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CASE NO.:

Appeal (civil) 4041 of 2001

Special Leave Petition (civil) 5722 of 1999

PETITIONER:

DEENA NATH

Vs.

RESPONDENT:

POORAN LAL

DATE OF JUDGMENT: 11/07/2001

BENCH:

D.P.Mohapatro, U.C.Banerjee

JUDGMENT:

D.P.MOHAPATRA,J.

Leave granted.

This appeal filed by special leave is directed against

the judgment and decree passed by the High Court at

Jabalpur in Second Appeal No.81/98 in which the Court

set aside the concurrent judgments of the courts below

and dismissed the suit. The appellant, who is the

landlord of the suit premises filed Civil Suit No.4-A/92 in

the Court of the Ist Civil Judge, Class I, Hoshangabad

seeking eviction of the respondent, the tenant on the

grounds of default and bonafide requirements under

Sections 12(1)(a) and (f) of the Madhya Pradesh

Accommodation Control Act, 1961 (for short 'the Act')

respectively.

The suit premises is one of the five shop rooms on

the ground floor of the building owned by the plaintiff. It

was the case of the plaintiff that he needs the shop room

in occupation of the defendant for the purpose of

opening a new shop for his son Pradeep Kumar Gupta.

The defendant refuted both the grounds taken in

support of the plea for his eviction. He denied that he

was in arrear of rent and also that the landlord had any

bonafide need for the premises. The defendant further

pleaded that one other shop room which was previously

let out to Krishnabai and Krishna Gopal was lying vacant

long prior to the filing of the suit on 4.1.1988 and that

during pendency of the suit another shop room which

was in occupation of one Kailash Jatav had been

vacated. It was also the case of the defendant that

Pradeep Kumar Gupta for whose benefit his (defendant)

eviction was sought had been allotted shop room No.31

in Ravi Shankar Market in Hoshangabad. In these

circumstances, the defendant contended, there was no

bonafide need of the landlord for the suit premises. It

was the further case of the defendant that indeed the

landlord wanted to enhance the rent from Rs.225/- p.m.

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to Rs.400/- p.m. which he (defendant) did not agree to

pay. Hence the suit for eviction.

Both the parties led evidence in support of

their respective cases. The appellant, while admitting the

fact that the shop room which was vacated by the

tenants Krishnabai and Krishnagopal was at his disposal

but that shoproom was not suitable for starting the

business of sale of clothes and tailoring materials which

his son intends to start. He was also constrained to

admit that shop No.31 of Ravi Shankar Market had been

allotted in the name of his son-Pradeep Kumar Gupta.

Regarding the shop room vacated by Kailash Jatav the

explanation of the landlord was that it is a small

triangular shaped room which is not suitable for the

purpose for which eviction is sought. The thrust of his

contention was that on getting vacant possession of the

suit premises from the defendant, he will amalgamate

that room with the room vacated by Krishnabai and

Krishnagopal and make it into one room.

From the side of the defendant on the other

hand, an attempt was made to show that the need

pleaded by the landlord on the materials on record, can

never be said to be bonafide need. The action of the

plaintiff for getting him evicted from the suit premises,

according to the defendant, was purely arbitrary and

whimsical.

The trial Court on appreciation of the

evidence on record, did not accept the case of the

plaintiff for eviction of the tenant on the ground of

arrear of rent. Though the fact of arrear was proved

the tenant had deposited the amount on receiving

notice under Section 13 of the Act and therefore, the

trial court held that that would not be the basis of a

decree of eviction. The case of the plaintiff for

eviction on the ground of bonafide requirement was

accepted by the trial Court and the suit for eviction of

the defendant was decreed.

The appeal filed by the defendant-tenant

proved unsucessful.

In Second Appeal the High Court initially

formulated the following question of law for decision:

"Whether in view of the admitted position

that the shop belonging to Krishnabai and

Krishna Gopal as well as that of Vishal

Tailors was already vacated, the Court

below was entitled to decree the suit on

the ground that the respondent had no

reasonable and suitable accommodation

for starting the business of tailoring

material of his son?"

In course of hearing of the appeal, the High

Court formulated a further question of law for its decision

in the following terms:

"Whether under the facts and

circumstances of the case, the

requirement of the respondent, could be

said to be bona fide?"

