Venkatlal
G. Pittie & ANR Vs. Bright Bros. (Pvt.) Ltd. [1987] INSC 181 (21 July 1987)
MUKHARJI,
SABYASACHI (J) MUKHARJI, SABYASACHI (J) NATRAJAN, S. (J)
CITATION:
1987 AIR 1939 1987 SCR (3) 593 1987 SCC (3) 558 JT 1987 (3) 139 1987 SCALE
(2)115
CITATOR
INFO : RF 1988 SC 184 (13) D 1988 SC 293 (12) RF 1989 SC1642 (36)
ACT:
Constitution
of India--Art. 227--Scope of interference by High Court with regard to findings
of facts by lower courts and inferior tribunals.
Transfer
of Property Act, 1882--Cl.(P) of s. 108--The question whether a structure put
up by a tenant is a permanent one or not depends upon the facts of each case
and no hard and fast rule can be laid down.
HEADNOTE:
The
appellants, who had let out the premises in question to the respondent Riled a
suit for eviction inter alia on the ground that the tenant had erected
unauthorised structures of a permanent nature in violation of the provisions of
cl. (p) of s. 108 of the Transfer of Property Act, 1882 and s. 13(1)(b) of the
Bombay Rents. Hotel and Lodging House Rates Control Act, 1974 and was using the
premises for unauthorised purposes. The alleged permanent structures consisted
of lofts and rooms which had been constructed by sinking pillars and stanchions
into the flooring and the tenant admitted that these had been constructed after
it had taken the premises from the landlord. After discussing the evidence
tendered in detail, including the deposition of the architect who had prepared
the plan of the constructions in question and who had deposed that the
constructions consisted of permanent structures, the Judge of the Court of
Small Causes held that the structures were of a permanent nature and ordered
eviction of the tenant on the ground of permanent construction. The
respondent's appeal was dismissed by the Appellate Bench of the Court of Small
Causes which, on a detailed reappraisal of the evidence on record, not only
confirmed the decree for eviction on the ground of permanent construction but
granted eviction on the ground of change of user as well. The respondent went
in appeal against the order of the appellate court. The High Court, dealing
with the matter under Art. 227 of the Constitution, reversed the concurrent
findings of the courts below and allowed the respondent's petition.
Allowing
the appeal and restoring the order of the lower appellate court, 594 HELD: 1.
(a) Interference by the High Courts under Art.
227
of the Constitution must be within limits. This question has been considered by
this Court from time to time and principles laid down. The power under Art. 227
is one of judicial superintendence and it cannot be exercised to upset the
conclusions of facts, however erroneous these may be. It is possible that
another Court may be able to take a different view of the matter by
appreciating the evidence in a different manner, if it determinedly chooses to
do so. That will not be justice administered according to law to which courts
are committed. [605D-E] (b) In exercise of jurisdiction under Art. 227' of the
Constitution, the High Court can go into questions of facts or look into the
evidence if justice so requires it. But the High Court should decline to
exercise that jurisdiction to look into the facts in the absence of clear-cut
reasons where the question depends upon the appreciation of evidence. The High
Court should not interfere with a finding within the jurisdiction of the
inferior tribunal or court except where the finding is perverse in law, in the
sense that no reasonable person properly instructed in law could have come to
such a finding, or there is misdirection in law, or view of fact has been taken
in the teeth of preponderance of evidence, or the finding is not based on any
material evidence or it resulted in manifest injustice.
Except
to the extent indicated above the High Court has no jurisdiction. [606B-D]
Satyanarayan Laxminarayan Hegde & Ors. v. Mallikarjun Bhavanappa Tirumale,
[1960] 1 S.C.R. 890; India Pipe Fitting Co. v. Fakruddin M.A. Baker & Anr.,
[1978] 1 S.C.R. 797;
Ganpat
Ladha v. Shashikant Vishnu Shinde, [1978] 3 S.C.R. 198; Mrs. Labhkuwar Bhagwani
Shah & Ors. v. Janardan Mahadeo Kalan & Anr., [1982] 3 S.C.C. 514 and
Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, [1986] 4 S.C.C. 447; re-
ferred to.
2.
