CRA 8/17 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO. 8/2017
Pralhad S/o Sitaram Waghmare,
Aged about 70 years, Occupation : Private,
R/o Jogithana Peth, Umred,
Tah. Umred, Distt. Nagpur. APPLICANT
.....VERSUS.....
Mr. Anandrao S/o Mahadeo Mandirkar,
aged about 75 yrs.
R/o Jogithana Peth, Umred,
Tah. Umred, Distt. Nagpur. NON-APPLICA
NT
Shri C.B. Dharmadhikari, counsel for the applicant.
Mrs. Rashi Deshpande, counsel for the non-applicant.
CORAM : N.W. SAMBRE, J.
DATE : 2 ND MAY , 2017. ORAL JUDGMENT
The present revision is by the original defendant, who suffered a decree for eviction pursuant to a judgment and order passed by the learned District Judge, Nagpur in Regular Civil Appeal No.522 of 2010 decided on November 3, 2016.
2. The facts that are necessary for deciding the revision are as under:-
The present applicant is the original defendant in Regular Civil Suit No.107 of 2005 decided by the learned Civil Judge (Junior Division), Umrer on September 1, 2010, wherein the respondent-original ::: Uploaded on - 31/05/2017 ::: Downloaded on - 28/08/2017 01:14:48 ::: CRA 8/17 2 Judgment plaintiff sought a decree for ejectment and possession. The respondent claimed to be the owner of Municipal House No.3267 located at Peth Jogithana, Umrer consisting of two rooms. On monthly rent of Rs.500/-, the tenancy began from 1st day of English Calendar month.
3. In the said civil suit, amongst others, there were grounds such as willful default in making payment of rent, i.e. habitual default, nuisance, bona fide need, etc.
4. The suit was contested by the present applicant vide Exhibit 13, the written statement. The issue of ownership and the rent of Rs.500/- was not disputed, however, the issue of habitual default was denied. A counter claim was submitted by the tenant seeking recovery of Rs.5,000/- towards expenditure incurred for the maintenance and repairs along with interest at the rate of 18% per annum. The said counter claim was resisted by the respondent-original plaintiff vide Exhibit 18. The issues were framed at Exhibit 19.
5. The plaintiff examined himself at Exhibit 21 and produced documentary evidence, viz. Exhibit 28-Tax Receipt, Exhibit 29-Copy of Notice, Exhibit 30-Postal Acknowledgment.
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CRA 8/17 3 Judgment
6. The applicant-defendant examined himself at Exhibit 38 and also produced money orders and its acknowledgments from Exhibits 40 to 159 and other documents, viz. reply to the notice, postal acknowledgment, copy of complaint vide Exhibits 160 to 163 respectively.
7. The trial Court after considering the rival claims and appreciating the evidence, dismissed the suit vide judgment and order, dated September 1, 2010, which was the subject matter of an appeal bearing Regular Civil Appeal No.522 of 2010. The appeal came to be allowed by the learned District Judge by the impugned judgment. As such, present revision is preferred by the original defendant.
8. The learned counsel for the respondent-landlord/original plaintiff raised a preliminary objection about the maintainability of the revision, however, the said objection is required to be overruled in view of the judgment of this Court in the case of Gajanan and Others Versus Mohd. Jamil Mohd. Amad and Others in Writ Petition No.5552 of 2013 and 3431 of 2013. The Division Bench of this Court in paragraph 34 of the said judgment has observed thus:-
"34. We, therefore, answer the reference as under: (I) The view taken by the learned Single Judge in the case of Dilip Bidesh & Ors. Vs. Shivgopal Madangopal Chaurasia & Ors. that revision ::: Uploaded on - 31/05/2017 ::: Downloaded on - 28/08/2017 01:14:48 ::: CRA 8/17 4 Judgment under Section 115 of the Code would not be tenable against the order under Section 26-A of the said Act does not lay down the correct position of law.
(II) The view taken by the learned Single Judge in the case of Dhuliabai Mana Praga and Ors. Vs. Manikbai Vithalrao Bhusarath (Deceased), to the extent that revision under Section 115 of the Code is tenable against an order passed under the analogous provisions, is correct. However, the view that the writ petition would not be tenable under Article 227 of the Constitution of India against such an order, in our view, does not lay down correct position of law.
(III) In our considered view, a party aggrieved by the order passed under Section 26-A of the said Act by the District Court would be at liberty to choose to file either Civil Revision Application under section 115 of the Code or a petition under Article 227 of the Constitution of India.
(IV) ............."
9. Amongst others, the submissions as are canvassed by the applicant are that the appellate Court has failed to consider the appeal of the tenant particularly in the light of scope as is provided under Section 96 and Section 107 of the Code of Civil Procedure. He would harp upon the circumstances as were happened before the learned appellate Court for deciding the appeal. According to him, the finding that the landlord has proved his reasonable and bona fide need was answered in affirmative ::: Uploaded on - 31/05/2017 ::: Downloaded on - 28/08/2017 01:14:48 ::: CRA 8/17 5 Judgment without dealing with the evidence. He would then urge that even the issue of greater hardship, answered in favour of landlord, is without appreciation of evidence.
