Case: Gulshera Khanam Vs. Aftab Ahmad

first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.”34) Coming now to the facts of this case, keeping in view the principle of law laid down in the aforementioned case and on perusal of the order of the Prescribed Authority/Civil Judge and the first appellate court, we find that both the courts properly appreciated the facts and evidence adduced by the parties and on that basis recorded all necessary findings (detailed above) in favour of the appellant and granted decree of eviction against the respondent. This the Prescribed Authority/Civil Judge and the first appellate court could do in their respective jurisdiction and, in our opinion, both the courts rightly did it in the facts of this case.35) Likewise, when we peruse the impugned judgment, we find, as rightly urged by the learned counsel for the appellant, the High Court did not keep in mind the aforesaid principle of law laid down by the Constitution Bench in Hindustan Petroleum Corpn. Ltd. (supra) so also the principle laid down by this Court in relation to exercise of jurisdiction under Article 227 of Constitution of India in the case of Surya Dev Rai vs. Ram Chander Rai & Ors., (2003) 6 SCC 675 while deciding the writ petition and proceeded to decide like the first appellate court. The High Court as is clear from the judgment probed all factual aspects of the case, appreciated evidence and then reversed the factual findings of the appellate court and the Prescribed Authority. This, in our view, was a jurisdictional error, which the High Court committed while deciding the writ petition. In other words, the High Court, in our view, should have confined its inquiry to examine as to whether any jurisdictional error was committed by the first appellate court while deciding the first appeal. It was, however, not done.36) In our considered opinion, the question in relation to the bona fide need of the appellants daughter to expand the activities of running the clinic was rightly held by the Prescribed Authority and the first appellate Court in appellant’s favour by holding the appellant’s need to be bona fide and genuine. We find no ground on which the High Court could have upset the concurrent finding on this question in its writ jurisdiction under Article 227, which is more or less akin to revisional jurisdiction of the High Court. The High Court also failed to hold that finding of the two courts were so perverse to the extent that any judicial person could ever reach to such conclusion or that the findings were against any provision of law or were contrary to evidence adduced etc.37) The High Court, in our view, should have seen, as was rightly held by the two courts below, that the appellants daughter had been running her medical clinic in shop No. 7 for quite some time. This fact was not in dispute. Though a feeble attempt was made by the respondent contending that after appellants daughters marriage, she has started living in Moradabad and, therefore, her need to run the clinic and expand its activity is not bona fide but this plea did not find favour with Prescribed Authority and the first appellate Court and, in our view, this being a pure finding of fact, was binding on the High Court in its writ jurisdiction.38) In our considered opinion, the appellants need for additional space for the expansion of clinic activities for her daughter cannot be said to be unjust or unreasonable in any manner. It is for the reasons that, firstly, the suit shop No.6 is adjacent to Shop No. 7 and secondly, the need for expansion of clinic could be accomplished effectively only with the use of two shops, which are adjacent to each other. It is a well settled principle laid down by this Court in rent matters that the landlord is the sole judge to decide as to how much space is needed for him/her to start or expand any of his/her activity. This principle was overlooked by the High Court while deciding the issue of need. That apart, the High Court should have also seen that the two courts below have recorded a finding that the respondent was having his own shops in the same area where he could shift his existing business activity without suffering any comparative hardship.39) In the light of aforementioned factual findings of the courts below, in our view, there was no justification on the part of the High Court to have probed into any factual issues again in depth by undertaking appreciation of evidence like a first appellate court and reversed the findings.40) In view of foregoing discussion, we are unable to agree with the reasoning and the conclusion arrived at by the High Court. The impugned judgment is, therefore, not legally sustainable and is accordingly set aside. As a result, the order dated 04.03.1999 of Prescribed Authority in U.P.U.B. No. 13/1994 and order dated 24.08.2011 of the Additional District Judge, Aligarh in U.P.U.B. Appeal No. 7/99 are restored. The respondent is, however, granted three months’ time to vacate the suit shop from the date of this order subject to furnishing of the usual undertaking in this Court to vacate the suit premises within 3 months and further, the respondent would in addition to the directions given by the Prescribed Authority also deposit all arrears of rent till date at the same rate at which he had been paying monthly rent to the appellant (if there are arrears) and would also deposit three months’ rent in advance by way of damages for use and occupation as permitted by this Court. Let the undertaking, arrears of rent, damages for three months and compliance of direction to deposit damages by Prescribed Authority and the cost awarded by this Court be deposited within one month from the date of this order.