KALIDAS CHUNLLAL PATEL (DEAD) BY L.RS.versusSAVITABEN & ORS.

                             [2016) 4 S.C.R. 840



A           KALIDAS CHUNlLAL PATEL (DEAD) BY L.RS.
                                      v.
                           SAVITABEN & ORS.
                       (Civil Appeal No.5674 of2007)
8                              JUNE29,2016
    (ABHAY MANOHAR SAPRE AND ASHOK BHUSHAN, JJ.)
         Rent Control and Eviction - Suit by landlord against tenant -
    Claiming money decree towards arrears of rent, notice charges and
    mesne profit - Also seeking eviction on the ground of bonafide re-
c   quirement - During pendency of the suit, provisions of the Rent
    Control Act made applicable to the area where suit house was situ-
    ated - Trial court decreed the suit -Appellate court held that though
    the Act was applicable to the suit property, there was no need to
    remand the case to Rent Tribunal as the requirements under the Act
D   were satisfied - On merit, the appellate court upheld the decree -
    In Revision, High Court remanded the case to appellate court with
    direction to start the case as one under the Act - On appeal, held:
    Findings of the appellate court are on proper appreciation of evi-
    dence and in conformity with the requirements of the Act - There is
    no ground to set aside such finding and the same was binding on
E
    the Revisional Court (High Court) - When the appellate court had
    already examined all the questions, there was no need for the High
    C-0urt to remand the case for deciding the same issues - It was an
    exercise in futility- Bombay Rents (Hotel and Lodging House) Rates
    Control Act, 1947 - s.28.
F
         Jurisdiction - Revisional jurisdiction - Scope of - Held: High
    Court in exercise of its revisional jurisdiction not to i11te1fere with
    finding of fact recorded by appellate court, unless such finding is
    perverse or de hors any legal provision or is contrary to the plead-
    ings or evidence on record.
G        Allowing the appeal, the Court
         HELD: 1. The High Court committed an error in remanding
    the case to the appellate Court. When the first appellate Court,
    on appreciation of evidence, records a finding of fact on a par-

H
                                     840
KALIDAS CHUNILAL PATEL (DEAD) BY L.RS. v. SAVITABEN                        841
                     &ORS.

ticular issue, then such finding is usually binding on the High            A
Court while hearing revision against such order. It is only when
any finding of fact is found to be wholly perverse or de hors any
provision of law or is recorded contrary to pleadings and evi-
dence on record, interference in such finding may arise in appro-
priate cases, but not otherwise. [Paras 26 and 29] [847-D-E; 848-
                                                                            B
B]
     2. In the present case, all the findings recorded by the first
appellate Court are based on proper appreciation of evidence.
These findings are recorded in the light of requirement of provi-
sions of the Bombay Rents (Hotel and Lodging House) Rates
Control Act, 1947, after reversing the fintling of the Trial Court
                                                                            c
on the issue of applicability of the provisions of the Act. There is
no infirmity in any of the findings so as to call for any interference
in this appeal. In the light of findings, namely, that the defen-
dants are defaulters in paying monthly rent and that the plaintiff's
need for residence in the suit house is bona fide and that the              D
defendant was not able to prove greater hardship if the eviction
decree is passed against him, the decree for eviction, arrears of
rent and mesne profit was rightly passed against the defendant in
relation to suit house. Since these findings were rendered in con-
formity with the requirements of the Act, there is no good ground
to set aside these findings. [Para 28] [847-F-H; 848-A]                     E

     3. When the appellate Court had already examined all ques-
tions arising in the case, as if the provisions of the Bombay Rents
(Hotel and Lodging House) Rates Control Act, 1947 are appli-
cable to the suit house and then recorded the findings in plaintiff's
favour, there was no need for the High Court to remand the case             F
again to the appellate Court for deciding the same issues. It was
an exercise in futility and was not called for. Instead, the High
Court should have examined the legality of the findings on mer-
its with a view to find out as to whether the appellate Court was
justified in recording the findings in plaintiff's favour or not. [Paras    G
24 and 25] [847-B-CJ
      Moti Ram v. Suraj Bhan & Ors. (1960) 2 SCR 896;
      Shah Bhojraj Kuverji Oil Mills & Ginning Factory v.
      Subhash Chandra Yogrqj Sin-ha (1962) 2 SCR 159 -
      referred to.                                                          H
842            SUPREME COURT REPORTS                          (2016] 4 S.C.R.


