1999 Supreme(Bom) 28
IN THE HIGH COURT OF BOMBAY
T.K. Chandrashekhara Das, J.
Smt. Mangala w/o. Mahadeo Damodhar Kale another..... Petitioners.
Versus
Nilkanth Shamrao Nawalkar another ..... Respondents.
Writ Petition No. 1353 of 1997, decided on 18-1-1999.
Advocates appeared :
A.K. Abhyankar, for the petitioners.
V.T. Walavalkar with S.G. Deshmukh, for respondents.
Headnote:Article 227-Bombay Rents, Hotel and Lodging House Rates Control Act-Supervisory jurisdiction of High Court-Exercise of-Wrongs and errors committed by Courts below are not liable to be corrected until and unless those errors do manifest on face of the record and amounts to failure of justice.-In exercise of powers conferred under Article 227 of the Constitution, wrongs and errors committed by the Courts below are not liable to be corrected until and unless those errors do manifest on the face of the record and amounts to failure of justice. Only in such cases those orders are liable to be corrected and interfered by the Court. When of the two grounds taken by tenant petitioner before the Court below, both the Courts concurrently rejected those grounds and found that the respondents had established that requirement was bona fide and reasonable and the suit building should be vacated by the petitioner for their occupation no interference under Article 227 of the Constitution warranted. 1970 Mh LJ 838, 1967 Mh LJ 880: AIR 1968 Bom 198 and AIR 1958 SC 398-Ref.
Act Referred
CONSTITUTION OF INDIA : Art.227
2. The defence mainly set up by the petitioner was that the respondents have got other rooms which was occupied by tenants and that even when the tenants vacated these rooms, instead of occupying himself he has again inducted new tenants and therefore, there is no bona fide in the requirement of the respondent. He also contended that comparative hardship will be greater than that of the landlord if the tenant is being vacated. During the pendency of the petition, the original defendant died and the present petitioners are the legal heirs of Mahadeo Damodar Kale, who was the original tenant. Therefore, by virtue of sub section (2) of section 13 no order can be passed for evicting the petitioners. Both these contentions of the defendant were rejected by the Small Causes Court and against that appeal was filed by the petitioners as Appeal No. 129 of 1991. The same was also dismissed by the Court below.
3. The learned Counsel for the respondent has mainly relied upon his argument that it is proved before the Court that during the pendency of the proceedings, certain tenants of the respondents were vacated the premises and the same were transferred to some other tenants and transfer took place even before 1980 and creation of tenancy during the period should be held against the landlord.
4. It is seen from the record that this factual aspect of the matter has been considered by the original authority and appellate authority and found that the respondent did not get at any point of time vacant possession of those rooms and it was transferred inter se between the previous tenants and present tenants. The contention of the respondent is that the respondent had to cope up with the situation. Instead of going for litigation against tenant as otherwise he will loose his rent also, he was recognizing tenancy of the new tenants even though they have been transferred from previous tenant to new tenant as without consent of the respondent. This contention of the landlord were accepted by both the courts and found that as respondents have established the bona fide need as the need was reasonable and legal.
5. The learned Counsel for the petitioner Mr. Abhyankar argued on the comparative assessment of the hardship of the parties. The petitioner is put to more hardship in such situation than that the respondents, because he was an employee of the Co-operative Society which has not provided