(Emphasis supplied)

On a detailed discussion of the evidence on

record, the High Court recorded the findings inter alia

that the averments in the plaint that the shop occupied

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by Krishnabai and Krishna Gopal was not vacant and

that he had filed a civil suit for the purpose was a mis-

statement of fact because the shop occupied by these

persons was already vacant when the plaint was filed.

Indeed the shop room was lying vacant for the last three

years. The Court also found that the shop occupied by

Kailash Jatav was also in possession of the landlord.

The High Court further observed that no attempt had

been made by the landlord to offer any explanation as to

why the shop room No.31 which was concededly allotted

to his son Pradeep Kumar Gupta was not suitable for

opening the shop for sale of clothes and tailoring

materials. Referring to the sketch map attached to the

plaint, the High Court came to the conclusion that

sufficient alternative accommodation was already

available with the plaintiff-landlord at the time of filing the

suit and also due to the subsequent development of one

more shop room being vacated by Kailash Jatav during

pendency of the suit. The High Court was of the view

that the courts below had ignored the relevant fact

situation which is manifest from the materials on record

and the finding accepting the plea of bonafide

requirement of the landlord by the courts was vitiated

on that ground. The High Court being conscious of the

position that bonafide requirement in ordinary

circumstances is a question of fact which is not to be

interfered with in second appeal felt persuaded to hold to

the contrary in the facts and circumstances on record in

view of the glaring mistake leading to manifest injustice

in the present case. Accordingly, the High Court set

aside the concurrent judgments of the courts below and

dismissed the suit for eviction of the defendant. The

High Court maintained the decree passed by the courts

below for recovery of rent by the plaintiff from the

defendant.

Hence this appeal by the plaintiff.

We have heard learned counsel appearing for

both sides at length. The main thrust of the argument of

Shri K.N.Shukla, learned senior counsel appearing for

the appellant, was that the High Court committed an

error in interfering with the concurrent judgments of the

Courts below holding that the plaintiff had successfully

established his bonafide requirement for the non-

residential accommodation. He further contended that

the judgment of the High Court is clearly unsustainable in

view of the limited jurisdiction vested under Section 100

of the Code of Civil Procedure.

Per contra Shri H.S.Parihar, learned counsel

appearing for the respondent supported the judgment of

the High Court. He urged that in the facts and

circumstances of the case as found from the evidence

the High Court rightly held that the concurrent judgments

of the Courts below were manifestly erroneous and

patently illegal.

From the discussions in the foregoing

paragraphs , the question that arises for determination is

whether in the facts and circumstances of the case, the

High Court was justified in interfering with the concurrent

judgments of the courts below in holding that the plaintiff

required the premises bonafide for use of his son?

Section 12(1)(f) of the Act under which the eviction of the

tenant was sought and granted by the lower Courts,

reads as follows:

"Sec.12. Restriction on eviction of

tenants.-(1) Notwithstanding anything to

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the contrary contained in any other law or

contract, no suit shall be filed in any Civil

Court against a tenant for his eviction from

any accommodation except on one or

more of the following grounds only

namely:-

(a) xxxx xxx xxx

(b) xxxx xxx xxx

(c) xxxx xxx xxx

(d) xxxx xxx xxx

(e) xxxx xxx xxx

(f) that the accommodation let for non-

residential purposes is required bona-fide

by the landlord for the purpose of

continuing or starting his business or that

any of his major sons or unmarried

daughters if he is the owner thereof or for

any person for whose benefit the

accommodation is held and that the

landlord or such person has no other

reasonably suitable non-residential

accommodation of his own in his

occupation in the city or town concerned;"

The section, on a plain reading, is clear and specific.

The criteria to be fulfilled for an order of eviction under

the provision are :

i) that the non-residential accommodation is

required bonafide by the landlord for the

purpose of continuing or starting his business

or that of any of his major sons; and

ii) that the landlord or such person has no other

reasonably suitable non-residential

accommodation of his own in his occupation in

the city or town concerned.

(emphasis supplied)

The Legislature in enacting the provision has taken

ample care to avoid any arbitrary or whimsical action of a

landlord to evict his tenant. The statutory mandate is that

there must be first a requirement by the landlord which

means that it is not a mere whim or a fanciful desire by

him; further, such requirement must be bonafide which

is intended to avoid the mere whim or desire. The

'bonafide requirement' must be in praesenti and must be

manifested in actual need which would evidence the

Court that it is not a mere fanciful or whimsical desire.