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]30) Dr. Naheed Parveen being the daughter, accordingly, received her share and became co-owner of the building along with other co-sharers. Being a co-owner, she got a legal right of residence in the building as provided under Section 3(g) of the Act. In this way, she fulfilled the definition ofunder Section 3 (g) of theare unable to agree with the reasoning of the High Court and while reversing the finding answer the second question in appellants favour and accordingly hold that the appellant was entitled to claim eviction of the respondent from the building in question for the need of her daughter Dr. Naheed Parveen for running her clinic as the daughter was having a legal right of residence in the building inIn our considered opinion, the question in relation to the bona fide need of the appellants daughter to expand the activities of running the clinic was rightly held by the Prescribed Authority and the first appellate Court infavour by holding theneed to be bona fide and genuine. We find no ground on which the High Court could have upset the concurrent finding on this question in its writ jurisdiction under Article 227, which is more or less akin to revisional jurisdiction of the High Court. The High Court also failed to hold that finding of the two courts were so perverse to the extent that any judicial person could ever reach to such conclusion or that the findings were against any provision of law or were contrary to evidence adduced etc.37) The High Court, in our view, should have seen, as was rightly held by the two courts below, that the appellants daughter had been running her medical clinic in shop No. 7 for quite some time. This fact was not in dispute. Though a feeble attempt was made by the respondent contending that after appellants daughters marriage, she has started living in Moradabad and, therefore, her need to run the clinic and expand its activity is not bona fide but this plea did not find favour with Prescribed Authority and the first appellate Court and, in our view, this being a pure finding of fact, was binding on the High Court in its writ jurisdiction.38) In our considered opinion, the appellants need for additional space for the expansion of clinic activities for her daughter cannot be said to be unjust or unreasonable in any manner. It is for the reasons that, firstly, the suit shop No.6 is adjacent to Shop No. 7 and secondly, the need for expansion of clinic could be accomplished effectively only with the use of two shops, which are adjacent to each other. It is a well settled principle laid down by this Court in rent matters that the landlord is the sole judge to decide as to how much space is needed for him/her to start or expand any of his/her activity. This principle was overlooked by the High Court while deciding the issue of need. That apart, the High Court should have also seen that the two courts below have recorded a finding that the respondent was having his own shops in the same area where he could shift his existing business activity without suffering any comparativeour view, there was no justification on the part of the High Court to have probed into any factual issues again in depth by undertaking appreciation of evidence like a first appellate court and reversed the findings.40) In view of foregoing discussion, we are unable to agree with the reasoning and the conclusion arrived at by the High Court. The impugned judgment is, therefore, not legally sustainable and is accordingly set aside. As a result, the order dated 04.03.1999 of Prescribed Authority in U.P.U.B. No. 13/1994 and order dated 24.08.2011 of the Additional District Judge, Aligarh in U.P.U.B. Appeal No. 7/99 are restored. The respondent is, however, granted threetime to vacate the suit shop from the date of this order subject to furnishing of the usual undertaking in this Court to vacate the suit premises within 3 months and further, the respondent would in addition to the directions given by the Prescribed Authority also deposit all arrears of rent till date at the same rate at which he had been paying monthly rent to the appellant (if there are arrears) and would also deposit threerent in advance by way of damages for use and occupation as permitted by this Court. Let the undertaking, arrears of rent, damages for three months and compliance of direction to deposit damages by Prescribed Authority and the cost awarded by this Court be deposited within one month from the date of this