No hard and fast rule can be laid down for determining the question whether a
particular structure put up by the tenant is a permanent structure for the
purpose of cl. (p) of s. 108 of the Transfer of Property Act. 1882 as it is
dependent on the facts of each case. One must look to the nature of the
structure, the purpose for which it was in- tended and take a whole perspective
as to how it affects the enjoyment, the durability of the building, etc. and
other relevant factors and come to a conclusion. [601D-E; 602D-E] Surya
Properties Private Ltd. & Ors. v. Bimalendu Nath Sarkar & Ors., A.I.R.
1964 Calcutta 1 and M/s Surya Proper- ties Private Ltd. 595 v. Bimalendu Nath
Sarkar, A.I.R. 1965 Calcutta 408, approved.
Khureshi
Ibrahim Ahmed v. Ahmed Haji Khanmahomad, A.I.R. 1965 Gujarat 152 and Ramji
Virji & Ors. v. Kadarbhai Esufa- li, A.I.R.1973 Gujarat 110, referred to.
In
this case, on an analysis of the evidence the trial court as well as the
appellate court had held that the structures were permanent. All the relevant
factors had been borne in mind by the learned trial Judge as well as the
Appellate Bench of the Court of Small Causes. The view taken by them was a
possible view. A different view might have been taken but that is no ground
which would justify the High Court to interfere with the findings. [600F]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 195556 of 1980.
From
the Judgment and Order dated 3/4th July, 1979 of the Bombay High Court in Spl.
C.A. Nos. 2052 of 1973 and 132 of 1974.
F.S.
Nariman, Anil B. Diwan, P.H. Parekh, Ms. Lata Krishnamurthy and S. Dutt with
for the Appellants.
V.M.
Tarkunde and H.G. Advani, Hira Advani Kailash Vasudev, Joel Peres and D.N.
Misra for the Respondents.
The
Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These appeals,
by special leave, by the landlords are directed against the judgment and order
of the High Court of Bombay dated 3/4th July, 1979.
Two
questions arise for consideration in these appeals--(i) whether the structure
constructed by the tenant in the premises in question amounted to permanent
structure leading to the forfeiture of the tenancy of the tenant; (ii) what is
the scope and extent of the jurisdiction of the High Court under Article 227 of
the Constitution on questions of facts found by the appellate bench of Small
Causes Court.
In
order to appreciate these questions, it is necessary to reiterate the relevant
facts. The second appellant being plaintiff no. 2 in the Original Suit leased
out the premises involved herein being a godown measuring 11,500 sq. ft. at 156
A, Tardeo, Bombay-7. The said premises was given by the landlord to the tenant,
the respondent herein-M/s Bright Brothers (Pvt.) Ltd. on lease vide the
registered lease dated 14th April, 1947 for a period of ten years commencing
from 1st September, 1946. By 1953, the respondent company began to fall into
arrears in payment of rent. The respondent-tenant filed an application before
the appropriate Rent Court for fixing the standard rent.
On
14th June, 1958, the advocate of the second appellant sent a notice to the
respondent-tenant calling upon them to pay up the arrears for the period from
September, 1956 to May, 1958 (both months inclusive), as well as for earlier
arrears of rent of Rs.20,850. On 1st December, 1958 a second notice was issued
on behalf of the original plaintiff no. 1 calling upon the respondent to quit
and vacate the premises in question on the grounds, inter alia, (a)
unauthorised construction of permanent nature; (b) obstructing roadways;
and
(c) the damage to walls and floor, and further called upon them to remove the
unauthorised construction and re- store the suit premises to its original
condition. Inasmuch as the main factual controversy in those appeals relate to
the nature of the construction alleged to have been made by the tenant, it is
relevant to set out what was stated in that letter. It was, inter alia, stated
that the tenant had unauthorisedly committed several breaches of the terms and
conditions of the lease inasmuch as the tenant had erected unauthorised
construction of a permanent nature and carried out additions to the demised
premises without the consent of the lessor or the receiver. It was further
alleged that in breach of the terms and conditions of the agreement of tenancy
and without the consent of the lessor or the receiver, the tenant had occupied
portion of the land not let out to him by obstructing the lessor and the person
entitled to use the same and had made construction on the roadway by
obstructing and restricting the passage. It was further alleged that the tenant
had unauthorisedly and without permission dug up and mutilated the floors of
the premises let out to the tenant and had constructed contrary to the
provisions of section 108(0) of the Transfer of Property Act, 1882. The tenant
was called upon to remove the said unauthorised structures and restore the
property, and it was further notified that failing which the landlord would be
compelled to take proceedings.
