# OM PRAKASH AND ORS v. SMT. SUNHARI DEVI AND ORS

- **Citation:** [1993] 2 S.C.R. 144
- **Court:** Supreme Court of India
- **Decided:** 1993-03-02
- **Case number:** Civil Appeal No. 100 of 1993
- **Bench:** Kuldip Singh, S.P. Bharucha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/om-prakash-and-ors-v-smt-sunhari-devi-and-ors-11739
- **Pages:** 5

## Headnote

U.P. Urban Building (Ret,ulation of Letting, Rent and Eviction) Act,
1972: Section 21( l)(a)-Eviction petition-Comparative hardship-Bonafide
requiremem-fl.e-assessnzent of evidence by High Court under its writ jurisC dicrion-l'emiissibility of
D
Co11stitutio11 of India, 1950: Arts. 136, 22~rit jurisdiction of High
Court-Re-Assessment of evidence- Permiw"bility of-Interference in such
matters u11der Special Leave jurisdiction-Whether called for.
"'"(.
The appellant-landlords filed an eviction petition against respondent-tenants on the ground that they required the shop premises for their
own use. The prescribed authority dismissed the petition holding that the
appellants' requirement was not bonafide and that greater hardship would
be caused to the respondents than to the appellants. On appeal the
E appellate authority held that the requirement of the appellants was
genuine and bo11afide. The respondent filed a Writ Petition before the High
Court and it observed that the appellate authority ought to have ascertained the actual accommodation available in the property after excluding
the accommodation necessary for residential purposes and •hould have
F
found out whether two rooms on the first Door could be spared for
-
business. The High Court further observed that the appellate authority
was not justified in entering into the question of privacy and that the
appellants had failed to disclose their residential accommodation. The
High Court thus quashed the order of the appellate authority and restored
the appeal to the file of the appellate authority to be decided afresh after
G hearing the parties and in the light of the observations made by It. This
has been challenged in the present appeal by special leave.
On behalf of the appellants, it wa• contended that It was not open to
the High Court lo have reassessed the evidence, especially under its Writ
H jurisdiction.
144
+
OM PRAKASH v. SUNHARI DEVI [BHARUCHA, J.]
145
On behalf of the Respondent it was contended that the findings of A
the appellate authority were perverse and therefore a re-assessment of the
evidence was called for.
Allowing the appeal, this Court,
HELD : 1.1. Even in a second appeal the High Court must restrict B
itself to questions of law; all the more so in a writ petition. [147H]
1.2. In the instant case, the High Court re-assessed the evidence and
went beyond its legitimate jurisdiction. The intervention of this Court is
therefore, called for, especially since the High Court has directed the
appellate authority to decide the appeal afresh "in the light of the observations made above". This Court does not approve of some of those
c
! ·
observations. It is very difficult to see how a landlord can be asked to build
alternate premises. It is also very difficult to see how a landlord who has
asked for the eviction of a tenant from commercial premises can be faulted
for not having given particulars of his residential accommodation and how D
this can be treated as a purposeful attempt on his part to keep back
relevant material from the court, which should be taken into consideration
in deciding his bona fide need. [148A-C]
2. The judgment and order under appeal are set aside. The order of
the appellate authority dated 26th November, 1990 is restored.
E

