WP. 4808-94 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 4808 OF 1994 Veljibhai J. Thakkar (since deceased ) represented through LR) ) Vasant Damodar Thakker, Adult, ) residing at Bhiwandi, District Thane, ) being one of the Managing Trustee of ) Mohanlal Ramchandraji Mandir, ) Bhiwandi Thane ...Petitioner Vs. Smt. Sudhaben Suryakant Shah, Adult, ) Occu.- Household, residing at Mun. House ) No. 36, Brahmin Ali, Bhiwandi, ) District Thane ...Respondent *** Mr. Piyush N. Shah, for the Petitioner. Mr. S. M. Kamble i/b A. P. Mundargi, for the Respondent. *** CORAM: V. M. KANADE J. DATE : MARCH 28, 2011 ORAL JUDGMENT 1. Heard the learned counsel appearing on behalf of the WP. 4808-94 - 2 - petitioner and the respondent. Petitioner is the original owner of the suit premises, who had filed a suit for eviction of the respondent/tenant on various grounds. The trial Court dismissed the suit and an appeal preferred by the appellant was also dismissed. The petitioner has preferred this petition, challenging the said orders passed by both the Courts below. 2. The learned counsel for the petitioner submits that he would like to restrict his submission only to the ground of arrears of rent and he would not press the other grounds on which a decree for eviction was sought to be raised by the plaintiff in the trial Court. It is submitted that in the present case statutory notice demanding arrears of rent of 43 months, was issued on 1st February, 1984. After service of demand notice, an application was filed by the respondent/tenant for fixation of standard rent on 28-2-1984 within one month from the date of receipt of demand notice. The respondent also filed an application for fixation of interim standard rent. The trial Court, however, directed that the application for standard rent should be heard along with the main suit. During pendency of the suit, the respondent/tenant deposited the rent in the Court for the period from 1-6-1980 to 31-8-1984 and from 1-9-1984 to 31-12-1986 and further till decision of the suit. The learned counsel WP. 4808-94 - 3 - appearing on behalf of the petitioner invited my attention to the Explanation-I to Section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the “Bombay Rent Act”) and submitted that filing of an application for fixation of standard rent was not sufficient in order to get out from the clutches of Section 12(3)(a) of the Bombay Rent Act. He submitted that in the present case tenant/respondent had not deposited the amount after filing an application for standard rent. It is submitted that the duty of obtaining an order from the Court for depositing the said amount was on the tenant. The learned counsel further submitted that the tenant having failed in his legal obligation to deposit the said amount, was not entitled to get the protection under Section 12(3)(b) of the Bombay Rent Act. 3. Said submission advanced by the learned counsel for the petitioner cannot be accepted. Both the Courts below have given concurrent finding of fact and have pointed out that tenant had deposited the amount which was due and payable during pendency of the suit, including the permitted increases. Both the Courts below have observed that though rent demanded by the landlord was Rs.18/- per month, the standard rent which was fixed at the hearing of the suit was Rs.5/- and the tenant had in fact deposited more amount than was required to be WP. 4808-94 - 4 - paid. Both the Courts below have therefore, held that under these circumstances, it could not be said that the tenant was a defaulter under Section 12(3)(a) of the Bombay Rent Act and even otherwise entitled to get protection under Section 12(3)(b) of the Bombay Rent Act since he had within one month from the date of receipt of the notice paid the amount which was in excess of the amount demanded. Hence, it is not possible to interfere with the concurrent finding of fact, recorded by both the Courts below. 4. 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 parameters while exercising powers vested under Art. 227 of the Constitution of India. The Apex Court has observed in paragraph 12 & 38 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. WP. 4808-94 - 5 - ... 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 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 WP. 4808-94 - 6 - 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.” 5. The Apex Court in the case of - Shalini Shyam Shetty and another vs. Rajendra Shankar Patil [2010(6) Mh. L. J.] has further given some guidelines in the case of powers under Art. 227 of the Constitution. The Apex Court has observed that the power vested in the High Courts WP. 4808-94 - 7 - under Art. 227 of the Constitution is in the nature of supervisory jurisdiction and the High Court should not normally exercise this jurisdiction unless it finds that lower Courts have committed a patent error of law which is apparent from the face of the record. Keeping in view the ratio of the judgment laid down by the Court, in my view no case is made out for interfering with the judgment and order or both Courts below. Hence, writ petition is dismissed. [ V. M. KANADE J.]