A
reply to the said notice issued by the Court Receiver was sent on 8th December,
1958 from the respondent company's advocate saying that the construction
complained of had taken place with the consent and full knowledge of the
appellant and the respondent company had spent thousands of rupees towards the
improvement of the suit 597 premises. Further in reply to the allegation of
damage to the property, the respondent company had alleged that it had in fact
improved the property of the appellant. On or about 20th December, 1958, the
advocate for the appellant replied to the above letter once again calling upon
the respondent company to vacate the demised premises.
In
1959, the standard rent application being R.A. No. 2214 of 1954 mentioned
hereinbefore was dismissed. There- upon, the respondent-tenant filed a civil
revision application. The appellant filed a suit being suit no. 1450/83 18 of
1959 on or about 31st July, 1959. On or about 8th December, 1965, the appellant
made an application for amendment of the plaint to include change of user as an
additional ground of eviction. The respondent also made an application for
amendment to the effect that permanent structure had been made with the
knowledge and consent of the appellant.
The
said amendments were allowed in December, 1965.
On
or about 31st March, 1967, the trial court in suit no. 1450/ 8318 of 1959,
ordered eviction of the tenant on the ground of permanent construction. Mesne
profit from the date of the decree was also ordered. There was an appeal to the
appellate bench before the Court of Small Causes and cross appeal being appeal
nos. 323 and 629 of 1967. By the judgment delivered on 14th June, 1973, the division
bench of the Court of Small Causes confirmed the decree for eviction on the
ground of permanent construction and granted eviction on change of user as well
in the cross objection filed by the appellant. It also ordered mesne profit
from the date of the suit and the monetary claims to the extent of arrears.
The
High Court on or about 3/4th July, 1979, by judgment and order of the High
Court in SCA 2052 and 174 of 1974 under Articles 226 and 227 of the
Constitution reversed the concurrent findings of the courts below and allowed
the respondent company's application. Being aggrieved there from, the
appellants, the landlords have come up in appeal to this Court.
It
is, first necessary therefore to consider the nature of the structures made and
whether these were permanent or not. As stated hereinbefore that permanent
structures were constructed was held by the two courts concurrently, namely the
Judge of the Court of Small Causes as well as the Appellate Bench of the Small
Causes Court; whether by such construction there has been change of user is
another question.
On
the nature of the construction, it is necessary to refer to the decision of the
trial court.
598
The main question, however, in these appeals is the jurisdiction of the High Court
to interfere with the findings of this nature under Article 227 of the
Constitution.
The
principles are well-settled. Their application, however, in particular cases
sometimes present difficulties. But the quest for certain amount of certitude
must continue in this field of uncertain minds and imperfect language.
To
the facts, therefore, we must now refer to appreciate the application of law
involved in this case. The premises in question was let out for use exclusively
for business of manufacture of plastic articles, wood work and paints only and
not for any other purpose. it is alleged that it is no longer used for that
purpose but used as an office and storage.
The
trial court in this case was the Court of Small Causes, Bombay. One of the
grounds of ejectment was the erection of permanent structure and it was the
case of the appellant no. 2 that such erection was against the provisions of
section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control
Act, 1974 (hereinafter called the 'Rent Act').
Under
clause (p) of section 108 of the Transfer of Property Act, 1882, a lessee may
not without the lessor's consent erect on the property and permanent structure
except for agricultural purposes. If he does, then this becomes a ground for
ejectment.
In
this case the permanent structures alleged were constructions of lofts,
construction of several rooms and construction of and laying of a new and
permanent flooring as appears from the plaint filed in the proceedings. It
further appears that the tenant had sunk in pillars and stanchions into the
flooring. it was stated in the deposition that these pillars and stanchions
mentioned in the plaint were only those which were the posts supporting the
cabins and lofts complained of and none else. These pillars and stanchions went
along with the construction of lofts and construction of several rooms, that is
cabins. The learned trial court discussed the details and found those cabins
marked A, B, C, D, E, F, G, H, I, J, K, L etc. There were lofts marked cabins A,
B, C, D, E, F, J, K, other lofts marked as F, G, H and I. The third loft over
the cabin at L and the lofts over the portions M & N. These were, according
to the engineer, an architect, Shri Divecha, who was examined on behalf of the
plaintiff, permanent structures. The learned judge examined the plan prepared
by the said architect and his deposition. The learned judge was of the view
that it was clear from the 599 architect's evidence that lofts A, B, C, D, E,
J, K. as well as the lofts over F, G, H and I were meant to carry weight of
over 100 Ibs. per sq. ft. and this statement according to the learned judge was
not challenged in the cross-examination. The structures over A, B, C, D, E, J.
and F.C.H.I cannot therefore be called only roofs or tops of cabins.