## Text

A
OM PRAKASH AND ORS.
v.
SMT. SUNHARI DEVI AND ORS.
MARCH 2, 1993
B
[KULDIP SINGH AND S.P. BHARUCHA, JJ.]
U.P. Urban Building (Ret,ulation of Letting, Rent and Eviction) Act,
1972: Section 21( l)(a)-Eviction petition-Comparative hardship-Bonafide
requiremem-fl.e-assessnzent of evidence by High Court under its writ jurisC dicrion-l'emiissibility of
D
Co11stitutio11 of India, 1950: Arts. 136, 22~rit jurisdiction of High
Court-Re-Assessment of evidence- Permiw"bility of-Interference in such
matters u11der Special Leave jurisdiction-Whether called for.
"'"(.
The appellant-landlords filed an eviction petition against respondent-tenants on the ground that they required the shop premises for their
own use. The prescribed authority dismissed the petition holding that the
appellants' requirement was not bonafide and that greater hardship would
be caused to the respondents than to the appellants. On appeal the
E appellate authority held that the requirement of the appellants was
genuine and bo11afide. The respondent filed a Writ Petition before the High
Court and it observed that the appellate authority ought to have ascertained the actual accommodation available in the property after excluding
the accommodation necessary for residential purposes and •hould have
F
found out whether two rooms on the first Door could be spared for
-
business. The High Court further observed that the appellate authority
was not justified in entering into the question of privacy and that the
appellants had failed to disclose their residential accommodation. The
High Court thus quashed the order of the appellate authority and restored
the appeal to the file of the appellate authority to be decided afresh after
G hearing the parties and in the light of the observations made by It. This
has been challenged in the present appeal by special leave.
On behalf of the appellants, it wa• contended that It was not open to
the High Court lo have reassessed the evidence, especially under its Writ
H jurisdiction.
144
+
OM PRAKASH v. SUNHARI DEVI [BHARUCHA, J.]
145
On behalf of the Respondent it was contended that the findings of A
the appellate authority were perverse and therefore a re-assessment of the
evidence was called for.
Allowing the appeal, this Court,
HELD : 1.1. Even in a second appeal the High Court must restrict B
itself to questions of law; all the more so in a writ petition. [147H]
1.2. In the instant case, the High Court re-assessed the evidence and
went beyond its legitimate jurisdiction. The intervention of this Court is
therefore, called for, especially since the High Court has directed the
appellate authority to decide the appeal afresh "in the light of the observations made above". This Court does not approve of some of those
c
! ·
observations. It is very difficult to see how a landlord can be asked to build
alternate premises. It is also very difficult to see how a landlord who has
asked for the eviction of a tenant from commercial premises can be faulted
for not having given particulars of his residential accommodation and how D
this can be treated as a purposeful attempt on his part to keep back
relevant material from the court, which should be taken into consideration
in deciding his bona fide need. [148A-C]
2. The judgment and order under appeal are set aside. The order of
the appellate authority dated 26th November, 1990 is restored.
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 100 of
1993.
From the Judgment and Order dated 2.9.92 of the Allahabad High
Court in Civil Misc. W.P. No. 32805 of 1990.
R.K. Jain and S.R. Setia for the Appellants.
Rajinder Sachhar and K.C. Dua for the Respondents.
The Judgment of the Court was delivered by
BHARUCHA, J. The appeal is directed against the judgment and
order of the High Court at Allahabad allowing the writ petition filed by
F
G
the respondents and ordering that the appeal, the order which was impugned in the writ petition, should be decided afresh in the light of the H
146
SUPREME COURT REPORTS
(1993] 2 S.C.R.
A
observations made in its judgment.
B
c
The appellants are the landlords and the respondents the tenants.
The appellants filed an eviction petition against the respondents under
section 2l(l)(a) of the U.P. Urban Building (Regulation of Letting, Rent
and Eviction) Act, 1972 on the ground that they bonafide required the
tenanted premises, a shop, for their own use. The prescribed authority
under the said Act dismissed the eviction petition holding that the
appellants' requirement was not bonafide and that greater hardship would
be caused to the respondents than to the appellants. The appellants filed
an appeal and the appellate authority allowed the same holding that the
requirement of the appellants was genuine a.nd bonafide. It also held in
favour of the appellants upon the aspect of comparative hardship.
The respondent thereupon preferred the writ petition (being CMWP
No.32805 of 1990) in the Allahabad High Court under Article 226 of the
D
Constitution of India and impugned the judgment and order of the appellate authority. The High Court noted that a perusal of the orders of the
. prescribed authority and the appellate authority showed that seven properties were available to the landlords and these were relevant for the purposes of determining their bonafide need. In regard to a particular property
