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Gangabisan Panalal Joshi And Others v. Dattatraya Chandrasa Bilade And Another

Bombay High Court

Dec 1, 1983

Judgment

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Analytical Summary of the Provided Opinion

Factual and Procedural Background

The text is an appellate opinion addressing challenges to findings recorded by a learned Assistant Judge (the Court of first instance). The opinion refers to factual findings and evidence recorded in paragraphs 1 to 6 of the judgement (these paragraphs are not reproduced in the provided text). The principal subject-matter concerns a landlord's claim for possession on the ground of personal requirement under Section 13(1)(g) of the Bombay Rent Act and related questions under Section 13(2) (comparative hardship). The appellant, represented by Mr. Abhale, attacked certain findings of the Assistant Judge and the Appellate Judge's disposition of those issues; the appellate bench examines legal principles and cited authorities before disposing of the petition. The operative order recorded at the end of the opinion is "Petition dismissed."

Legal Issues Presented

Whether the finding of the Court of first instance that the landlord (third plaintiff) had not proved a bona fide and reasonable requirement of the suit premises under Section 13(1)(g) of the Bombay Rent Act was liable to be interfered with on appeal.
Whether the Appellate Court should be slow to interfere with a trial Court's finding on the comparative balance of hardship under Section 13(2) of the Bombay Rent Act, or whether the Appellate Court has full powers under Section 29 of the Bombay Rent Act to re‑examine such findings.

Arguments of the Parties

Appellant's Arguments (Mr. Abhale)

He contended there was no warrant for interfering with the finding of fact recorded by the Court of first instance regarding the landlord's claim.
He relied on Fitter Peera Saheb v. K. Balchandra Rao (AIR 1972 Mys 14) for the proposition that, ordinarily, when an owner says he requires premises for his own use, the Court should start with a presumption that the landlord's claim is true and that a mere denials by the tenant is insufficient to rebut that presumption.
He further argued that the Court of Appeal should not lightly interfere with a trial Judge's decision on the balance of hardship because that is primarily a question of fact (relying on Kishinchand Murjimal v. Bai Kalavati Hansraj Dwarkadas (AIR 1973 Bom 46) and related passages).

The opinion does not set out detailed counter-arguments by other named parties in the manner of an adversarial pleading summary; the court's own findings concerning the absence of the landlord's evidence and its assessment of authorities occupy the bulk of the text.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Fitter Peera Saheb v. K. Balchandra Rao, AIR 1972 Mys 14	The proposition that ordinarily, when an owner states he requires premises for his own use, the Court should start with a presumption that the landlord's claim is true; mere tenant denial is insufficient to rebut that presumption.	The court stated it was unable to accept this proposition and treated it as contrary to the approach in M.M. Quasim (supra); the opinion rejects the broad presumption urged by this decision.
M.M. Quasim v. Manohar Lal Sharma, AIR 1981 SC 1113	Describes the approach under Rent Acts: the right of re-entry has been fettered by statute; personal requirement is one of the statutory grounds for re-entry and must be properly proved.	The court relied on this Supreme Court authority to reject the Fitter Peera Saheb proposition and to emphasise that statutory safeguards constrain the landlord's claim of personal requirement.
Nanalal Goverdhanlal and Co. v. Samrutabai Lilachand Shah, 1980 Mah LJ 867 (AIR 1981 Bom 1)	Holds that bona fide requirement is primarily a state of mind and must be deposed to by the person who requires the premises (the landlord); the duty to depose cannot be delegated.	The court applied this principle to the facts: the third plaintiff (the owner/landlord) did not testify or seek to be examined on commission, and therefore the bona fide requirement was not proved.
Kishinchand Murjimal v. Bai Kalavati Hansraj Dwarkadas, (1972) 74 Bom LR 623 (AIR 1973 Bom 46)	States that an Appeal Court will ordinarily be slow to interfere with a trial Judge's decision on questions like the balance of hardship since those are primarily questions of fact.	The court analysed and distinguished this case, observing that its conclusion rested on Sims v. Wilson and that the limitation urged by Kishinchand Murjimal is not applicable to appeals under Section 29 of the Bombay Rent Act; the court rejected the contention that appellate interference should be limited on that ground.
Sims v. Wilson, 1946 (2) All ER 261	Contains the statement that a Judge's decision on a question of fact is unassailable where there was evidence to support it; used in context to limit interference with findings of fact.	The court read Sims narrowly: confined its principle to the facts of that case and held it does not establish a general rule preventing an appellate court from re-examining findings of fact in appeals governed by a broader statutory grant of power.
Ahsanullah Shah v. Ziauddin, (1937) 39 Bom LR 761 (PC)	Addresses the appellate function and supports the proposition that an appellate court may examine findings of fact as well as law in appropriate circumstances.	The court cited this authority to support its view that an Appellate Court should examine findings of the trial Court when warranted and may overrule them if clearly wrong on full consideration of the material.
State of Kerala v. K.M.C. Abdulla & Co., AIR 1965 SC 1585	Explains the essential distinction between an appeal and a revision; an appeal is a continuation of proceedings and may review evidence subject to statutory limits, whereas a revision generally does not include a power to review evidence.	The court relied on this distinction to demonstrate that an appeal (here under Section 29) carries a wider power to re-examine evidence than a revisional proceeding.
Laxminarayan v. Returning Officer, AIR 1974 SC 66	States that although the appellate court is confined to evidence on record and cannot see demeanour, it may interfere with a trial Court's finding if the trial Court overlooked material features or if the balance of probabilities as to credibility favors interference.	The court cited this to acknowledge the limited deference owed to trial findings based solely on demeanour, while reinforcing the appellate court's duty to interfere where the balance of probabilities or overlooked material features justify intervention.
Pandit Bhullan v. Sarvodaya Vita Kavelu Kumbhar Ram Sahakari Audhogik Utpadak Sanstha, Bina, 1978 Mah LJ 276 (AIR 1978 Bom 259)	Affirms that an appellate court's jurisdiction can be coextensive with that of the trial Court and that the appellate Court can assess evidence independently within the scope of the appeal.	The court used this authority to support the proposition that an appeal is a proceeding in which the appellate Court can go into questions of fact as well as law and assess the evidence itself independently.

