Thursday, 17 May 2018

Whether it is necessary for court to frame issue of comparative hardship?

At the outset, I have no hesitation in observing that the manner in which the appeal has been disposed of is wholly unsatisfactory and unacceptable by any standards. On reading the impugned judgment, the impression gathered is that the learned Judge has summed up the entire controversy in a cryptic way. What is interesting to note is that in para No. 13, the Appellate Court has adverted to all the 23 decisions cited across the bar on both sides without even briefly indicating the relevance of those decisions or that he was guided by the principle in any particular decision; and, concluded that the issue of reasonable and bona fide requirement will have to be answered against the petitioner and in favour of the respondents. Be that as it may, what is still surprising to note is that the Appellate Court has not even thought it appropriate to frame much less decide the issue of comparative hardship which it was obliged to do in view of the mandate of section 13(2) of the Act as it was inclined to grant decree for possession of the suit premises in favour of the respondents on the ground of reasonable and bona fide requirement. Suffice it to mention that the decision of the Appellate Court which is subject matter of challenge before this Court cannot stand the test of judicial scrutiny.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6005 of 2002 with C.A.S.T. No. 39237 of 2002

Decided On: 22.10.2002

 Suresh D. Zamakade Vs. Narayandas V. Shah and Ors.

Hon'ble Judges/Coram:
A.M. Khanwilkar, J.

Citation: 2002(1) ALLMR 312: 2003(2) BomCR 830



1. The above numbered civil application is allowed by consent. Since heirs of deceased respondent No. 4 are already mentioned in the cause title, no further amendment is necessary.

2. Rule in writ petition. Mr. Anturkar waives notice for all the respondents. Petition heard for final disposal forthwith, by consent.

3. This writ petition takes exception to the judgment and decree passed by Shri U.N. Dikkatwar, 4th Additional District Judge, Satara dated 31-7-2002 in Regular Civil Appeal No. 209/2000.

4. The respondents filed suit for possession of the suit premises on the ground of bona fide and reasonable requirement under section 13(1)(g) of the Bombay Rent Act before the Civil Judge, J.D., Satara being R.C.S. No. 766 of 1966. The trial Court after considering the relevant materials on record and considering the rival contentions was pleased to dismiss the suit. The respondents carried the matter in appeal before the District Court being Regular Civil Appeal No. 209 of 2000. The Appellate Court by the impugned judgment and decree has partly allowed the appeal and ordered delivery of possession of the suit premises to the respondents.

5. At the outset, I have no hesitation in observing that the manner in which the appeal has been disposed of is wholly unsatisfactory and unacceptable by any standards. On reading the impugned judgment, the impression gathered is that the learned Judge has summed up the entire controversy in a cryptic way. What is interesting to note is that in para No. 13, the Appellate Court has adverted to all the 23 decisions cited across the bar on both sides without even briefly indicating the relevance of those decisions or that he was guided by the principle in any particular decision; and, concluded that the issue of reasonable and bona fide requirement will have to be answered against the petitioner and in favour of the respondents. Be that as it may, what is still surprising to note is that the Appellate Court has not even thought it appropriate to frame much less decide the issue of comparative hardship which it was obliged to do in view of the mandate of section 13(2) of the Act as it was inclined to grant decree for possession of the suit premises in favour of the respondents on the ground of reasonable and bona fide requirement. Suffice it to mention that the decision of the Appellate Court which is subject matter of challenge before this Court cannot stand the test of judicial scrutiny.

6. The proper course in such a situation, as is fairly conceded by Mr. Anturkar for the respondents, is to remand the case to the Appellate Court for re-examination on merits in accordance with law. I hope and trust that the learned Judge, will, after remand, be well advised to advert in his judgment to the relevant pleadings, oral and documentary evidence on record as well as the rival contentions; and only after analyzing the same would proceed to record his findings necessary to answer the matter in issue, as is expected of any Court of first appeal, as a final fact finding Court. Indubitably, the judgment should avoid prolixity and ought to be brief. But, it cannot be sustained if it is muddled or cryptic such as in the present case. It has become necessary to draw the attention of the Appellate Court to section 107(2) of the Code of Civil Procedure which obligates it to perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction or the trial Court. As the powers and duties of the Appellate Court are co-extensive with that of the trial Court, proper scrutiny of the materials on record and its reasoning in judgment is imperative, as its decision on finding of fact is binding on the High Court. The tier system of judiciary is to eliminate the possibility of any error in the decision making process which is likely to cause injustice to any party. The role of the Appellate Court assumes great relevance in this dispensation, for its decision on finding of fact is final. Moreover, in one sense the Appellate Court is the final Court for many litigants. Not only because of the un-affordability of litigation costs before the higher forum but, more so, because the scope of interference of the High Court in writ jurisdiction is circumscribed and limited. On the other hand, if the judgment of the Appellate Court were to be proper and complete in all requirements then it would obviously dissuade this Court to interfere in exercise of writ jurisdiction. Be that as it may, in this case, the trial Court had rejected the plea taken by the plaintiff for reasons recorded in its decision. If the learned Additional District Judge is inclined to take a different view, then it is expected of him that he would deal with each of the reason which had weighed with the trial Court to negate the plaintiff's case. This is the minimum which is expected from any Court of appeal which reverses the decision of the trial Court. It is only then that the Court of Appeal can be said to have legitimately reversed the decision of the trial Court. To observe sobriety I would only conclude that the impugned judgment cannot be countenanced.

7. In the circumstances, the impugned judgment and decree is set aside and the matter is sent back to the Appellate Court for reconsideration of the case on its own merit in accordance with law. Needless to mention that the Appellate Court shall decide the appeal without being influenced by any of the observations made in the impugned judgment and decree which is hereby set aside. I have not adverted to the rival contentions pressed into service before this Court as I have already indicated above that the matter requires to be reconsidered by the Appellate Court afresh. All questions are left open. Since the ground pressed into service by the respondents for possession of the suit premises is reasonable and bona fide requirement, the Appellate Court shall decide the matter as expeditiously as possible preferably within six months from the receipt of writ of this Court.

8. Rule made absolute in the above terms with no order as to costs.

9. The copy of this order be forwarded to the Registrar of this Court for being placed before the appropriate authority alongwith the copy of the impugned order, for necessary action.

All the concerned to act on the copy of this order duly authenticated by the Sheristedar of this Court.

Rule made absolute.




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