E
F
(in Mohalla Shitala), the High Court found that the appellate authority's
conclusion was not justified. From the material upon the record it appeared to the High Court that this property was available to the appellants
and the second appellant was actually residing in it. The consequence of
this finding was that accommodation on the first floor, which was alleged
by the appellants to have been occupied for residential purposes, could be
freed for doing business. The High Court had not concluded that the
business could not be carried on in this property. The High Court then
noted that the appellants had themselve pleaded that certain open land
available to them was not sufficient for constructing a shop, being too small.
In view of this pleading the High Court inferred, in its view, legitimately,
that the appellants had no objection and were capable of raising a new
G construction over the open land available to them subject to their objection
regarding its size. The authorities, in these circumstances, should, it said,
have considered the availability of this land.to meet the appellanis' requirements. This had been done by the prescribed authority but his findit.g had
been reversed by the appellate authority on the basis that it would not be
H proper to direct the appellants to raise money and to construct a shop over
OM PRAKASH v. SUNHARI DEVI (BHARUCHA, J.]
147
-+ the open land. In the High Court's opinion this approach was not justified. A
The appellate authority should have confined its consideration of this open
land only to its size. In regard to a shop left by one Lal Chaturson, the
findings of the appellate authority were found by the High Court to be full
~
of conjectures and surmises. The measurement of the shop had not been
disclosed and there was nothing on the record to show that it could not be
used for accommodating three persons doing the same business, namely,
that of manufacturing ornaments. In regard to yet another property it had
been admitted by the appellants that they carried out construction on the
fir5t as well as second floor. In the High Court's view, the appellate
authority ought, in the circumstances, to have ascertained the actual accomodation. available in this property 'as the business can be carried out
and it was being carried out earlier from the first floor". The appellate
authority, after excluding the accommodation necessary for residential
B
c
.--purposes, shoulrl, it held, have ascertained whether two rooms on the first
floor could be spared for the proposed business. So far as privacy was
concerned, no such case ha•ing been set up by the appellants, the appellate D
authority was not justified in entering into this question. Further, since the
prescribed authority had noticed the fact that the appellants had failed to
disclose their residential accommodation in the application, and it was
"purposive, the appellate authority ought to have taken the effect of this
into consideration on the question of the bonafide need of appellants. For
_these reasons the High Court quashed the order of the appellate authority E
'1' and restored the appeal to the file of the appellate authority to be decided
afresh after hearing the parties and "in the light of the observations made
above".
Learned counsel for the appellants submitted that it was not open to F
the High Court to have re-assessed the evidence, particularly in a proceeding under Article 226. Counsel for the respondents, on the other hand,
...._
· · submitted that the findings of the appellate authority were perverse and
the High Court was, therefore, entitled to look into the evidence and come
to the findings it reached. In his submission, this Court ought not to
exercise its jurisdiction under Article 136 because all that the High Court G
had done was to remand the matter to the appellate authority.
Even in a second appeal the High Court must restrict itself to
questions of law; all the more so in a writ petition. We have referred to
the findings of the High Court in some detail. They leave us in no doubt H
148
SUPREME COURT REPORTS
[1993) 2 S.C.R.
A
that the High Court re-assessed the evidence and went beyond its +
legitimate jurisdiction. The intervention of this Court is therefore, called
B
c
for, ~specially since the High Court has directed the appellate authority to
decide the appeal afresh "in the light of the observations made above". We
do not approve of some of those observations. It is, to take one example,
very difficult to sec how a landlord can be asked to build alternate
premises. To take another, it is very difficult to see how a landlord who
has asked for the eviction of a tenant from commercial premises can be
faulted for not having given particulars of his residential accommodation
and how this can be treated as a purposeful attempt on his part to keep
back relevant material from the court, which should be taken into consideration in deciding his bona fide need.
The appeal is allowed. The judgment and order under appeal are set
aside. The order of the appellate authority dated 26th November, 1990 is "f
restored.
D
The respondent shall pay to the appellants the costs of this appeal
and of the writ petition quantified at Rs. 3,000.
G.N.
Appeal allowed.