A                             Case Law Reference
         (11)60) 2 SCR 896           referred to              Para 30
         (11)62) 2 SCR 159          referred to               Para 30
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5674 of
B     2007.
          From the Judgment and Order dated 17.06.2005 in Civil Revision
      Application No. 110 of 1994 passed by the High Court of Gujarat at
      Ahmedabad.
           MayurR. Shah, Ms. Kamakshi S. Mehlwal,Advs. for the Appellant.
c
           The Judgment of the Court was delivered by
            ABHAY MANOHAR SAPRE, J. I. This appeal is tiled against
      the final judgment and order dated 17.06.2005 of the High Court of
      Gujarat at Ahmedabad in Civil Revision Application No. 110 of 1994
      whereby the High Court allowed the revision application tiled by the
D
      respondents herein and quashed the judgment/order dated 12.10.1993
      passed by the District Judge, Bharuch in Civil Appeal No. 152 of 1982
      and remanded the same to the District Judge, Bharuch.
          2. In order to appreciate the short controversy involved in the
      appeal, few facts need mention.
E
           3. The appellants are the plaintiffs-landlord whereas the
      respondents are the defendants-tenant.
            4. The suit house is situated in village Sachan, Taluka Wagra,
      District Bharuch. One Bai Zaverben, widow ofChhaganbhai Govindbhai
 F    Patel was the owner of the suit house. She had let out the suit house to
      one Ranchhodbhai Govindbhai as her tenant on a monthly rent of Rs.3/
      -. He had also executed rent note in her favour. Bai Zaverben died in
      1977. She had, however, executed a will in favour of one Ka Iidas
      Chunnilal Patel (the appellant herein-since dead and represented by his
      legal representatives) bequeathing the suit house to him. Kalidas Chunnilal
 G    Patel thus became the sole owner of the suit house on the strength of
      will after her death. The name ofKalidas Chunn ital Patel was accordingly
      mutated in revenue records as owner of the suit house. Kalidas Chunnilal
      Patel, by operation of law, then became landlord of the suit house
           5. On 06.12.1978, Kalidas Chunnilal Patel served a legal notice to
 H
KALIDAS CHUNILAL PATEL (DEAD) BY L.RS. v. SAVITABEN                              843
     .  & ORS. [ABHAY MANOHAR SAPRE, J.]

Ranchhodbhai Govindbhai demanding arrears of rent from 26.04.1976                A
to 06.12.1978 alleging that after the death of Bai Zaverben, he has not
paid any rent to him. Kalidas Chunnilal Patel also demanded possession
of the suit house alleging therein that he genuinely required the suit house
for his personal residence. It was also stated that the Bombay Rents,
Hotel and Lodging House Rates Control Act, 194 7 (hereinafter referred
                                                                                  B
to as "the Act") does not apply to the suit house. Ranchhodbhai
Govindbhai, on receipt of the notice, denied the allegations made therein
by sending his reply.
      6. This led to filing of the civil suit by Kalidas Chunnilal Patel being
Regular Civil Suit No. 183 of 1979 against Ranchhodbhai Govindbhai in
the Court of 2nd Joint Civil Judge (Sr. Division), Bharuch at Bharuch
                                                                                  c
claiming a money decree to recover Rs.94/- towards the arrears of rent
for the period 26.04.1976 to 06.12.1978, notice charges Rs.13/- and mesne
profit atthe rate ofRs.3/-per month from 06.12.1978. The plaintiff also
claimed eviction of the defendant ffom the suit house on the ground of
his personal need for residence. The defendant denied the plaint                  D
averments.
     7. It may here be mentioned that during the pendency of the suit,,.
the State Government issued a notification on 03.04.1980 under Section
2(3) and Section 6( I A) of the Act whereby the provisions of Bombay
Rent Control Act were extended and made applicable to the area when~ E
the suit house was situated. In other words, on and after 03 .04.'1980, tilt'
rights of the landlord and tenant in relation to the suit house were to be
governed by the provisions of the Act.
     8. The Trial Court on the basis of pleadings framed issues. These
issues were,                                                                      F
       "l) Whether the plaintiff proves that the defendant is in
       arrears of rent from 20.7.70?
       2) Whether the plaintiff proves that he requires the suit
       premises for his bona fide use and occupation?
                                                                                  G
       3) Whether the plaintiff pi:oves that he has become the
       owner of the suit premises?
       4) Whether the defendant proves that the plaintiff has filed
       this suit only out of malice because of their strained social
       relations?
                                                                                  H
844             SUPREME COURT REPORTS                            [2016] 4 S.C.R.


