A court decree which has obtained finality past the period of limitation to file an appeal, cannot be in question

Daniyal Qureshi | Symbiosis Law School Pune | 15th March 2020

Kumud v Pandurang Narayan Gandhewar and Ors (2019) 7 SCC 287

Facts 

The appellant in the present case is the landlord who sought eviction of the of respondent from the rent controller, the tenant, on the grounds that he the owner had bona fide requirement of the premises which had been let out to the respondent and the respondent was a habitual defaulter in paying rent. After the rent controller granted the permission the appellant terminated the tenancy of the respondent. The respondent then filed a civil suit challenging the termination of the tenancy on the grounds that the premises was covered under the Maharashtra Slum (Improvement and Redevelopment) Act 1971 as the appellant required the permission of the Slum Authority under section 22 of the act to evict the respondent. Subsequently the civil suit was withdrawn by the appellant. The Slum Authority the granted the permission to the appellant for the eviction of the respondent and the appellant filed a suit in the Civil Court. The finality of this decree is undisputed. However, meanwhile the respondent filed a writ petition in the High Court challenging the order passed by the Slum Authority on the grounds that the slums authority did not consider all the facts while making the order for the eviction of the respondent. The High Court allowed the wri petition. Aggrieved by the said order the Appellant has filed the present appeal before the Supreme Court of India. 

Issue 

Whether the High Court erred in allowing the writ petition without due examination of the decree of the civil court.

Judgement. 

The High Court in allowing the writ petition by the respondent tin the present case has not considered or examined the Decree passed by the civil court in the original suit. 

Prior to this writ petition the respondent had appealed in the Slum Authority under the Maharashtra Slums (improvement and redevelopment) Act 1971. The respondent had challenged that in making the order for the eviction of the respondent the Slum authority had not considered all the factors, including that whether the requirement of the respondent was more weighed out that the requirement of the appellant and to secure the respondent an alternate accommodation. The appellate authority thereby vide its order dated 31.01.2002 dismissed the said appeal of the respondent laying down that Section 22 (4) of the Maharashtra Slums (improvement and redevelopment) Act 1971 required an examination of the availability of alternate accommodation to the tenant in question being evicted. However, this does not mean that the authority should search for alternate accommodation for the tenant in occupation being evicted. It was also noted that the burden of proof as to whether alternate accommodation is available or not lies upon the appellant (respondent in the present appeal before the Supreme Court) and the appellant has failed to show the same. 

The Supreme Court laid down that the High Court erred in Not considering the decree of the Civil Court for the purpose of disposing of the Writ Petition from which the present appeal has arisen. It was laid down that in Vidarbha part of Maharashtra there were supposed to be two rounds of litigation to be gone into. The first round being before the Rent Controller for the permission of granting the power to evict the tenant. And then before the Civil Court to obtain a decree to evict the tenant. In the present case the first round of litigation had been gone into and then subsequently the appellant filed a civil suit before the civil court. Bona Fide need as a ground for eviction may in a case of hardship may have an additional facet of alternate accommodation. In any case the decree had been passed by the Civil Court and had obtained finality pressing past the period of limitation to file an appeal. Therefore, the respondents right to appeal against the said order had been extinguished. The same cannot be surpassed or ignored through a writ petition posing as a fresh litigation. Therefore, the High Court was not correct. The respondent had at every stage a sufficient opportunity to present their case whether the requirements of section 22(4) stood satisfied or not. In that view the Supreme Court laid down that there was no reason for the High Court to interfere in its jurisdiction under article 227 of the Constitution of India.