Smt. Jayabai vs Smt. Hemlata Hiralal and Others

D.K. Deshmukh, J.—Rule. By consent of parties, Rule made returnable forthwith and heard finally.

This is a tenants'' petition filed under Article 227 of the Constitution of India challenging the judgment passed by the Appeal late Bench of the Small Causes Court at Bombay in Appeal No. 715 of 1985, on 27.11.1996. The appeal was filed by the petitioner-tenants against the judgment and decree passed by the Judge, Small Causes Court, Bombay, on 21.9.1985, in R.A.E. Suit No. 487 of 1977, filed by the respondant-landlords.

The petitioner-tenants are in occupation of 3 rooms in the suit building. The trial Court has passed a partial decree which reads as under:

Defendants are hereby directed to quit, vacate and hand over peaceful and vacant possession of rooms described as ''A'' and ''B'' on the sketch Ex.K. Defendant No. 3 is entitled to retain room described as ''C� and attached nhani or bathroom with him. Plaintiffs to approach the appropriate court forgetting the standard rent fixed in respect of said room ''C� alone with nhani or bathroom within 2 months from to-day.

This partial decree of eviction against the tenant-petitioners was challenged in appeal. The Appellate Court, after considering the material on record has dismissed the appeal and confirmed the decree passed by the trial Court.

The only contention that was urged before me by Shri Rane, learned Counsel for the defendant-petitioners is that during the pendency of the appeal before the Appellate Court, an affidavit was filed bringing on record certain developments relevant for the purpose of deciding the appeal. Shri Rane, relying on the judgment of the Supreme Court in the case of Ramesh Kumar Vs. Kesho Ram, urged that in view of these subsequent developments, it was the duly of the Appellate Court to take additional evidence in the matter.

Now, it is to be seen (hat the Supreme Court in paragraph 6 of its judgment in Ramesh Kumar''s case has observed thus :

The submissions of learned Counsel are only partly correct. While it is true that a distinction must he made between pleading and proof, the further submissions that these must necessarily be in two successive sequential stages need not always be so and particularly when dealing with pleas of subsequent events in appeals and revisions. If the allegations of facts made in support of such a plea arc denied then alone the question of their proof in an appropriate way arises. If those allegations of facts are admitted, there is no need to prove what is admitted or must be deemed to be admitted. There can be admissions by non-traverse. The High Court proceeded to accept the allegations as proved presumably in view of the fact that appellant''s learned Counsel did not even appear, let alone challenge the allegations. Hut there might also be cases in which, having regard to the nature of the circumstances, the Court may insist upon proof independently of such admission by non-traverse.

If the subsequent developments, which according to Shri Rane have taken place in the present ease, are taken into consideration, it is to be seen that one of the developments pleaded by the petitioners was that there were two other suits filed by the landlords against tenants who were occupying one room each in the suit building. According to the tenants affidavit, the Respondents have received possession of one room and in relation to the other room, though an appeal is pending, according to the tenants, there is collusion between that tenant and the Respondents. The other subsequent development that according to Shri Rane has to be taken into consideration is that three daughters of the landlady have married. Perusal of the judgment of the Appellate Court shows that all these developments have been taken into consideration by the Appellate Court. The Appellate Court has observed that the landlady has admitted that one room previously occupied by tenant has become available to the landlady. She has slated that, as stated by the tenants themselves, the appeal in relation to the other room in pending and she has denied any suggestion of collusion between that tenant and the landlady. Now, though the allegation of the petitioners that there is collusion between the other tenant and the landlady was denied by the landlady, the fact remains that the appeal preferred by the tenant is pending in the Appellate Court and the landlady has not yet received possession of the room. Therefore, the admission of the landlady has been taken into consideration by the Appellate Court. So far as the other subsequent development, namely the marriage of 3 daughters, is concerned, in my opinion, Shri Rane is not justified in contending that the Appellate Court should have called for additional evidence. It is to be noted here that before the marriage of the three daughters, the total number of the members of the family of the landlady, as admitted by defendant No. 3, was 15 and the total area in occupation of the landlady was 300 sq.ft. Only one room has been added to the 300 sq.ft. during the pendency of the appeal. Considering that the total number of members of the family of the landlady now is 12. It cannot be said that an area of 300 sq.ft. is adequate for their use and occupation. Learned Counsel for the respondents slated before me that, the one room according to the Appellate Court, has become available has not really been available to the landlady. In my opinion, assuming that the respondents have an area of 600 sq.ft for their occupation - taking into consideration the one more room that has been vacated by the tenant, then also, considering the number of members of the family of the landlady, it cannot be said that the landlady does not bona fide need the the suit premises. No other contention was urged on behalf of the petitioners before me.

It cannot be forgotten that this is a petition under Article 227 of the Constitution of India. The Supreme Court in its judgment in the case of Mohd. Yunus Vs. Mohd. Mustaqim and Others, , has observed :

The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited ''to seeing that an inferior Court or Tribunal functions within the limits of its authority'' and not to correct an error apparent on the face of the record, such less an error of law.

Thus, it is to be seen that according to the judgment of the Supreme Court, this Court can interfere with the finding of fact recorded by subordinate Courts only in case the finding suffers from any error of jurisdiction or if the finding is recorded in breach of the principles of natural Justice. In my opinion, both the Courts below have appreciated the material on record including the subsequent developments and the orders impugned in the petition do not call for any interference at the hands of this Court.

At this stage, the learned Counsel for the petitioners, requests that a reasonable time should be given to the tenants to vacate the suit premises. In the submission of the learned Counsel, time upto 31.12.1997 would be a reasonable time. Learned Counsel for the respondents does not oppose the request. However, he submits that the tenants should be required to submit an undertaking to this Court in the usual form. In this view of the matter, therefore, it is directed that the partial decree of eviction passed against the tenants shall not be executed till 31st December, 1997 subject to the petitioners submitting an undertaking to this Court in the usual form within a period of two weeks from today. Failure of the petitioners to submit the undertaking within the aforesaid period shall entitle the respondents to execute the decree immediately. Rule disposed of accordingly with no order as to costs.