Court's Reasoning and Analysis

The court's reasoning proceeded along two linked axes: (A) the proof of the landlord's bona fide requirement under Section 13(1)(g), and (B) the scope of appellate interference with a trial Court's finding on comparative hardship under Section 13(2) and Section 29 of the Bombay Rent Act.

A. Proof of Landlord's Bona Fide Requirement (Sec. 13(1)(g))

The opinion rejected the broad presumption invoked from Fitter Peera Saheb that a landlord's unqualified statement of requirement should be presumptively accepted and that a tenant's mere statement cannot rebut it. The court found that proposition inconsistent with the Supreme Court's approach in M.M. Quasim, which emphasises statutory restrictions on re-entry.
The court relied on Nanalal Goverdhanlal and Co. v. Samrutabai Lilachand Shah to state the legal position that bona fide requirement is primarily a state of mind and must be deposed to by the person (the landlord) who requires the premises. The landlord cannot delegate the duty to depose even if he can delegate the conduct of the case.
Applying that principle to the facts before it, the court noted that the third plaintiff (the owner) did not testify nor sought to be examined on commission to prove the bona fides of the requirement. Consequently, on that ground alone the Court of first instance's finding that bona fide and reasonable requirement was not proved could be sustained.

B. Scope of Appellate Review on Comparative Hardship (Sec. 13(2) and Sec. 29)

Mr. Abhale argued that appellate courts should be slow to interfere with trial Judges on the balance of hardship because it is primarily a question of fact (relying on Kishinchand Murjimal). The court examined the authority relied upon.
The court analysed Sims v. Wilson (the authority underlying the Kishinchand observation) and held that Sims must be confined to its facts. In Sims the appellate intervention was restricted because the statutory framework did not permit full appellate re‑examination of facts.
The court then examined the statutory position under Section 29 of the Bombay Rent Act and concluded that there is no restriction on the powers of an Appeal Court while deciding the correctness of a decision of the Court of first instance; the powers under Section 29 are as wide as those under Section 96 of the Civil Procedure Code. Thus, an Appellate Court is entitled (and in the court's words, it is the duty) to examine every finding — whether of fact or law — and to make up its own mind on the material.
The court qualified this broad power by recognising an important limitation: where a trial Court's finding depends on observation of demeanour and credibility assessed in person, such findings should not be lightly interfered with. However, where a finding does not depend on demeanour or where the appellate court, on a full consideration of material, is satisfied the trial Court is clearly wrong, it should not hesitate to overrule.
On this basis the court rejected Mr. Abhale's contention that the Appellate Judge erred in upsetting the trial Court's finding on the question of comparative hardship.

Holding and Implications

Holding: Petition dismissed.

