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Mangilal Mishrimal Bafna and Ors. Vs. Nemichand Khetmal Jain and Ors. - (High Court of Bombay) (05 Feb 2018)

No party has any vested right in the forum

MANU/MH/0163/2018

Tenancy

Present revision application challenges the judgment made by the District Judge, (Appeal Court) allowing Civil Appeal instituted by Respondent Nos. 1A, 1B and 1C (tenants), thereby setting aside the judgment and order made by the Civil Judge, Senior Division, (Trial Court), which had ordered eviction of tenants from the suit premises on the ground that, the suit premises were reasonably and bonafidely required by the applicants-landlords; on the ground that tenants had acquired alternate premises; and, on the ground that tenants had carried out permanent alterations to the suit tenanted property.

Evidence on record indicates the nature of permanent changes made by Respondents-tenants with impunity and without permission or consent either from the Appellant-landlord or even the concerned local authority. The findings of fact recorded by the two Courts on this aspect suffer from no perversity and therefore, warrant no interference, particularly, in exercise of revisional jurisdiction.

It is well settled that, when the first appellate Court, on appreciation of evidence, records a finding of fact on a particular issue then, such finding is usually binding on the High Court while hearing a revision against such order. In this case, both the trial court and the appeal court have concurrently recorded finding of fact that the suit tenanted premises were reasonably and bonafidely required by appellants-landlords for residential as well as commercial purpose. The two courts have recorded concurrent finding of fact that the issue of comparative hardship in the present case was liable to be decided in favour of the appellants-landlords. The material on record establishes that the respondents-tenants have acquired ample alternate premises suitable for both residential as well as commercial purpose. The evidence on record establishes that, the landlord had four adult sons out of which, the suit tenanted premises was required for residence as well as business purpose of atleast three adult sons. Similarly, there are concurrent findings of fact on the aspect of permanent changes or alterations undertaken by Respondents-tenants to the suit tenanted premises without the consent of appellants-landlords. There is no perversity in recording such findings of fact and, such findings of fact are not even contrary to the evidence on record. In these circumstances, at the behest of Respondents-tenants, there is no question of interfering with such concurrent findings of fact.

The issue of eviction on the ground of acquisition of alternate premises in terms of Section 13(1) of the Bombay Rent Control Act, 1947 to a great extent is rendered academic because, respondents-tenants are liable to suffer decree of eviction on the ground that the suit tenanted premises are reasonably and bonafidely required by appellants-landlords and further, on the ground that respondents-tenants have undertaken permanent alterations to the suit tenanted premises without the consent of the appellant-landlords. In this case, the evidence on record clearly indicates that respondents-tenants have acquired large premises not only for residential but also for commercial purpose. The concurrent findings of fact in this regard are borne out from the material on record.

In this case, by operation of law, the jurisdiction, which was formerly vested with the Civil Judge, Junior Division, stood vested with the Civil Judge, Senior Division. In these circumstances, there was no necessity of any order for transfer under Section 24 of the Code of Civil Procedure, 1908 (CPC). It is settled position in law that, no party has any vested right in the forum. On basis of such a hypertechnical plea, unsupported by law or authority, the rRspondents cannot attempt to set at naught proceedings which have commenced in the year 1984 and in which the Respondents have participated without any protest. This is not a case of lack of jurisdiction much less, inherent lack of jurisdiction. Accordingly, it is not possible to say that, the decree of the trial Court is a nullity because, there was no order of transfer under section 24 of the CPC made before the Civil Judge, Senior Division, continued with the proceedings in the suit which was originally instituted in the Court of Civil Judge, Junior Division.

The impugned judgment and order made by the District Judge, to the extent it non suits the applicant-landlords is set aside. The judgment made by the Civil Judge, Senior Division, is restored with the modification that, Respondents-tenants are directed to restore possession of the suit tenanted premises and western half portion of the garage to the Appellants-landlords. Revision application is allowed.

Tags : POSSESSION   RESTORATION   BONAFIDE NEED  

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