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In that case,the question whether the appellant was legally married no finding was necessary in the eviction suit PRE |
It was sufficient for the rent court to proceed on the finding that the appellant and S were living together as husband and wife,whether they were legally married or not PRE |
It was further held that whether there was subletting was not a mixed question of law and fact PRE |
In Phiroze Bamanji Desai v PRE |
Chandrakant M.Patel & Ors.,[1974] 3 SCR 267 1974 Indlaw SC 282 the question involved was whether there was reasonable and bona fide requirement of premises for personal use and occupation as also the question of greater hardship under the Bombay Rent Act and the ambit and scope of the power of Section 29(3) of the said... |
Bhagwati,J.as PRE |
the learned Chief Justice then was,referred with approval the observations of Hidayatullah,J.referred to hereinbefore in Hari Shankar's case PRE |
1961 Indlaw SC 157 (supra).Bhagwati,J.observed that the ambit of section 35(1) of the Delhi & Ajmer Rent Control Act which fell for consideration in Hari Shanker's case 1961 Indlaw SC 157 (supra) was the same as section 29(3) of the Bombay Rent Act and therefore,he expressed the opinion that the High Court could inter... |
We must take note of a decision in the case of M/s Kasturbhai Ramchand Panchal & Brothers and Others v PRE |
Firm of Mohanlal Nathubhai and Others,AIR 1969 Gujarat 110 1967 Indlaw GUJ 57,upon which the High Court had placed great reliance in the judgment under appeal PRE |
There the learned judge relying on section 29(2) of the said Act held that the revisional power with which the High Court was vested under section 29(2) was not merely in the nature of jurisdictional control PRE |
It extended to corrections of all errors which would make the decision contrary to law PRE |
The legislature,the learned Judge,felt,further empowered High Court in its revisional jurisdiction to pass such order with respect thereto as it thought fit PRE |
The power according to the learned Judge was of the widest amplitude to pass such orders as the Court thought fit in order to do complete justice PRE |
He dealt with the human problem under section 13(2) of Bombay Rent Act considering the relative hardships of the landlord and the tenant and to arrive at a just solution he was of the opinion that the court should have such wide field PRE |
The jurisdiction of High Court is to correct all errors of law going to the root of the decision which would,in such cases,include even perverse findings of facts,perverse in the sense that no reasonable person,acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence ... |
In this view in our opinion the ambit of the power was expressed in rather wide amplitude Ratio |
As we read the power,the High Court must ensure that the principles of law have been correctly borne in mind Ratio |
Secondly,the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind Ratio |
It must be such a decision which no reasonable man could have arrived at Ratio |
Lastly,such a decision does not lead to a miscarriage of justice Ratio |
We must,however,guard ourselves against permitting in the guise of revision substitution of one view where two views are possible and the Court of Small Causes has taken a particular view Ratio |
If a possible view has been taken,the High Court would be exceeding its jurisdiction to substitute its own view with that the courts below because it considers it to be a better view Ratio |
The fact that the High Court would have taken a different view is wholly irrelevant Ratio |
Judged by that standard,we are of the opinion that the High Court in this case had exceeded its jurisdiction Ratio |
In the case of Punamchandra Revashankar Joshi v PRE |
Ramjibhai Maganlal,Gujarat Law Reporter PRE |
1966),the Gujarat High Court after dealing with the Gujarat Amendment Act (XVIII) of 1965 observed that the Legislature has not intended to equate the ambit of the power with the one exercised in an appeal PRE |
The authority vested in the High Court under the amendment still remained only in the domain of the jurisdiction and power of revision and no further Ratio |
The amending provision,therefore,only related to procedure and not to any rights of the parties Ratio |
This Court in the case of Bhai Chand Ratanshi v PRE |
Laxmishanker Tribhavan,[1982] 1 Rent Control Journal 2421981 PRE |
Indlaw SC 244 observed that where lower courts applied their minds properly in deciding a matter under section 13(2) of the Bombay Rent Act,the High Court could not substitute its own finding for the one reached by the courts below,on a reappraisal of evidence under section 29(2) of the Act as substituted by the Gujara... |
The High Court could not substitute its own finding for the one reached by the courts below on a reappraisal of evidence PRE |