10. Per contra, the learned counsel for the respondent opposed the revision on the ground that there is no error of jurisdiction or failure to exercise the jurisdiction. She would then rely upon the judgment of Apex Court in the matter of Shamshad Ahmad & Ors. Versus Tilakraj Bajaj & Ors., reported in (2008) 9 SCC 1 so as to claim that it is open for the appellate Court to decide the issue of bona fide need. She would then harp upon the principle that the landlord is the best judge of his own requirement. In addition, she also invites attention of this Court to the judgment of Apex Court in the matter of Gangadevi Versus District Judge, Nainital & Ors., reported in (2008) 7 SCC 770 so as to canvas that failure on the part of the tenant to secure another accommodation or failure to make efforts for the same was rightly inferred to be a greater hardship in favour of the landlord. She would then urge that the revisional Court should not substitute its finding to that of the judgment of the appellant Court as finding of fact of first appellate Court cannot be interfered with, in revisional jurisdiction and would sought the support from the judgment of the Apex Court in the matter of Hindustan Petroleum Corporation Limited Versus Dilbahar Singh, reported in (2014) 9 SCC 78. ::: Uploaded on - 31/05/2017 ::: Downloaded on - 28/08/2017 01:14:48 :::
CRA 8/17 6 Judgment
11. Having considered rival submissions, the first issue that is required to be dealt with by this Court is whether the appellate Court pursuant to the scheme of Section 96 and 99-A has discharged its duty as an appellate Court while deciding the appeal. The appellate Court, in my opinion, was duty bound to re-appreciate the entire evidence and to record its finding on the issue of bona fide need as the suit of the present non-applicant was dismissed by the trial Court which decree was reversed in an appeal. The appellate Court in such an eventuality while determining the case finally, must satisfy that there existed sufficient evidence to reach to a conclusion that the suit for eviction is liable to be allowed by setting aside a decree of trial Court of dismissing the suit. Appropriate support to that effect can be drawn from the judgment of the Apex Court in the matter of Thatchara Brothers & Anr. Versus M.K. Marymol & Ors., reported in (1999) 1 SCC 298. It is expected of the appellate Court to discharge the duty casted upon it in the backdrop of the pleadings raised. The judgment of the appellate Court must reflect its conscious application of mind while recording the findings.
12. A first appeal is a valuable right available to the aggrieved party and both question of law and fact are required to be appreciated. While writing a judgment of reversal, the appellate Court is required to be conscious of two principles, viz. A) The finding of fact based on ::: Uploaded on - 31/05/2017 ::: Downloaded on - 28/08/2017 01:14:48 ::: CRA 8/17 7 Judgment conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so, when the findings are based on oral evidence recorded by the Court below; and B) While reversing a finding of fact by the appellate Court, it must come in close proximity with the reasons assigned by the trial Court and then assign its own reasons for arriving at a different finding. Appropriate support can be drawn from the judgment of the Apex Court in the matter of Santosh Hazari Versus Purushottam Tiwari (Deceased) By L.R.s, reported in (2001) 3 SCC 179.
13. In the case in hand, after the issues were framed by the trial Court, the trial Court proceeded to analyze the evidence in the backdrop of the pleadings raised and recorded a finding of dismissal of the suit, whereas, the appellate Court in stead of re-affirming the entire evidence, in a cryptic manner proceeded to allow the appeal without appreciating the evidence. The lower appellate Court has proceeded to decide the appeal without properly appreciating the evidence and recording the reasons in support thereof.
14. Prima-facie, the judgment of the appellate Court as such is contrary to the provisions of Section 107, particularly the duty as is casted on the appellate Court while deciding the appeal. The judgment in the matter of Santosh (Supra) squarely covers the issue. In the aforesaid background, in my opinion, a case for remand is made out. ::: Uploaded on - 31/05/2017 ::: Downloaded on - 28/08/2017 01:14:48 :::
CRA 8/17 8 Judgment
15. As this Court is inclined to remand the matter, the Court has thought it fit not to dwell on the other issues as raised by the learned counsel for the respondent-Landlord.
16. As a consequence, the revision is partly allowed. The judgment and order dated November 3, 2016, passed in Regular Civil Appeal No.522 of 2010 by the Principal District Judge, Nagpur is hereby quashed and set aside. The said appeal stood restored to the file of the learned Principal District Judge, Nagpur. The parties to the present proceedings agree that they shall appear before the learned Principal District Judge on 27.06.2017 so that issuance of fresh notices to the parties pursuant to said statements before the learned Principal District Judge could be dispensed with. The learned Principal District Judge is directed to decide the said appeal expeditiously and in any case within a period of three months from the date of appearance of the parties. In the facts of the case, there would be no order as to costs.
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