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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1525 OF 2017

ARISING OUT OF

SPECIAL LEAVE PETITION (CIVIL) NO. 4516 OF 2015

AMBADAS KHANDUJI SHINDE & ORS. … APPELLANTS

VERSUS

ASHOK SADASHIV MAMURKAR & ORS. … RESPONDENTS

ORDER

N.V. RAMANA, J.

Leave granted.

2. The appellants herein who are landlords have

approached this Court aggrieved by the impugned order

dated 22

nd

September, 2014 passed in Civil Revision

Application No. 50 of 2013 by the High Court of

Judicature at Bombay, Nagpur Bench, Nagpur wherein

and whereby the learned Judge has allowed the

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Revision by setting aside the judgment and decree

passed by the Courts below.

3. The facts of the case in nutshell are that

the appellants/landlords filed Small Cause Civil Suit

No. 47 of 2005 on the file of the 5

th

Joint Civil

Judge, Junior Division, Amravati seeking recovery of

possession on the ground of bona fide requirement,

change in usage of premises, willful default and

further sought the relief of mesne profits.

4. It is stated in the plaint that the suit

schedule premises bearing new Municipal House No.

187/3 in Ward No. 37 on the ground floor, which is

part of three storied building, is owned by the

plaintiffs. The defendants’ father originally

occupied the property on a monthly rent of Rs.200/-

for carrying on the business of Dahi (curd), which

was let out to him by the mother of 1

st

plaintiff and

grandmother of plaintiff Nos. 2 to 4. After the death

of defendants’ father, they have changed the nature

of the business and started a travel agency without

the prior permission of landlords/owners. The tenants

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are chronic defaulters who failed to pay the rent

from January 2001 to April 2005. In spite of receipt

of the notice from the landlords, they failed to pay

the rents. In respect of bona fide requirement, it is

stated that as plaintiff Nos. 3 & 4 are unemployed

and are in need of money for maintaining their

family, hence they wanted to start kirana business as

such they required the suit schedule property which

is suitable for the business. The plaintiff No. 2 in

the month of December 2005 started shop of Goli

biscuits & Snacks in another shop of 4 x 10 ft.

vacated by the tenant. It is stated by the plaintiffs

that defendants own and possess two storied

residential building having two shop premises wherein

one shop is lying vacant. They also owned three

luxury buses. Defendants being potential persons do

not require this premises but whereas the plaintiffs

are in dire need of the premises and balance of

convenience is in their favour and if the premises is

not vacated it would cause great hardship.

5. In response to this, the defendants filed

their written statement stating that the property was

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let out by the plaintiffs’ mother to defendants’

father in 1979 for business purpose but not

specifically to run the curd shop and right from 1999

they are running travel agency as such the permission

of the landlord is not required. With regard to

willful default it is stated that they are not in

arrears and in fact till 2007 in advance they have

paid the rents to the mother of the plaintiffs as she

was in need of money. It is admitted by the

defendants that they own a big complex but they state

that it is a residential complex and in fact there is

no bona fide requirement of the premises for the

landlords but in fact landlords intend to sell the

property. It is their further case that they

purchased the buses by taking loans and are in severe

financial hardship. It is stated by the defendants

that the plaintiffs’ main source of income is rents.

It is further stated that the plaintiffs have sold

the shop in ground floor premises measuring about 7’

x 15” vide sale deed dated 30-09-2004 and another

ground floor shop measuring 257 sq.ft. by sale deed

dated 13

th

May, 2005 and another room by sale deed

dated 29-05-1995. It is also stated that the

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plaintiffs are running Pathela on the Nazul land for

which Corporation has issued notices to remove the

same.

6. The trial Court framed eight issues for

adjudication and after a full fledged trial, in

response to the issue of willful default held that

the rents were paid to the mother of plaintiffs and

there was no willful default and the issue is held

against the plaintiffs. The second ground raised by

the plaintiffs i.e. change of nature of business was

also negatived. But on the aspect of bona fide

requirement, Court has come to a definite conclusion

that the requirement of the plaintiffs is bona fide

to run the kirana business as plaintiffs 3 & 4 are

unemployed. The Court also observed that the

defendants could not discharge the burden cast upon

them in this regard. They could not establish that it

is the intention of the landlord to sell away the

suit schedule property. Hence the trial Court has

concluded that even balance of convenience is also in

favour of the plaintiffs and accordingly decreed the

suit.