In the instant case the basic question is whether keeping in background the partnership deeds referred to hereinbefore and the facts that came to light,was there partnership or not Ratio |
Sharing of profits and contributing to losses were not the only elements in a partnership,existence of agency was essential and whether there was a partnership or not is a mixed question of law and fact,depending upon the varying circumstances in different cases Ratio |
This view was reiterated by Chief Justice Beaumont,in Chimanram Motilal and another v PRE |
Jayantilal Chhaganlal and another,A.I.R.1939 Bombay 410 1939 Indlaw MUM 155.Ramaswami,J.in Mohammed Musa Sahib (dead) and others v PRE |
N.K.Mohammed Ghouse Sahib and another,A.I.R.1959 PRE |
Madras 379 1958 Indlaw MAD 820 observed that whether the relation of partnership between two or more persons does or does not exit must depend on the real intention and contract of the parties and not merely on their expressed intention PRE |
He also referred to section 4 of the Partnership Act about the principles of partnership namely,(1) there must be agreement entered into by all the persons concerned; (2) the agreement must be to share the profits of a business; and (3) the business must be carried on by all or any of the persons concerned acting for a... |
In the instant case judged by the aforesaid principles,it is possible to hold that there was a partnership of which the appellant was a partner Ratio |
The Court of Small Causes considered these principles,evaluated the evidence and held that there was in fact and in law a partnership Ratio |
Such a view was not an impossible one or a perverse one Ratio |
If that was so,there was nothing that could be clone about such a view,within the ambit and scope of the power of section 29(2) of the Rent Act Ratio |
We may mention that in Gundalapalli Rangamannar Chetty v PRE |
Desu Rangiah and others,A.I.R.1954 PRE |
Madras 182,Subba Rao,J.as the learned Chief Justice then was,held that there cannot be a subletting,unless the lessee parted with legal possession PRE |
The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease PRE |
In the light of the aforesaid principles and the facts that have emerged,we are of the opinion that the High Court exceeded its jurisdiction under section 29(2) of the Rent Act RPC |
We are further of the opinion that the Court of Small Causes was right in the view it took RPC |
and it was a possible view to take RPC |
In the result the appeal is allowed and the judgment and order of the Gujarat High Court dated 21st of August,1979 are set aside RPC |
The order and judgment of the Court of Small Causes Ahmedabad dated 18th of August,1977 are restored RPC |
The suit for possession is accordingly dismissed RPC |
The appellant herein is entitled to the costs throughout RPC |
Appeal allowed RPC |
Appeal Allowed RPC |
This appeal is directed against the judgment and order of the High Court of Gujarat dated 28.2.1986 allowing the respondent's writ petition and quashing order of discharge from service and directing his reinstatement in service Ratio |
The respondent joined service as technical assistant with the Gujarat State Electricity Board (hereinafter refined to as the Board).He was promoted to the post of Deputy Engineer FAC |
While he was posted at Surat as Deputy Engineer he was transferred to Ukai subdivision under the order of the Superintending Engineer dated 29th March,1974.Pursuant to the order of transfer he was relieved from his duties at Surat on 30th March,1974 to enable him to join at Ukai FAC |
He made representation to the Additional Chief Engineer for cancelling his transfer order on the ground that his mother aged 70 years was ailing and it would cause great inconvenience to him if he was required to join at Ukai FAC |
His representation was rejected and he was directed to join at Ukai but he did not do so instead he filed a civil suit at Baroda challenging validity of the order of transfer FAC |
Meanwhile,the Chief Engineer by his order dated 27th May,1974 discharged the respondent from service with effect from 31st March,1974 in accordance with service Regulation No.113.The respondent challenged the validity of the order of his discharge from service by means of a writ petition under Article 226 of the Consti... |
A learned Single Judge of the High Court quashed the order of termination on the findings that the order of discharge was issued m violation of the basic principles of natural justice as no opportunity was afforded to the respondent before discharging him from services under Regulation No.113 FAC |
The learned Single Judge granted a declaration in respondent's favour holding the order void and illegal but having regard to recalcitrant attitude of the appellant and his continued conduct of disobedience of the orders of his superior authorities,he refused to grant consequential reliefs regarding reinstatement or pa... |
The respondent as well as the appellant-board,both preferred Letters Patent appeals against the order of learned Single Judge FAC |