Implications:

The court upheld the principle that a landlord seeking possession under Section 13(1)(g) must personally depose to the bona fide requirement; the absence of such testimony justified the trial Court's finding that the requirement was not proved.
The court held that under Section 29 of the Bombay Rent Act an Appellate Court has wide powers to re-examine findings of the trial Court (both of fact and law) and need not be unduly constrained by the proposition that appellate interference on balance of hardship should be "slow." The court nevertheless recognised deference where findings depend on witness demeanour observed by the trial Court.
No broader or novel precedent beyond the application and reconciliation of cited authorities is announced; the direct practical effect recorded in the opinion is the dismissal of the petition. The opinion does not state that a new legal principle was laid down beyond its application of existing authorities to the facts before it.

Note: This summary is confined strictly to the material contained in the provided opinion excerpt. Where factual paragraphs or fuller contextual detail were referenced but not reproduced in the excerpt (paras 1–6 and the remainder of the judgment), those materials were not assumed or inferred and therefore are not summarized here.

Show all summary ...

1. (After stating the facts and findings of the lower Court in paras 1 to 6, His Lordship proceeded).

7. Mr. Abhale has assailed the finding of the learned Assistant Judge and has contended that there was no warrant for interfering with the finding of fact recorded by the Court of first instance. In support of his contention he relied upon a judgment of Mysore High Court, as it then was, in Fitter Peera Saheb v. K. Balchandra Rao, AIR 1972 Mys 14. It has been mentioned in this judgment that in ordinary circumstances when the owner says that he requires his premises for his own use and occupation, the Court must start with a presumption that the landlord's claim is true. It has been further mentioned that a mere statement of the tenant that the case of the landlord is false is not sufficient to rebut that presumption. I am unable to accept the proposition contained in this judgment. This is contrary to what has been said by the Supreme Court in M.M Quasim v. Manohar Lal Sharma, AIR 1981 SC 1113, about the approach to be adopted by the Courts under, the Rent Acts. The Supreme Court has observed (at pp. 1120-1121):

“The time honoured notion that the right of re-entry is unfettered and that the owner landlord is the sole Judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter. One such ground is of personal requirement of landlord.”

8. In the present case, as I have already mentioned above, the learned Assistant Judge has held that the house of which the suit premises form part is not of the ownership of the first plaintiff for whose use and occupation the suit premises are being sought. The third plaintiff, who is the owner of the house and, therefore, the landlord of the defendant, could have, as the learned Assistant Judge has said, claimed possession of the suit premises on the ground that the, same are required for the use and occupation of her son. But unfortunately in the present case the third plaintiff has not stepped into the witness-box nor has she offered to get examined on commission with a view to prove the bona fide requirement of the suit premises. As has been held in Nanalal Goverdhanlal and Co. v. Samrutabai Lilachand Shah, 1980 Mah LJ 867 : (AIR 1981 Bom 1), the bona fide requirement is in the first place a state of mind though it may be something more. It must, therefore, be deposed to by the person who is requiring the premises under Sec. 13(1)(g) namely, the landlord. If the landlord does not step into the witness-box to bring before the Court legal evidence for proving his requirement, then it cannot be said that he reasonably and bona fide requires the premises as mentioned in Section 13(1)(g). The landlord can delegate the authority to conduct a case but he cannot delegate the duty to depose. On this ground also the finding given that the landlords' bona fide and reasonable requirement of the suit premises has not been proved, could be sustained.

9. However, I proceed to examine the further criticism which Mr. Abhale has levelled against the judgment of the Appellate Judge in so far as that judgment relates to the finding under S. 13(2) of the Bombay Rent Act. According to Mr. Abhale, the Court of Appeal should not lightly interfere with the finding given by the Court of first instance on the question of comparative hardship. In support of this proposition he has relied upon the judgment in Kishinchand Murjimal v. Bai Kalavati Hansraj Dwarkadas, (1972) 74 Bom LR 623 : (AIR 1973 Bom 46 at p. 50), wherein it is mentioned as follows:—

“It is well settled that an Appeal Court will be ordinarily slow to interfere with the decision of the trial Judge on questions like the balance of hardship, for this is primarily a question of fact. To succeed the appellant must show that the trial Judge misdirected himself on a question of law or that he has based his judgment on some finding of fact on which there was no evidence. If in drawing up the statutory balance-sheet of hardship, there is some evidence of hardship on each side the decision of the trial Judge must be normally final. See Sims v. Wilson (1946 (2) All ER 261) referred to above.”

