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Judgment
P.K. Misra, J.—The applicant in the present Civil Review has been found to be the landlord in respect of the disputed premises. He had filed a case under the Orissa House Rent Control Act for eviction of present opposite party No. 1. The House Rent Controller while negativing the contention of the present petitioner regarding alleged subletting and damage to the disputed premises, passed an order of eviction on the grounds that the tenant had wilfully defaulted in payment of rent and the landlord required bona fide the house for his occupation. The appeal of the tenant having been dismissed by the appellate authority, OJC No. 3721 of 1990 was filed in this Court. The said writ application was allowed by judgment dated 29.7.1991 and the order of eviction was set aside on the finding that there was no wilful default in payment of rent.
After the Civil Review was admitted, notice was published in newspaper regarding the hearing of the Civil Review. However, in spite of such publication, there is no appearance on behalf of the tenant-opposite party No. 1 in the review petition.
In this review petition, the counsel for the petitioner has submitted that this Court proceeded on a wrong assumption that the appellate authority had reversed the finding of the House Rent Controller regarding bona fide requirement and because of the said erroneous assumption, the order of eviction has been quashed without considering the question of eviction on the ground of bona fide requirement. The original records of the House Rent Controller and the appellate authority have been called for. After going through the original records, particularly the judgment of the appellate authority as well as the documents filed in this Court in the connected OJC, the submission of the counsel for the petitioner appears to be justified.
There is no dispute that the House Rent Controller has passed an order of eviction on the ground of wilful default as well as on the ground of bona fide requirement. The question of bona fide requirement was considered by the appellate authority in paragraph-9 of its judgment. For convenience, the finding of the appellate authority as available from the original judgment in the lower Court record is quoted hereiinder:
"9. There is no dispute about the position that the expression ''requires the house in good faith'' occurring in the said section connotes something more than a mere desire though it may not amount absolute necessity. The requirement in good faith obviously implies honest intention on the part of the landlord. Therefore, the burden lies on the landlord to place materials before the Court for consideration as to whether his requirement was honest and bona fide. Here in the application the petitioner has mentioned that he needs the disputed premises for his son who wants to open a shop in stationery articles. The petitioner examined himself as P.W. 1 and his son as P.W. 2. The evidence of the witnesses discloses that the petitioner needs the disputed house for occupation of his un-employed son who wants to start a business in stationery goods. There is no material on record to show that the requirement was not bona fide. The landlord is the best judge of his own choice on this score. From the materials as stated hereinbefore, I am to hold that the finding recorded by the House Rent Controller is based on xx evidence."
Unfortunately, however, in the judgment of this Court, it was observed:
"3..... With regard to the bona fide use and occupation of the premises by the opposite party, though the House Rent Controller held in favour of the landlord, the lower appellate Court reversed the finding and held that the landlord had failed to prove the bona fide requirement of the premises for his own occupation." It is apparent that the observation contained in the judgment to the effect that "the lower appellate Court reversed the finding regarding bona fide requirement, is a mistaken assumption which appears to have vitiated the judgment of this Court.
It is apparent that such error crept into the judgment of the High Court primarily because of the typographical mistake contained in the certified copy of the judgment of the appellate Court which had been filed as Annexure-2. In paragraph-9 of the judgment of the appellate Court, the last sentence as appearing in the certified copy of the judgment which had been filed as Annexure-2 was as follows:
"........From the materials as stated herein before, I am to hold that the finding recorded by the House Rent Controller is based on no evidence."
When compared with the original judgment of the appellate Court as contained in the L.C.R., it becomes clear that the word "no" occurring in the last line, extracted above, had been cancelled by typing "xx" on it, but it appears that in the certified copy the said word "no" continued. In fact, a perusal of paragraph 9 of the judgment of the appellate Court clearly indicates that in view of the discussion contained therein, the word "no" if retained in paragraph 9 would become incongruous as the preceding discussion clearly indicates that the appellate Court was confirming the finding of the House Rent Controller. It may be that the tenant who had filed the writ petition was himself misled by such typographical mistake contained in the certified copy as he had asserted in the writ petition that the story of bona fide requirement had been negatived by the appellate Court.
It is, of course, true that it was observed in the judgment of his Court :
"4. On going through the materials on record we are also satisfied that a case of bona fide requirement for his own occupation has not been made out. Therefore, the finding of the lower appellate Court in that regard cannot be disturbed......"
The aforesaid observation in the judgment proceeded on the assumption that the lower appellate Court had, in fact, reversed the finding of the House Rent Controller regarding bona fide requirement. The finding of the lower appellate Court which has been quoted earlier clearly indicates that as a matter of fact, the appellate authority has referred to the materials on record and reiterated the finding of the House Rent Controller. Since the High Court proceeded on the wrong assumption regarding the finding recorded by the lower appellate Court, there is no escape from the conclusion that there is an error of law apparent on the face of the record, as the High Court has proceeded on an assumption regarding the finding of the appellate authority which on the face of it appears to be an error of record.
The next question is as to whether the finding regarding bona fide requirement as rendered by the House Rent Controller and affirmed by the lower appellate Court, could have been successfully assailed in the writ application. Apart from the fact that the writ petitioner had not specifically challenged the findings on this aspect (obviously because the tenant himself was under a wrong impression), the finding regarding bona fide requirement as rendered by the House Rent Controller and confirmed by the appellate authority was essentially a question of fact. The finding was based on discussion of relevant materials on record. The appellate authority had referred to the evidence of P.Ws, 1 and 2 and come to a. conclusion that the requirement was bonafide. However, under a wrong '' impression that the appellate authority had negatived the contention of bona fide, requirement, the High Court had observed that the finding of the appellate authority was justified. We have perused the evidence on record as well as the findings of both the authorities below and are satisfied that the finding regarding bonafide requirement could not have been challenged in the writ application within the limited sphere of interference envisaged in a writ of certiorari. For the aforesaid reasons, we review the judgment of this Court and observe that since the finding of bona fide requirement was not successfully assailed by the tenant, the writ application was liable to be dismissed and the order of eviction based on the ground of bona fide requirement was liable to be confirmed.
In the result, the Civil Review is allowed. O.J.C.No. 3721/ 90 is dismissed and the order of eviction on the basis of bona fide requirement of the landlord is confirmed. We grant six months'' time to the tenant-opposite party to vacate the disputed premises. Since there is no appearance on behalf of tenant-opposite party No. 1 in this Civil Review application, there would be no order as to costs.
D.M. Patnaik, J.
I agree.