A Division Bench of the High Court dismissed the appeal preferred by the Appellants but it allowed the respondent's appeal FAC |
The Division Bench upheld the order of the learned Single Judge holding the order of discharge illegal and void but it set aside the order of the learned Single Judge refusing to grant consequential relief instead it directed the appellants to reinstate the respondent,and to treat him in service without any break in se... |
The Bench,however,did not grant full back-wages to the respondent instead it directed the Board to pay him 50 per cent of back-wages FAC |
Aggrieved,the appellant has preferred the instant appeal after obtaining special leave of this Court FAC |
This appeal came up for hearing before us on 28th January,1988 and on that day FAC |
Sh FAC |
B.K.Mehta,Advocate appearing for the appellants and Sh FAC |
Vimal Dave,Advocate,appearing for the respondent were fully heard FAC |
After hearing learned counsel for the parties we were satisfied that the learned Single Judge as well as the Division Bench both had committed error in allowing the writ petition and granting relief to the respondent FAC |
We expressed our view in the Court and suggested to Mr FAC |
Vimal Dave,counsel for the respondent,that if he agreed the original writ petition of the respondent could be dismissed without directing him to refund the amount which he had already been paid by the appellants in pursuance to the orders of the High Court and of this Court as during the pendency of the appeal FAC |
the appellants were directed by means of interim order of this Court to continue to pay salary to the respondent which was being paid to him regularly FAC |
The hearing was adjourned to enable Sh FAC |
Vimal Dave,to obtain instructions from the respondent FAC |
The appeal came up for hearing before us on 16.2.1988 when another counsel appeared to argue the appeal on behalf of the respondent on merits FAC |
We refused to hear the counsel as we had already completed hearing Ratio |
Thereupon,the respondent himself appeared in person and sought permission to make his submissions personally Ratio |
We refused to accede to his request as oral heating had already been completed and the matter had been adjourned only to enable the respondent's counsel to obtain instructions Ratio |
However,in the interest of justice we permitted the respondent to file written submissions.if any,in support of his case Ratio |
Thereafter,the case was listed several times but no written submissions were filed instead the respondent adopted an unusual course by sending an application by post expressing his no confidence in us with a prayer to transfer the case to some other Bench Ratio |
Since this was unusual,uncalled for and unjustified request we ignored the same and reserved the order Ratio |
We are constrained to note that instead of utilizing the opportunity granted to him for filing written submissions the respondent has misused adjournments for the purposes of raising frivolous objections for getting the case transferred to some other Bench Ratio |
No party is entitled to get a case transferred from one Bench to the other,unless the Bench is biased or there are some reasonable grounds for the same,but no right to get a case transferred to any other Bench,can legitimately be claimed merely because the judges express opinion on the merits of the case on the conclus... |
In the instant case on the conclusion of the oral hearing we had expressed our opinion on 28.1.1988 in the open court,that we were inclined to allow the appeal and set aside the order of the High Court and dismiss the writ petition but taking a sympathetic view we requested Sh Ratio |
Vimal Dave,learned counsel appearing for the respondent to obtain instructions as aforesaid Ratio |
The opportunity granted to the respondent has,however,been misused by raising mischievous and frivolous objections instead of filing written submissions Ratio |
The respondent's prayer is accordingly rejected and since oral hearing has already been completed,and in spite of several adjournments respondent failed to appear before the Court or to file the written submissions we proceed to decide the case on merits FAC |
Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service Ratio |
No Government servant or employee of Public Undertaking has legal tight for being posted at any particular place Ratio |
Transfer from one place to other is generally a condition of service and the employee has no choice in the matter Ratio |
Transfer from one place to other is necessary in public interest and efficiency in the Public administration Ratio |
Whenever,a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay,modification or cancellation of the transfer order Ratio |
If the order of transfer is not stayed,modified or cancelled the concerned public servant must carry out the order of transfer Ratio |
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