Pralhad S/O Sitaram Waghmare vs Anandrao S/O Mahadeo Mandirkar
2017 Latest Caselaw 2108 Bom

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

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.

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

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

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.

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

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.

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.

JUDGE APTE