JAL HIRJI TARAPOREVALA Vs. K A HAMID

JUDGEMENT

(1.) THIS is an application under Section 115, Civil P. C. files by the plaintiff, whose suit for a decree for possession of certain premises in Jassim House No. 25, Cuffe Parade, Colaba, Bombay, against his tenant has been dismissed by the trial Court and which decree of dismissal has been confirmed in appeal by the Court of Small Causes exercising jurisdiction under Section 29 of Bombay Act 57 of 1947. The plaintiff purchased the building known as Jassim House some time in 1946. Thereafter he served a notice upon the defendant on 6-3-1947, requiring the defendant to vacate and deliver possession of a fiat in the building which was occupied by the defendant as a tenant of the Plaintiff. It appears that no suit was filed by the plaintiff after termination of the contract of tenancy by that notice. On 12-6-1952, a fresh notice was served by the plaintiff upon the defendant requiring the defendant to vacate and deliver possession of the premises to him and on 14-8-1952 the suit out of which this revision application arises was filed in the Court of Small Causes at Bombay for an order against the defendant requiring him to vacate and deliver possession of the premises. It was the plaintiff's case that the flat in the occupation of the defendant was required reasonably and bona fide by the plaintiff for his own use and occupation. The plaintiff stated that he had at his disposal a flat in the building which he was willing to give to the defendant in order to minimise the hardship which may be caused to the defendant. Possession of the premises was also claimed on other grounds, but it is unnecessary to set out and deal with those grounds because they have not been relied upon in the trial Court. The suit was resisted by the defendant. He contended that the requirement of the plaintiff was neither reasonable nor bona fide. The defendant admitted that the flat which was in his occupation had better amenities than the amenities which the flat occupied by the plaintiff in the same building had. But he contended that he and the members of his family were occupying the flat facing west in Jassim House with its ameni-ties for several years and if he was called upon to vacate and deliver possession of that flat, It would entail considerable hardship upon him and the members of his family and, therefore no order should be passed in favour of the plaintiff. Before the learned trial Judge several witnesses were examined including some well-known medical practitioners. The learned trial Judge on a consideration of the evidence held that the plaintiff's requirement of the flat in the occupation of the defendant was reasonable but it was not bona fide. He also held that if an order requiring the defendant to vacate and deliver possession of the flat in his occupation were passed, it would not cause hardship to the defendant. In the view of the learned trial Judge, the notice served by the plaintiff on 12-6-1952, was a 'valid and proper' notice and the alternative accommodation offered by the plaintiff to the defendant was reasonable but that it was not necessary to consider whether the alternative accommodation was suitable accommodation for the defendant. The learned Judge filially held that greater hardship will not be caused by passing the order in ejectment against the defendant, than by not passing it. He was also of the opinion that no hardship will be caused either by passing or refusing to pass it". On the view taken by him that the plaintiff's requirement was not bona fide, the learned trial Judge dismissed the plaintiff's suit. It may be observed that the finding of the learned trial Judge that the requirement of the plaintiff was not bona fide was substantially based on the view that whereas the plaintiff had purchased the building in 1946 he had not filed the suit ill ejectment till the August 1952 and that he had put up with 'inconvenience' for more than 9 years.

(2.) APPEAL No. 369 of 1953 was filed by the plaintiff against the decree passed by the learned trial Judge to the Appellate Court of the Court of Small Causes. In appeal the Court of Small Causes held that the requirement of the plaintiff must be regarded as bona fide. They observed that the plaintiff was not bound to make a claim for possession immediately after the period of the notice dated 6-3-1947. In the view of the learned Judges of the Appellate Court, the plaintiff in calling upon the defendant forthwith to vacate and deliver possession was inspired by "a desire which every landlord, placed as appellant is, would have had to occupy the premises, which both in its location and lay out is better than the one occupied by him" and that the plaintiff had acted in a "gentlemanly way' and 'had favoured the defendant' and the delay in filing the suit was not indicative of absence of bona fides. The learned Judges, however, were of the view that the requirement of the plaintiff was not reasonable. They also considered the question whether greater hardship was likely to be caused to the defendant if he was called upon to vacate than would be caused to the plaintiff by not requiring the defendant to vacate. They held on a consideration of the evidence that if an order of ejectment was refused to the plaintiff, no hardship at all would result to the plaintiff. They also held that if an order of ejectment was passed against the defendant It would, in view of his mode of life and his status and his requirements, certainly result in compelling him to live a different mode of life' and 'would cost him enormous sums of money regularly for the rest of his life' and would entail 'considerable hardship' to him. On the view that the requirement of the plaintiff was not reasonable and refusing to pass an order In favour of the plaintiff would not entail hardship to him and passing an order in ejectment would entail hardship to the defendant, the learned Judges confirmed the order passed by the learned trial Judge. The plaintiff has now come to this Court in revision and has challenged the order passed by the learned Judges of the Court of Appeal exercising Jurisdiction under Section 29 of Bombay Act 57 of 1947.

(3.) NOW this Revision Application has been filed under Section 115, Civil P. C. and must be decided strictly according to those provisions. It is true that in the petition filed by the plaintiff it was stated in paragraph 8 that: 'being aggrieved by the judgment and decree passed by the Court of Small Causes in Appeal No. 369 of 1953, the petitioner presented the Revision Application under Section 115, Civil P. C. and also under the powers of superintendence exercised by this Court". It must, however, be observed that I have, sitting as a single Judge, revisional jurisdiction exer-cisable only under Section 115, Civil P. C. The powers of superintendence exercisable by this Court according to the rules of this Court can be exercised only by a Division Bench. An application which invokes the powers of this Court under Article 227 of the Constitution can only be heard and decided by a Division Bench and not by a single Judge. Even if this application, which invokes the powers of superintendence exercised by this Court, be regarded as an application under Article 227 of the Constitution, and on that question I express no opinion, In my view, the only application before me is one invoking revisional Jurisdiction of this Court under Section 115, Civil P. C. The application was filed as a Revision Application, was numbered as a Revision Application and was placed for orders for issue of Rule before a single Judge and Rule was obtained. If it was desired by the plaintiff to invoke the Jurisdiction of this Court under Article 227 of the Constitution, he should have, at the time of filing the application, insisted that it be numbered, as is the practice of this Court, as a special civil Application and to have it placed before a Division Bench for Rule. Not having so Insisted and having obtained Rule from a single Judge, on the footing that the petitioner was held invoking the revisional Jurisdiction of this Court it may be safe to assume that the plaintiff desired to invoke only the revisional jurisdiction of this Court. In any event, no Rule having been issued on the application under Article 227 of tire Constitution I am not called upon to decide whether the plaintiff is entitled to obtain redress of his grievance in exercise of that Jurisdiction. I may observe that on the application filed it may be open if the plaintiff is so advised to approach a Bench competent to give him relief under Article 227 of the Constitution but so far as I am concerned, I can only deal with the application as a Revision Application under Section 115, Civil P. C. and not as an application invoking the superintendence of this Court vested in it by Article 227.