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CASE NO.:

Appeal (civil) 3663 of 1998

PETITIONER:

RAGAVENDRA KUMAR

RESPONDENT:

FIRM PREM MACHINERY AND CO.

DATE OF JUDGMENT: 07/01/2000

BENCH:

V.N. KHARE & S.N. PHUKAN

JUDGMENT:

JUDGMENT

2000 (1) SCR 77

The Judgment of the Court was delivered by :

PHUKAN, J. This appeal at the instance of defendant-tenant is directed

against the judgment and decree dated 14.5.98 passed by the High Court of

M.P. at Jabalpur in Second Appeal No. 55/98 reversing the judgment and

decree of two courts below passed in favour of the appellant.

The appellant herein shall be described as plaintiff-landlord and

respondent as defendant-tenant hereinafter for the sake of convenience.

The plaintiff filed a suit under Section 12(l)(f) of M.P. Accommoda-tion

Control Act, 1961 for eviction of the defendant- tenant on the ground of

bona fide requirement as he required the suit premises for opening a show-

room of Indo-Suzuki motor-cycles and TVS-50 mopeds for which he was

appointed sub-dealer. The trial court came to the finding that the

plaintiff- landlord was in bona fide need of the disputed premises for

doing his own business and for this purpose no other suitable shop was

available to him in the city of Chattarpur. The lower appellate court after

consider-ing the evidence on record upheld the above finding of the trial

court and dismissed the appeal filed by the defendant-tenant.

The High Court in the second appeal framed the following two questions

which according to the High Court were substantial questions of law.

(i) "Whether in view of the fact that the respondent admitted that there

are number of plots, houses and shops in his possession, the lower

appellate court could not have decreed the suit of the respondent under

Section 12(l)(f) of M.P. Accommodation Control Act, 1961?

(ii) Whether in view of the admission of the respondent the trial court

wrongly placed onus on the appellant to prove that the alternative

accommodation is suitable for the business of the respondent?"

The learned single Judge of the High Court was of the view that the Courts

below had wrongly placed the onus on the defendant- tenant of proving that

alternative accommodation was not suitable for the plaintiff-landlord and

that courts below had ignored the fact that plaintiff-landlord had admitted

that he and his father were in possession of certain shops and had not

stated why these alternative shops were not suitable for their business or

they were vacant. On these grounds the learned Single Judge set aside both

the judgments and decrees of the courts below.

We have heard Mr. A.K. Sanghi, learned counsel for the appellant and Mr.

Satish Chandra, learned senior counsel for the respondent.

The learned counsel Mr. Sanghi for the appellant has urged that the High

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Court in the second appeal erred in law by setting aside the concur-rent

finding of fact of the courts below by re-appreciating the evidence on

record. In this connection learned counsel has placed reliance on a

decision of this Court.

In Kashibai w/o Lachiram and Another v. Parwatibai w/o Lachiram and Others,

[1995] 6 SCC 213, this Court inter alia held that there is no jurisdiction

to entertain the second appeal on the ground of erroneous finding of fact,

based on appreciation of the relevant evidence.

The only question to be decided in the suit was whether plaintiff-landlord

wanted the suit premises for the bona fide requirement. The bona fide

requirement of the landlord does not give rise to any substantial question

of law and it has to be decided on the appreciation of evidence. This view

was also expressed by this Court in Ram Prasad Rajak v. Nand Kumar & Bros.

& Anr., JT (1998) 5 SC 540. The learned Single Judge of the High Court

while formulating first substantial question of law proceeded on the basis

that the plaintiff-landlord admitted that there were number of plots, shops

and houses in his possession. We have been taken through the judgments of

the courts below and we do not find any such admission. It is true that the

plaintiff-landlord in his evidence stated that there were number of other

shops and houses belonging to him but he made a categorical statement that

his said houses and shops were not vacant and that suit premises is

suitable for his business purpose. It is settled position of law that the

landlord is best judge of his requirement for residential or business

purpose and he has got complete freedom in the matter, (See: Prativa Devi

(Smt.) v. T.K Krishnan, [1996] 5 SCC 353. In the case in hand the

plaintiff-landlord wanted eviction of the tenant from the suit premises for

starting his business as it was suitable and it cannot be faulted.

After the death of the father of the plaintiff-landlord the plaint was

amended and the following was added as para 6(a) :

That the father of the plaintiff had expired in the month of February, 1992

and the buildings left by the father of the plaintiff were already occupied

by tenants, and the owners of these build-ings are plaintiffs mother and

other legal heirs of plaintiffs father Durga Prasad. No building having

ownership of the plaintiffs father Durga Prasad is vacant or in possession

of the plaintiff.

No additional written statement was filed on behalf of the defendant-tenant

and no further evidence was adduced after the amendment by either parties.

The learned Single Judge of the High Court has found fault as the

plaintiff-landlord did not give evidence after above amendment of the

plaint. In our opinion it is not necessary as the above amendment was not

rebutted by the defendant-tenant.

The learned Single Judge also erred in law in holding that lower appellate

court wrongly placed onus on the defendant-tenant. It is true that the

lower appellate court was of the view that the burden of proving that the

plaintiff-landlord has many shops in the city, lied with the defendant-

tenant but Court did so while appreciating the evidence on record adduced

by the parties. The above view was expressed by the appellate court after

holding that on preliminary documents and evidence produced before the

courts below it was evident that the disputed shop was required by the

plaintiff-landlord for bona fide need. On going through the judgment of the

lower appellate court we find the appellate court decided the appeal on

preponderance evidence not on the basis of burden of proof. We may state

here that trail court clearly recorded that the burden was on the

plaintiff-landlord to prove that he was in bona fide need of the suit

premises.

Without considering whether the two questions framed by the learned Single

Judge of the High Court in second appeal were substantial questions of law

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or not, we find that these two questions were framed contrary to the

judgments of the courts below. Mr. Satish Chandra, learned senior counsel

while drawing our attention to the judgment of the learned Single Judge has

urged that the plaintiff-landlord and his late father had number of shops,

houses including the disputed shop but we find that there is nothing on

record to show that any of such shop premises was vacant and suitable for

the purpose of proposed business.

Mr, Satish Chandra, learned senior counsel has drawn our attention to the

decision of this Court in Dilbagrai Punjabi v. Sharad Chandra, AIR (1988)

SC 1858 - (1988) 3 JT 308 in which this Court held that the High Court in

the second appeal was fully justified in reversing the findings of the

courts below. This Court took note of the fact that the High Court was

right in pointing out that the courts below had seriously erred in not

considering the entire evidence on record including documents where there

was an admission. in other words this was a case of non-consideration of

evidence on record but that is not so in the case in hand. The second

decision of this Court on which reliance has been placed by Mr. Satish

Chandra, learned senior counsel was in Jagdish Singh v. Natthu Singh, AIR

(1992) SC 1604. This Court held that the High Court in the second appeal is

not precluded from recording proper findings if the findings of the courts

below were vitiated by non-consideration on relevant evidence or by essen-

tially erroneous approach to the matter. In the case in hand nothing has

been brought to our notice that the courts below did not consider relevant

evidence on record or the approach to the matter was wrong. Therefore, the

above decisions are aot applicable to the case in hand. For the reasons

stated above we are of the considered opinion that the High Court in the

second appeal erred in law by setting aside concur-rent findings of facts

of the courts below by re-appreciating the entire evidence on record.

In result appeal is allowed by setting aside the impugned judgment of the

High Court and the judgments and decrees of the courts below are restored.

Cost on the parties.