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TMI Blog1975 (2) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... pute between the parties as to what was the purpose for which the shop was let to the appellant, but having regard to the finding given by the First appellate Court, which is the ultimate court of fact, it must be taken that the shop was let out to the appellant only for the purpose of business. THE respondents were not the original landlords of the shop but they purchased , the building, of which the shop forms part on 1 2/12/1963 and after purchasing it, they gave a notice dated 12/11/1964 to the appellant terminating his tenancy in respect of the shop. THE appellant declined to hand over possession of the shop and the respondents thereupon filed a suit in the court of Small Causes Poona for recovering possession of the shop from the appellant. THEre were several grounds on which the possession of the shop was sought by the respondents but barring one, the remaining grounds do not survive as they were negatived by the Trial Court and also in appeal, by the First Appellate Court. THE one ground which still survived is that relating to recovery of possession under cls. (a) and (k) of sub-section (1) of Sec.13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 13. THE appellant thus disputed the right of the respondents to recover possession of the shop both under clause (a) and clause (k) of sub-section (1) of Section 13. The Trial Court found, one consideration of the oral as well as documentary evidence led in the case, that though the shop was let to the appellant for the purpose of business he was using a portion of it for his residence as well and the respondents had therefore, made out a case for recovery of possession of the shop under clause (k) of sub-section(1) of Section 13. The Trial Court accordingly passed a decree for eviction against the appellant. The appellant preferred an appeal to the District Court but the appeal was unsuccessful and the District Court confirmed the decree for eviction passed by the Trial Court. The appellant thereupon preferred a petition in the High Court of Bombay under Article 227 of the Constitution challenging the validity of the decree for eviction passed by the Trial Court and confirmed by the District Court. The Special Civil Application came up for hearing before Mr. Justice Bhasme. The learned Judge found that this was not a case where the tenant had ceased altogether to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shop by we appellant was residence and not business, the respondent had failed to discharge the burden which lay upon them of substantiating their claim for possession under clause (a) or clause (k) of subsection (1) of Section 13 and no decree for eviction could accordingly be passed against the appellant. The learned Judge, in the circumstances, should have quashed and set aside the decree for eviction. But, instead the learned Judge framed the following two issues, namely: (1) Whether the plaintiffs prove that the defendant has changed the use of the premises in such a manner that the dominant or primary use is residence and not business? (2) Whether the plaintiffs further prove that they are entitled to eject the defendant either under S. 13 (1) (a) or Section 13 (1) (k) of the Bombay Rent Act. ? and remitted these two issues to the Trial Court with a direction to give opportunity to both the parties to amend their pleadings and adduce oral evidence to the High Court through the District Court. This was indeed a most unusual order made which hardly justified the exercise of the extraordinary, but limited jurisdiction possessed by the High Court under Article 227 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the certification of findings by the District Court, allowed himself to be persuaded to examine the correctness of these findings under the guise of the argument that the District Court in reaching these findings misread a part of the evidence, ignored certain other part of it and drew inferences and conclusions which were wholly unjustified and the findings were in any event, unreasonable and perverse. The learned Judge went through the entire evidence on record and taking the view that a part of it was misread and a part ignored, he in effect and substance reappreciated the whole evidence in an elaborate judgment running over sixty pages and on such reappreciation, set aside the findings of fact reached by the District Court and held that the dominant or primary user of the shop by the appellant was for residence and not business and on this view confirmed the decree for eviction passed against the appellant under clause (k) of sub-section (1) of Section 13. The appellant being aggrieved by the judgment of the learned Judge filed the present appeals after obtaining special leave from this Court. There were two contentions urged on behalf of the appellant in support of the appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell settled by the decision of this Court in Waryam Singh v. Amarnath, 1954 SCR 565 =- ( AIR 1954 SC 215) that the: ... ,power of superintendence conferred by Article 227 is as pointed out by Harries, C.J, in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (S.B.) to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. This statement of law was quoted with approval in a subsequent decision of this Court in Nagendra Nath Bora v. THE Commr. of Hills Division 1958 SCR 1240 = (AIR 1958 SC 398) and it was pointed out by Sinha, J. as he then was, speaking on behalf of the Court in that case: It is thus, clear that the powers of judicial interference under Art. 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Art. 226 of the Constitution. Under Art. 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Art. 227 of the Constitution, the power of interference is limited to seeing that the tribunal func ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectness of the findings of fact arrived at by the District Court. The limited power of interference which the High Court possessed under the Art. 227 was to see that the District Court functions within the limits of its authority and so far as that was concerned, there was no complaint against the District Court that it transgressed the limits of its authority. It is true that the High Court claimed to interfere with the findings of the fact reached by the District Court on the ground that the District Court had misread a part of the evidence and ignored another part of it but that was clearly outside the jurisdiction of the High Court to do under Art. 227. This is precisely what the High Court did in Nagendra Nath Bora's case, 1958 SCR 1240 = (AIR 1958 SC 398) (supra) while setting aside the orders of the Appellate Authority under the Excise Act and that was disapproved by this Court in clearest terms. The exercise of the power of interference in that case was sought to be justified by reference both to Articles 226 and 227. So far as the exercise of jurisdiction under Art 226 is concerned, this Court pointed out that a writ or order of Certiorari could be issued by the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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