They
were nothing but lofts. The structures A, B, C, D, E, K, J. so also F, G, H, I,
L & M were admitted to have been constructed by the tenant after it had
taken the premises from the landlord. The learned judge in his judgment has
also noted these various facts as to their length and dimensions. He referred
extensively to the evidence in the plan which was marked Ex. MI and the
deposition of Shri Divecha.
The
learned Judge taking these factors into consideration came to the conclusion
that the cabin lofts and posts sup- porting the same were attached to the
flooring as well as the walls and columns of the main structures. Under these
circumstances, the learned judge of the Court of Small Causes was of the
opinion that the structures were permanent in nature. The learned judge,
however, held that the land- lord had failed to prove that the tenant had put
up any permanent flooring at some part of the suit premises as alleged. The
next allegation was that the tenants had demolished a portion of the wall in between
the two rooms and prepared a door at that opening. After discussing the facts
and the evidence, the learned judge was of the view that there was no question
of any waste of the plaintiff's property on account of any demolition. He,
however, had held that so far as cabins, lofts and posts supporting the same by
pillars, these were nothing but permanent structures. So far as the digging of
the flooring was concerned, after discussing the evidence the learned judge
held that the plaintiffs had failed to prove digging which led to waste of the
property of the landlord. So far as the creation of the permanent structure is
concerned, the same breached the terms of tenancy. The learned judge noted that
on 1st January, 1948 the defendant no. 1 wrote to the plaintiff that the height
of the wooden partition they were erecting was specified within the plan sent
along with the aforesaid letter which had already been lying ready for
erection. It was contended by the defendants in their written statements that
they had obtained consent in respect of the wooden cabins and partitions in the
year 1948. So far as section 13(1)(b) of the Bombay Rent Act is concerned,
there cannot be any waiver operating against the plaintiffs. It was the case
that some of the permanent structures were there before 1947. On examination of
the evidence, the learned judge observed that Mr. D'silva had stated that the
tenant had requested Mahindra & Mahindra for a design of a slotted angle
cabin with a loft, that the same was supplied and Mr. D'silva was the designer
who did the work. Analysing all these evidence, the 600 learned trial judge
came to the conclusion that permanent structures were carried out without the
consent in writing of the landlords or either of them. Such permanent structure
was outside the tenancy and the landlord had not given any consent.
The
matter on this issue went up before the appellate court and the appellate court
dealt with this again and discussed these allegations. It was pointed out by
the appellate court that the allegations were that the appellants had (a) made
an opening by demolishing a part of the wall dividing the two portions of the
demised premises; (b) constructed lofts in the suit-premises, (c) dug upon the
flooring of the premises at various places, (d) sunk in pillars and stanchions
into the flooring, (e) constructed several rooms and laid new and permanent
floorings in parts of the demised premises at different levels. So far
constructing lofts, it was held that these lofts had been constructed after 1st
September, 1946. And in this context the construction of cabins and putting up
of pillars were considered and the evidence in this respect was taken into
consideration. It was contended that the demised premises in the lease was
described as go-down but it was taken in the nature of several office premises
and the change in the improvement done to the same was merely for the better
enjoyment of demised premises. In the first place the cabins were made of
wooden poles and planks fixed in the floor, and side walls of the building with
nails, screws, nuts and bolts. The appellate court came to the conclusion that
applying the proper test, the cabins were substantial structures and
substantial improvement to the premises. These were durable for long and intended
to be used permanently.
The
appellate court also took the question of digging and other relevant
allegations. As a result of analysis of these evidence and materials, the
appellate court confirmed the findings of the trial court that the tenant had
erected permanent structure on the demised premises without the landlord's
consent and that was a breach of the terms of tenancy. They also confirmed the
finding of the trial court that the respondents did not waive their rights
arising out of these acts. They also upheld the finding that there was no
renewal of the lease of the landlords and the tenants were not statutory
tenants whose contractual tenancy had come to an end by efflux of time by the
end of the period of ten years from 1st September, 1946. They upheld the decree
for possession passed by the trial court.