10. The learned Judge delivering the judgment in Kishinchand Murjimal's case has not referred to any binding judgments on the basis of which it could be said that it is well settled in law that an Appeal Court will be ordinarily slow to interfere with the decision of the trial Judge on the question of balance of hardship for this is primarily a question of fact. I have examined Sims v. Wilson (1946-2 All ER 261). There the Court of Appeal was considering the appeal under the County Courts Act in a proceeding instituted for the possession of the tenanted premises. In the concluding part of the judgment of Morton, L.J it has been stated as follows:—

“In my view, the decision of the Judge on this question of fact is unassailable. There was evidence upon which he could properly come to the conclusion at which he arrived and I cannot find that any misdirection is established.” (Emphasis provided) Reading the said judgment in the light of the provisions of the County Courts Act, one notices that there was no appeal to the High Court against the order passed by the County Judge under the Rent Act on a question of fact. In the appeal preferred in these circumstances the Court of Appeal could only interfere with a finding if it was the result of a misdirection or the result of erroneous application of law.

11. Under Sec. 29 of the Bombay Rent Act there is no restriction whatsoever on the powers of an Appeal Court while deciding the correctness or otherwise of a decision given by the Court of first instance. The powers of the Appeal Court under Sec. 29 must be deemed to be as wide as the powers of the Appeal Court under S. 96 of the Civil P.C In such an appeal it is not only permissible but the duty of an Appeal Court as a final Court of facts to examine every finding given by the Court of first instance — whether that finding is on a question of fact or on a question of law. One cannot see how the Court of Appeal could be slow in interfering with finding of fact recorded by the Court of first instance. Where, however, a finding of fact is recorded by the Court of first instance after seeing the witnesses and watching their demeanour, that finding in so far as it depends on the credibility of oral evidence should not be lightly interfered with. The law, however, gives a right of appeal from the judgment of a trial Court on questions of fact as well as on questions of law and the Court of Appeal has to make up its own mind after carefully weighing and considering the judgment of that Court, and if, on a full consideration of all the material it is satisfied that judgment is clearly wrong, it should not shrink from overruling it. (See Ahsanullah Shah v. Ziauddin, (1937) 39 Bom LR 761 (PC)).

12. To accept the limited nature of the powers suggested by Kishinchand Murjimal's case is to obliterate the distinction between an appeal and a revision. The Supreme Court has pointed out in State of Kerala v. K.M.C Abdulla & Co., AIR 1965 SC 1585:

“There is an essential distinction between an appeal and a revision. The distinction is based on differences implicit in the said two expressions. An appeal is a continuation of proceedings; in effect the entire proceedings are before the Appellate Authority and it has power to review the evidence subject to the statutory limitations prescribed. But in the case of a revision, whatever powers the revisional authority may or may not have, it has not the power to review the evidence unless the statute expressly confers on it that power. That limitation is implicit in the concept of revision.”

13. In Laxminarayan v. Returning Officer, AIR 1974 SC 66, it was pointed as follows (para 55):—

“While the trial Court has not only read the evidence of witnesses on record but has also read their evidence in their faces, looks and demeanour, the Appellate Court is confined to their evidence on record. However, the Appellate Court may interfere with a finding of fact if the trial Court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial Court.”

An appeal is a creature of Statute and the powers and jurisdiction of Appellate Court must be circumscribed by words of the statute itself. At the same time a Court of Appeal is a “Court of error” and its normal function is to correct the decision appealed from and its jurisdiction must be coextensive with that of the trial Court. This has been pointed out by a Division Bench of this Court in Pandit Bhullan v. Sarvodaya Vita Kavelu Kumbhar Ram Sahakari Audhogik Utpadak Sanstha, Bina, 1978 Mah LJ 276 : (AIR 1978 Bom 259). Proceeding further it has been pointed out:—

“It cannot and ought not to do something which the trial Court could not do. An appeal is a proceeding in which the question is whether the order appealed from was right on the material placed before the lower Court. The Appellate Court therefore can go into question of fact as well as of law and assess the evidence itself independently.”

14. I have cited above only some of the Judgments which show unmistakably that where a finding is not depending upon observation of the demeanour of the witnesses it can be subject matter of examination by the final Court of facts independent of what the trial Court has said. I do not think that the Appeal Court is in law bound by the finding given by the trial Court or is otherwise precluded from examining the correctness of the said finding. Since the observations in Kishinchand Murjimal's case were made on the basis of the judgment in Sims v. Wilson and since I have shown that the said judgment must be confined to the facts of that case, I am of the opinion that there is no warrant for the proposition that in an appeal under Sec. 29 of the Bombay Rent Act the Appeal Court should be slow to interfere with the decision of the trial Court on the question of balance of hardship. I, therefore, reject the contention of Mr. Abhale that the learned Appellate Judge has committed an error in upsetting the finding given by the Court of first instance on the question of hardship.

15. (The rest of the judgment is not material to this report).

Petition dismissed.