A           5) Whether the defendant proves that he has paid up the
            rent upto 2.9. 78 but he has not given any receipts?
            6) Whether the defendant proves that greater hardship
            would be caused to him if the decree for possession is
            granted?
B           7) Whether the plaintiff is entitled to get the possession?
            8) What amount, if any, the plaintiff is entitled to get?
            9) What order and decree?"
           9. The parties adduced evidence. Vide judgment/decree dated
c     18.10.1982, the Trial Court decreed the plaintiff's suit. It was held that
      the plaintiff is the landlord of the suit house whereas the defendant is his
      tenant, that the defendant is in arrears of rent for the period specified in
      the plaint, that the provisions of the Act are not applicable to the suit
      house, that the plaintiff has terminated the defendant's monthly tenancy
D     by serving proper quit notice under Section 106 of the Transfer of
      Property Act, that a case is made out by the plaintiff for passing a
      decree for possession against the defendant in relation to the suit house.
            10. The Trial Court, with these findings, passed money decree
      towards arrears of rent, notice charges and mesne profits and further
      passed the decree for possession against the defendant in relation to the
E
      suit house.
            11. The defendant, felt aggrieved, filed first appeal being Civil Appeal
      No. 152of1982 before the Court of District Judge, Bharuch. Since in
      the meantime, original plaintiff and defendant both expired and hence
      their legal representatives were brought on record to enable them to
 F
      continue the lis.
            12. In appeal, the appellate Court examined the question regarding
      the applicability of the provisions of the Act to the suit house. Indeed, we
      find from Para 14 of the appellate judgment that it was conceded by the
      parties through their lawyer that the provisions of the Act are applicable
G     to the suit house. In this view of the matter, the appellate Court proceeded
      to examine the next question as to whether it is necessary to remand the
      case to the Trial Court once it is held that the provisions of the Act
      applies to the suit house. The appellate Court, however, came to a
      conclusion in Paras 16 and 17 that since the plaintiffhas already pleaded
H
KALIDAS CHUNILAL PATEL (DEAD) BY L.RS. v~ SAVITABEN 845
        & ORS. [ABHAY MANOHAR SAPRE, J.]

that his case also satisfies the requirements ofrelevailt provisions of the      A
Act and that pleadings are in conformity with the requirements of the
Act, it is not necessary to remand the case to the Trial Court for its
retrial under the Act nor it is necessary to send this case to the Rent
Tribunal by virtue of Section 28 of the Act, which enables the Court to
decide the suit.
                                                                                 B
      13. The appellate Court, accordingly, proceP.ded to examine the
case on merits with a view to.find out as to whether the plaintiff was
able to make out any case under the Act and, if so, whether the decree
passed by the Trial Court for arrears of rent holding the defendant to be ·
the defaulter under the Act and further whether the decree for eviction
passed against the defendant on the ground of plaintiff's personal need c
for his residence is legally and factually sustainable and Whether it can
be held to have been passed in conformity with the provisions of the
Act.
      14. The appellate Court, on appreciation of evidence, held that the
plaintiff was able to make out a case that the defendant was a defaulter         D
in payment of monthly rent and that he failed to pay the arrears of rent
for a period specified in the plaint thereby incurred a penalty of being
evicted from the suit house as provided under the Act. So far as the
issue regarding plaintiff's personal need was concerned (Point No.3),
the appellate Court held in Para 22 that the counsel for the respondents         E
has conceded that the respondents do not wish to challenge the finding
of the Trial Court on this issue.
      15. In the light of such concessional statement made, by which the
challenge to the finding ofthe Trial Court on the issue of personal necessity
was expressly given up by the respondents, the appellate Court was               F
right in upholding the finding of the Trial Court on this issue. It is after
recording these findings, the appellate Court dismissed the appeal and
upheld the judgment/decree of the Trial Court thougfi on different
reasoning of its own.
      16. The defendants, felt aggrieved, filed civil ~vision in the High        G
Court. By impugned order, the High Court allowed the revision and set
aside the judgment/order ofthe first appellate Court and remanded the
case to the appellate Court with directions.                     ·
      17. It is apposite to quote the ?irections of the High Court contained
in the concluding Para of the order:
                                                                                , H
846            SUPREME COURT REPORTS                           [2016] 4 S.C.R.