The
High Court dealing with this matter under Article 227 of the Constitution had
occasion to refer to this aspect. The High Court 601 referred to the different
authorities on this point. We may briefly take note of some of these.
In
this connection reference may be made to a decision of the Special Bench of the
Calcutta High Court in the case of Surya Properties Private Ltd. and others v.
Bimalendu Nath Sarkar and others. A.I.R. 1964 Calcutta p. 1 which dealt with
clause (p) of section 108 of the Transfer of Property Act, 1882 and held that
this question was dependent on the facts of each case and no hard and fast rule
can be laid down with regard to this matter. In the absence of any relevant
materials, therefore, the Full Bench found that no answer could be given. in a
slightly different context, before Calcutta High Court in the case of M/s
Suraya Proper- ties Private Ltd. v. Bimalendu Nath Sarkar. A.I.R. 1965 Calcutta
page 408, Chatterjee, J., one of the judges of the Division Bench observed that
the phrase 'permanent structure' for purposes of clause (p) of section 108 of
the Transfer of Property Act meant a structure which was capable of lasting
till the term of the lease and which was constructed in the view of being built
up as was a building. In that context the learned judge observed that a
reservoir was not, however, a permanent structure for purposes of clause (p) of
section 108 of the Transfer of Property Act. Sen, J. of the same Bench was of
the view that no hard and fast tests could be laid down for determining the
question whether a particular structure by the tenant was a permanent structure
for the purpose of clause (p) of section 108 of the Transfer of Property Act.
The answer to the question depended on the facts of each case. Chatterjee, J.,
however, took the view that where the tenant created a permanent structure in
the premises leased to him, as the lease continued in spite of the disputed
structure and the landlord continued to receive rent till the determining of
the lease by notice to quit or thereafter till the passing of the decree for
eviction and the fact that he accepted rent with full knowledge of the disputed
structure did not disentitle him to a decree for eviction.
In
Khureshi Ibrahim Ahmed v. Ahmed Haji Khanmahomad. A.I.R. 1.965 Gujarat, 152, in
connection with section 13(1)(b) of the Rent Act, Gujarat High Court held that
the permanent structure must be one which was a lasting structure and that
would depend upon the nature of structure. The permanent or temporary character
of the structure would have to be determined having regard to the nature of the
structure and the nature of the materials used in the making of the structure
and the manner in which the structure was erected and not on the basis of how
long the tenant intended to make use of the structure. As a matter of fact, the
Court observed, the nature of the structure 602 itself would reflect whether
the tenant intended that it should exist and be available for use for a
temporary period or for an indefinite period of time. The test provided by the
Legislature was thus an objective test and not a subjective one and once it was
shown that the structure erected by the tenant was of such a nature as to be
lasting in duration-lasting of course according to ordinary notions of
mankind--the tenant cannot come forward and say that it was erected for
temporary purpose.
The
question was again considered in the case of Ramji Virji and others v.
Kadarbhai Esufali, A.I.R. 1973 Gujarat 110. It was observed that whether the
structure was a permanent structure was a mixed question of law and fact. It
was held in that case that alterations made by a tenant like constructing loft,
wooden bathroom, frame and putting up a new drain being minor alterations which
were easily removable without causing any serious damage to the premises would
not amount to permanent structure leading to the forfeiture.
There
are numerous authorities dealing with the question how the structure is a
permanent structure or not should be judged. It is not necessary to deal with
all these. One must look to the nature of the structure, the purpose for which
it was intended and take a whole perspective as to how it affects the
enjoyment, the durability of the building etc.
and
other relevant factors and come to a conclusion.
Judged
in the aforesaid light on an analysis of the evidence the trial court as well
as the appellate court had held that the structures were permanent. The High
Court observed that in judging whether the structures were permanent or not,
the following factors should be taken into consideration referring to an
unreported decision of Malvankar J. in special civil application No. 121 of
1968. These were (1) intention of the party who put up the structure;
(2)
this intention was to be gathered from the mode and degree of annexation; (3)
if the structure cannot be removed without doing irreparable damage to the
demised premises then that would be certainly one of the circumstances to be
considered while deciding the question of intention. Like- wise, dimensions of
the structure and (4) its removability had to be taken into consideration. But
these were not the sole tests. (5) the purpose of erecting the structure is
another relevant factor. (6) the nature of the materials used for the structure
and (7) lastly the durability of the structure. These were the broad tests. The
High Court applied these tests. So had the Trial Court as well as the appellate
bench of Court of Small causes.