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7. Aggrieved by the same, the

respondents/tenants carried the matter by way of

appeal to the District Court and the District Court

remanded the matter to the trial Court to try it as a

regular civil suit. Later the same was numbered as

Regular Civil Suit No. 47 of 2005 for ejection and

possession and the Court decreed the suit on the same

findings as were recorded before remand.

8. Then the judgment and decree was carried in

appeal by the tenant and the same was numbered as

Regular Civil Appeal No. 104 of 2011 on the file of

the Ld. District Judge, Amravati and after hearing

the parties and going through the record, the

appellate court confirmed the findings of the trial

Court and dismissed the appeal with costs by judgment

and decree dated 9-6-2011. The appellate court, after

dealing with each and every issue, has agreed with

the findings of the trial Court in toto.

9. Then the matter was carried on to the High

Court by way of Civil Revision Application No. 50 of

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2013. The learned judge allowed the Civil Revision

Petition which is impugned before us.

10. We have heard the learned counsel on either

side and perused the material placed before us. We

are inclined to interfere with the order of the High

Court on two aspects. One is the reasoning given by

the learned Judge while allowing the revision lacked

merit and secondly the order passed by the learned

Judge is beyond its jurisdiction conferred under

Section 115 of the Civil Procedure Code.

11. Having elucidated above the analysis of the

evidence on record both by the trial Court and by the

District Court, we find substance in the contention

of the appellants that the High Court had no valid

reason or justification to interfere with the

concurrent findings in the exercise of its revisional

jurisdiction. The sale of two shops by the landlords

on 24 September 2004 and 13 May 2005 was admittedly

to existing tenants in occupation of the shops. This

is not a case where the landlord has obtained vacant

possession of shops which were earlier given on rent

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and thereafter sold them as vacant units to a third

party in an arms-length transaction. The fact that

the sale by the landlord was to existing tenants is

an important circumstance which supports the finding

of the trial Court that in such a situation, the sale

would be by reason of financial need or in compelling

circumstances. This view of the trial Court, which

was affirmed by the District Court, cannot be

regarded as perverse or based on no evidence, as the

High Court held.

12. Moreover, there is a manifest error on the

part of the High Court in holding that the landlords

failed to explain the circumstances in which they

obtained vacant possession of one shop on 19 July

2005 or on how it was being utilized. We have, in

the earlier part of this judgment, extracted the

findings of the trial Court and the first appellate

Court, which indicate that in the shop of which

vacant possession was obtained, a provision store is

being conducted jointly. In this background, it was

found that the need felt by the father as head of the

family that his sons should be settled in independent

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businesses was genuine. The co-owners cannot be

compelled to carry on business jointly since they are

the best judges of their need. The High Court has

overlooked these findings and has arrived at a

patently erroneous conclusion that there was no

explanation from the landlords of the manner in which

the shop which had fallen vacant was being utilized.

There was in fact an explanation. Each of the

reasons which weighed with the High Court in

reversing the concurrent findings were hence

specious.

13. Apart from the factual aspect, order lacks

merit on the ground of jurisdiction. The High Court

cannot interfere with the concurrent factual findings

while exercising jurisdiction under Section 115 of

the Civil Procedure Code. It is settled law that

revisional jurisdiction of the High Court is

restricted to cases of illegal or irregular exercise

of jurisdiction by the subordinate Courts. Under

Section 115 of the Civil Procedure Code, it is not

open for the High Court to correct errors of facts or

law unless they go to root of the issue of

jurisdiction. In the facts on hand, the Courts below

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have passed reasoned orders well within the

jurisdiction conferred upon them. We arrive at the

conclusion that the High Court committed error in

interfering with the judgment and decree of the trial

Court.

14. In view of the above discussion, the order of

the High Court is set aside and consequently the

appeal stands allowed. However, in view of the fact

that the defendants/respondents are running business

in the premises right from 1979, we deem it

appropriate to grant six months time to vacate the

premises, subject to the filing of usual undertaking

to handover possession of the shop to the appellants

accordingly.

……………………………………………………… CJI.

(JAGDISH SINGH KHEHAR)

…………………………………………………………… J.

(N.V. RAMANA)

…………………………………………………………… J.

(Dr. D.Y. CHANDRACHUD)

NEW DELHI,

JANUARY 31, 2017.

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