A           "The Revision Application is allowed. The judgment and
            order dated 12 1h October, 1993 passed by the learned
            District Judge, Bharuch in Civil Appeal No. 152/1982 is
            quashed and set aside. The Civil Appeal is remanded to
            the learned District judge, Bharuch. The learned District
            Judge, Bharuch shall remand the Regular Civil Suit No.
B
            183/1979 to the trial court with appropriate direction either
            to transfer the suit to the Rent Court or to allow amendment
            of the pleadings and to continue the suit as one under the
            Rent Act. Rule is made absolute to the aforesaid extent.
            The parties shall bear their own cost. The Registry shall
c           send the writ forthwith."
          18. It is against the aforesaid order, the plaintiffs filed this appeal
      by way of special leave before this Court.
          19. Mr. Mayur R. Shah, learned counsel appeared for the appellants.
      No one appeared for the respondents despite service.
D
           20. It may be mentioned that during the pendency of this appeal,
      respondent No. 2, who was one of the legal representatives of original
      defendant, died. Since his interest was sufficiently safeguarded by the
      other respondents, who are related to him and hence, in our view, it is
      not necessary to bring his legal representatives on record and instead his
E     name be deleted from the cause title. It be accordingly done.
           21. Having heard the learned counsel for the appellants (plaintiffs)
      and on perusal of the record of the case, we are inclined to allow the
      appeal and while setting aside the impugned order restore the order
      passed by the appellate Court.
 F
            22. ln our considered opinion, the High Court erred in allowing the
      Revision Petition filed by the defendants-tenant and thereby erred in
      setting aside the order of the appellate Court. Similarly, the High Court
      erred in remanding the case to the appellate Court by giving directions
      as to how the issue arising in the case needs to be decided.
G
            23. In our considered opinion, the High Court failed to see that the
      question as to whether provisions of the Act are applicable to the case at
      hand by virtue ofnotification issued during the pendency of the civil suit
      had become insignificant and was of no consequence. It was for the
      reason that the appellate Court had already examined all the issues arising
H     in the case in the light of the provisions of the Act and then held that the
KALIDAS CHUNILAL PATEL (DEAD) BY L.RS. v. SAVITABEN 847
        & ORS. [ABHAY MANOHAR SAPRE, J.]

plaintiff is the owner of the suit house, thatthe defendant was the defaulter     A
in paying monthly rent and was in arrears and the plaintiff's personal
need for residence in the suit house is bona fide etc.
     24. In other words, when the appellate Court had already examined
all questions arising in the case as ifthe provisions of the Act are applicable
to the suit house and then recorded the aforementioned findings in                B
plaintiff's favour, there was no need for the High Court to remand the
case again to the appellate Court for deciding the same issues. It was, in
our opinion, an exercise in futility and was not called for.
     25. Instead, in our view, the High Court should have examined the
legality of the findings on merits with a view to find out as to whether the      c
appellate Court was justified in recording the findings in plaintiff's favour
or not.
      26. It is a settled law 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              D
revision against such order. It is only when any finding of fact is found to
be wholly perverse or de hors to any provision of law or is recorded
contrary to pleadings and evidence on record, interference in such finding
may arise in appropriate cases but not otherwise.
     27. We have perused the judgment of the Trial Court and first                E
appellate Court and find that no case is made out to interfere in the
findings recorded by the first appellate Court.
      28. In the first place, we find that all the findings recorded by the
first appellate Court are based on proper appreciation of evidence.
Secondly, these findings are recorded in the light of requirement of              F
provisions of the Act after reversing the finding of the Trial Court on the
issue ofapplicability of the provisions of the Act. Thirdly, the respondents
are not here to convince us as to why the findings of the first appellate
Court were not binding on the High Court and why they were required
to be set aside. Fourthly, we have also not been able to notice any kind
of infirmity in any of these findings so as to call for any interference in       G
this appeal and lastly, in the light of findings, namely, that the defendants
are defaulters in paying monthly rent and that the plaintiff's need for
residence in the suit house is bona fide and that the defendant was not
able to prove greater hardship if the eviction decree is passed against
him, in our view, the decree for eviction, arrears of rent and mesne profit
                                                                                  H
848            SUPREME COURT REPORTS                           [2016] 4 S.C.R.



A     was rightly passed against the defendant in relation to suit house. Since
      these findings were rendered in conformity with the requirements of the
      Act, we find no good ground to set aside these findings.
           29. In the light of foregoing reasons, we are of the view that the
      High Court committed an error in remanding the case to the appellate
B     Court for deciding these very issues afresh on their merits without there
      being any reason much less justifiable reason for passing such order.
            30. Learned counsel for the appellants, however, argued the legal
      issue regarding the applicability of the Act to the suit house during the
      pendency of the suit. He placed reliance on the decisions of this Court in
c     Moti Ram vs. Su raj Bhan & Ors., ( 1960) 2 SCR 896 and Shah Bhojraj
      Kuverji Oil Mills & Ginning Factory vs. Subhash Chandra Yograj
      Sinha, (1962) 2 SCR 159 in support of his submission. In our view, it is
      not necessary to go into this question any more much less in detail in the
      light of our reasons given above.

D          31. In view of foregoing discussion, the appeal succeeds and is
      allowed. Impugned order is set aside and that of the order of the appellate
      Court restored.
            32. The respondents are granted three months' time to vacate the
      suit house provided they deposit the entire decreetal amount within one
 E    month and give usual undertaking before the Trial Court to vacate the
      suit house on or before three months and pay damages at the same rate
      of rent for three months for use and occupation of the suit house. Let
      the compliance be made within one month.
            33. Failure to comply within time would di sen title the respondents
      to remain in occupation for three months and the appellants would be
 F
      entitled to execute the decree against the respondents on the expiry of
      one month from the date of this judgment.
           34. No costs.
      Kalpana K. Tripathy                                         Appeal allowed.
 G