603
All the relevant factors had been borne in mind by the learned trial judge as
well as appellate bench of the Court of Small Causes. Therefore, simply because
another view is possible and on that view a different view is taken, will be
interfering under jurisdiction under Article 227 of the Constitution which is
unwarranted. The High Court was impressed by the fact that having regard to the
facts and circumstances of the case and further more for efficient and complete
enjoyment of the demised premises and for carrying out the business of
manufacturing plastic goods, these structures had been constructed by the
tenant temporarily.
According
to the High Court, the nature of the materials used and the intention of the
tenant were relevant and according to the High Court, these structures could be
removed without doing appreciable damage to the demised premises and these
indicated that these were intended to be part and parcel of the normal part of
the building. The High Court proceeded on the basis that the trial court as
well as the appellate bench of the Small Causes Court had relied wholly on the
basis of evidence of the admission of one Mr. Pittie who had admitted that the
landlord had knowledge of these factors. The other evidence, according to the
High Court,. of the Divecha, D'Silva, Kirtikar and Bhansali were not at all
given proper and due weight. According to the High Court, the High Court had in
such circumstances jurisdiction to deal with this matter and in exercise of the
jurisdiction, as the High Court felt that relevant and material facts had been
ignored, the High Court set aside the order of the court of Small Causes, and
set aside the landlord's decree and restored the tenant in possession.
As
mentioned hereinbefore it is not necessary for our present purpose to decide
whether plaintiffs' witnesses were properly appreciated. We find all the
relevant evidence had been examined by the trial judge as well as by the
appellate bench of the court of Small causes. We find relevant reference to the
evidence of Divecha, and others. We find reference to the relevant evidence in
the deposition at pages 56, 69, 71, 83, 93, to 95 by the trial court as well as
in pages 133-36, 152, 167, we find reference to the deposition at p.
56
of the trial court and pages 62 to 63, as well as 65 to 71 and the Appellate
Court at pages 134 and 147. Similarly the evidence of D'silva who was an
employee of Mahindra and Mahindra as also of Shri Kirtikar, were discussed. It
is not necessary to refer in detail to these evidence.
So
far as to what extent the factors are structures have been exhaustively
referred to in Surya Properties Private Ltd. and others v. Bimalendu Nath
Barkar and others (supra) and M/s Surya Properties 604 Private Ltd. v.
Bimalendu Nath Sarkar (supra) and in our opinion these lay down correct
position in law. As a matter of fact the tenant is no longer carrying on any
business there but one Messrs Quality Plastics is carrying on the business.
Therefore the original purpose is gone. In this connection reference may be
made to Annexure IV appearing at page 428 of the Paper Book which is a letter
dated both July, 1964 written by the Concord of India Insurance Company Limited
to the Secretary. The Insurance Association of India where it was stated
clearly that Bright Brothers Pvt. had shifted to Bhand up as from 29th April,
1963 and at the relevant time, they had only their Administrative Officer there
and they were stocking finished goods in the premises in question. Further,
they have recently installed their Associate Company's factory in the said
block working under the name of M/,s. Quality Plastics in the premises in
question.
Therefore,
in view of the fact that large sum had been spent and considering the standard
and the nature of the construction and lack of easy removability and the degree
of an annexation to the enjoyment for the original purpose, we are of the
opinion that the learned judge as well as appellate bench of the court of Small
Causes had applied the correct principles and came to a plausible conclusion.
About the removability of the structure, the High Court was bound by the
finding of the appellate authority which appears at page 341 to 344 of the
Paper Book. In a case of this nature, the High Court found that they had to
enter into this question to find the real position whether the proper
principles had been correctly borne in mind. It is indisputable that the
finding that has to be arrived at by the court in this case is a mixed question
of law and fact. Therefore, if the basic factors, for example, there was not
proper appreciation of the evidence, if the assumption that lofts per se were
not permanent structures then the courts below might be said to have committed
error apparent on record and no court instructed in law could take such a view.