The legislative intent is made further clear by making the

provision that the landlord has no other reasonably

suitable residential accommodation of his own in his

occupation in the city or town concerned. This

requirement lays stress that the need is pressing and

there is no reasonably suitable alternative for the

landlord but to get the tenant evicted from the

accommodation. Similar statutory provision is made in

sub-section (e) of Section 12(1) of the Act in respect of

accommodation let for residential purposes. Thus, the

legislative mandate being clear and unambiguous, the

Court is duty-bound to examine not merely the

requirement of the landlord as pleaded in the eviction

petition but also whether any other reasonably suitable

non-residential accommodation in his occupation in the

city/town is available. The judgment/order of the

court/authority for eviction of a tenant which does not

show that the court/authority has applied its mind to

these statutory requirements cannot be sustained and

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the superior court will be justified in upsetting such

judgment/order in appeal/second appeal/revision.

Bonafide requirement, on a first look, appears to be a

question of fact. But in recording a finding on the

question the court has to bear in mind the statutory

mandate incorporated in Section 12(1)(f). If it is found

that the court has not applied the statutory provisions to

the evidence on record in its proper perspective then the

finding regarding bonafide requirement would cease to

be a mere finding of fact, for such erroneous finding

illegally arrived at would vitiate the entire judgment. In

such case the High Court cannot be faulted for

interfering with the finding in exercise of its second

appellate jurisdiction under Section 100 of the Code of

Civil Procedure.

In this connection, we may refer to the

decision of this Court in the case of Shiv Sarup Gupta vs.

Dr.Mahesh Chand Gupta, (1999) 6 SCC 222, in which it

was held, inter alia, that "the term 'bona fide' or

'genuinely' refers to a state of mind. Requirement is not

a mere desire. The degree of intensity contemplated by

"requires" is much higher than in mere desire. The

phrase "required bonafide" is suggestive of legislative

intent that a mere desire which is the outcome of whim or

fancy is not taken note of by the rent control legislation.

A requirement in the sense of felt need which is an

outcome of a sincere, honest desire, in contradistinction

with a mere pretence or pretext to evict a tenant, on the

part of the landlord claiming to occupy the premises for

himself or for any member of the family would entitle him

to seek ejectment of the tenant". Therein it was further

held : "the High Court in revision is obliged to test the

order of the Rent Controller on the touchstone of

"whether it is according to law". For that limited purpose

it may enter into reappraisal of evidence, that is, for the

purpose of ascertaining whether the conclusion arrived

at by the Rent Controller is wholly unreasonable or is

one that no reasonable person acting with objectivity

could have reached on the material available."

Coming to the case on hand, the judgment of

the High Court clearly bears out the position that the

lower courts had failed to consider the requirement of the

section regarding availability of reasonable

accommodation in occupation of the landlord-appellant.

As noted earlier, at the time of filing the suit, one vacant

shop-room was in occupation of the landlord and in

course of the proceedings one more shoproom, on being

vacated by the tenant, came in his occupation. The High

Court has found that the landlord could easily make

arrangements for starting the shop which his son

Pradeep Kumar Gupta intends to open in the vacant

shoprooms. If any adjustment was necessary, then the

tenant-respondent could also have been offered an

alternate shoproom for his occupation. No such step

was taken by the landlord during all these years. During

the hearing of this appeal, we made a suggestion to the

learned counsel appearing for the landlord-appellant,

whether he is willing to permit the tenant-respondent to

occupy the shoproom presently in his (landlord)

occupation so that he may have a block of four

shoprooms for the business of himself and his son. The

learned counsel stated that the landlord, who was

present in the Court, declined to accept the suggestion.

On the discussions in the judgment there is

hardly any scope for doubt that the requirement of the

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landlord cannot be termed to be a bonafide requirement

within the meaning of the Statute (noticed above). The

High Court was justified in interfering with the concurrent

judgments in the contextual facts and the same does not

warrant any interference under Article 136 of the

Constitution of India.

Accordingly, the appeal is dismissed. The

judgment/decree passed by the High Court stands

No order however as to costs.