consider that aspect. 12. After having heard the learned Counsel appearing on behalf of the Petitioner and and Respondent at length, in my view, no case is made out by the Petitioner for interfering with the well reasoned order passed by the lower Appellate Court while exercising limited jurisdiction of this Court under Article 227 of the Constitution of India. 13. Before I consider the rival submissions, it would be 15 (WP2932.99) relevant to take into consideration the power and jurisdiction of this Court under Article 227 of the Constitution of India. 14. The Apex Court in its judgment in Shama Prashant Raje vs. Ganpatrao and others1 has observed in para 5 as under:- “5. In view of the rival submissions we have carefully scrutinised the orders of the Controller, that of the appellate authority under the Control Order and the order of the learned Single Judge which has been affirmed by the Division Bench. Undoubtedly, in a proceeding under Articles 226 and 227 of the Constitution the High Court cannot sit in appeal over the findings recorded by a competent tribunal. The jurisdiction of the High Court, therefore, is supervisory and not appellate. Consequently, Article 226 is not intended to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or order to be made. But 1 (2000) 7 SCC 522 16 (WP2932.99) notwithstanding the same, on a mere perusal of the order of an inferior tribunal if the High Court comes to a conclusion that such tribunal has committed manifest error by misconstruing certain documents, or the High Court comes to the conclusion that on the materials it is not possible for a reasonable man to come to a conclusion arrived at by the inferior tribunal or the inferior tribunal has ignored to take into consideration certain relevant materials or has taken into consideration certain materials which are not admissible, then the High Court will be fully justified in interfering with the findings of the inferior tribunal.” Similarly, the Apex Court in Surya Dev Rai vs. Ram Chander Rai & Ors1 in para 38 has observed as under:- “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 1 (2003) 6 SCC 675 17 (WP2932.99) same as hereunder:- (1) ... (2) .... (3) .... (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (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 (ii) a grave injustice or gross failure of justice has occasioned 18 (WP2932.99) 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 the 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 19 (WP2932.99) 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 convert 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. (9).........................” In the recent judgment, the Apex Court has again taken into consideration various earlier judgments of the Apex Court and has reiterated that the High Court, while exercising its power under Article 227 of the Constitution of India, should not ordinarily interfere with the finding of fact recorded by the lower Courts, unless there is a clear error of law apparent on the face of record or the finding is perverse. The Apex Court has observed in Shalini Shyam Shetty & anr vs. Rajendra Shankar Patil1 in para 62 as under:- 1 2011(2) Bom.C.R.242 20 (WP2932.99) “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 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 21 (WP2932.99) 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 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. 22 (WP2932.99) (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