But if all the relevant factors have been borne in mind and correct legal
principles applied then, right or wrong, if a view has been taken by the appellate
court, in our opinion, interference under Article 227 of the Constitution was
unwarranted.
Interference
by the High Court under Article 227 of the Constitution must be within limits.
This question has been considered by this Court from time to time and
principles laid down. This Court in Ganpat Ladha v. Sashikant Vishnu Shinde,
[1978] 3 SCR 198 expressed the view that the High Court commits a gross error
in interfering with what was a just and proper exercise of discretion by the
Court of 605 Small Causes, in exercise of its power under Article 227 of the
Constitution. This was unwarranted. The High Court under Article 227 has a
limited jurisdiction. It was held in that case that a finding as to whether
circumstances justified the exercise of discretion or not, unless clearly
perverse and patently unreasonable, was, after all a finding of fact and it
could not be interfered with either under Article 226 or 227 of the
Constitution. If a proper court has come to the conclusion on the examination
of the nature of the structure, the nature of the duration of structure, the
annexation and other relevant factors that the structures were permanent in
nature which were violative of section 13(1)(b) of the Rent Act as well as
section 108 clause (p) of Transfer of Property Act and such a finding, is
possible, it cannot be considered to be perverse. In such a situation, the High
Court could not have and should not have interfered.
In
India Pipe Fitting Co. v. Fakruddin M.A. Bakar and ANR., [1978] 1 SCR 797, this
Court reiterated that the limitation of the Court while exercising power under
Article 227 of the Constitution is well settled. Power under Article 227 is one
of judicial superintendence and cannot be exercised to upset the conclusions of
facts, however., erroneous these may be. It is possible that another Court may
be able to take a different view of the matter by appreciating the evidence in
a different manner, if it determinedly chooses to do so. That will not be
justice administered according to law to which Courts are committed
notwithstanding dissertation in season and out of season, about philosophies.
In that case, the Court found that the High Court had arrogated to itself the
powers of the appellate court.
As
early in 1959, in Satyanarayan Laxminarayan Hegde and Others v. Millikarjun
Bhavanappa Tirumale, [1960] 1 SCR 890, this Court found that in that case on
the materials avail- able before it that the High Court was wrong in thinking
that the alleged error in the judgment of the Bombay Revenue Tribunal was one
apparent on the face of the record so as to be capable of being corrected by a
writ of certiorari and an error which had to be established by a long drawn
process of reasoning on points where there may conceivably be two opinions
cannot be said to be an error apparent on the face of the record. There might
have been error in the judgment of the appellate bench of the Court of Small
Causes but it is not an error palpable and apparent, right or wrong they had
come to that conclusion. That was possible or plausible conclusion.
In
Mrs. Labhkuwar Bhagwani Shah and Others v. Janardhan 606 Mahadeo Kalan and
Another, [1982] 3 SCC 5 14, this Court reiterated that concurrent finding of
facts whether relating to jurisdictional issue or otherwise were not open to
interference by the High Court under Article 227 of the Constitution.
This
Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, [1986] 4 SCC p. 447
held that in exercise of jurisdiction under Article 227 of the Constitution,
the High Court can go into the questions of facts or look into the evidence if
justice so requires it. But the High Court should decline to exercise its
jurisdiction under Article 226 and 227 of the Constitution to look into the
facts in the absence of clear cut-down reasons where the question depends upon
the appreciation of evidence. The High Court should not interfere with a
finding within the jurisdiction of the inferior tribunal or court except where
the finding is perverse in law in the sense that no reasonable person properly
instructed in law could have come to such a finding or there is misdirection in
law or view of fact has been taken in the teeth of preponderance of evidence or
the finding is not based on any material evidence or it resulted in manifest
injustice. Except to the limited extent indicated above, the High Court has no
jurisdiction.
In
this instant case the tests laid down have not been transgressed by the court
of Small Causes both trial court as well as the appellate bench. The view it
took was a possible view. A different view might have been taken out that is no
ground which would justify the High Court to interfere with the findings.
In
that view of the matter, we allow the appeals, set aside the judgment and order
of the High Court and restore the order of the appellate bench of Court of
Small Causes dated 4th June, 1973. There will be an order for possession and
mesne profits as directed by the Court of Small Causes.
The
respondents will pay the cost of these appeals.
H.L.C.
Appeals allowed.
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