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1998(1) Supreme 29
Supreme Court of India
(From Madhya Pradesh High Court)
Dr. A.S. Anand & K. Venkataswami, JJ.
Smt. Mehrunnisa & Others -Appellants
versus
Smt. Visham Kumari & Another -Respondents
Civil Appeal No. 10798 of 1990
Decided on 2-12-1997
Counsel for the Parties :
For the Appellants : D.D. Thakur, Sr. Advocate and Vivek Gambhir, Advocate.
For the Respondents : Dr. Shankar Ghosh, Sr. Advocate, S.S. Khanduja, B.K. Satija, Y.P. Dhingra, Advocates.
Held : In the case on hand unfortunately the lower appellate court before reversing the finding of the trial court on the issue of bona fide requirement of the landlady for starting a cloth business failed to read the entire evidence and take into consideration all the documents placed before the trial Court. Therefore, it was rightly contended by Dr. Ghosh, learned Senior Counsel for the respondent, that the High Court was justified in interfering with the finding of the first appellate court. A reading of the judgment of the lower appellate court leaves no doubt that it has looked into the contents of the first notice whereunder the landlady has stated that she required the premises for her husband’s office and ignored the notice issued just before the filing of the suit. The lower appellate court has also failed to give due importance to the fact that the landlady has not taken any steps to file suit for eviction pursuant to the notice issued on two earlier occasions and the ground stated in the notice preceding the suit are relevant for the purpose of deciding the issue. (Para 11)
(ii) Civil Procedure Code, 1908-Section 100-Second Appeal-Scope -Finding of District Court based on appreciation of evidence-Binding upon High Court when. (M.P. Accommodation Control Act, 1961).
Judgment
K. Venkataswami, J.-This appeal by special leave is preferred by the legal representatives of the deceased tenant against whom an order of eviction from the suit premises was passed by the High Court.
2. The respondent-landlady the owner of the suit premises under a registered sale deed dated 31.3.1975. On 12.7.1976, the respondent issued a notice to the tenant terminating the tenancy stating inter alia that the suit premises, a non-residential one, was required for using it as an office for her husband, a practising lawyer. It was also stated that the tenant has defaulted in payment of rent and has sub-let the premises without written consent of the landlady. However, no action was taken pursuant to the notice dated 12.7.1976. The respondent issued a second notice through lawyer on 9.7.1977 stating that the suit premises was required for her cloth business which she intended to start. Even on the basis of the second notice, no action was taken by the respondent-landlady. A third notice was also issued by the respondent-landlady on 12.10.1979 repeating the same allegations contained in the second notice dated 9.7.1977. This time, the landlady filed a suit for eviction on the basis of the notice issued on 12.10.1979. The grounds for eviction as given in the plaint were that the landlady required the premises for starting a cloth business; that the tenant has defaulted in payment of rent for the period from 1.4.1979 to 30.11.1979 and that the tenant has sub-let the premises unauthorisedly.
3. The tenant resisted the suit for eviction denying the requirement of the landlady for her new business. It was also denied by the tenant that there was default in payment of rent. The allegation of sub-tenancy was also denied.
4. The trial Court on the basis of the pleadings framed five issues. The plaintiff (respondent herein) examined herself and three other witnesses in support of her pleadings. Likewise, the deceased defendant- tenant, apart from examining himself, examined six other witnesses in support of his pleadings.
The trial Court in its detailed judgment found that the requirement of the landlady for starting cloth business was bona fide and that she was not in possession of any other vacant shop of her own for the said requirement : that the landlady failed to establish the case of sub-letting and also the case of default in payment of rent. In other words, out of three grounds put forward in support of the suit for eviction, the trial Court decreed the suit only on the ground of bona fide requirement by the landlady for starting the cloth business. We are, therefore, not concerned with the other grounds for eviction.
5. Aggrieved by the judgment of the trial Court, the deceased tenant preferred an appeal to the appellate Court. The lower appellate Court, after re-appreciating the pleadings and evidence, came to a different conclusion on the bona fide requirement of the landlady for starting a cloth business. According to the lower appellate Court, the landlady failed to establish her case of the requirement of the suit premises for starting a cloth business. The lower appellate Court reversed the judgment and decree of the trial Court mainly on the ground that the landlady issued a first notice on 12.7.1976 giving out an entirely different ground for eviction, namely, that she required the premises for the use of her husband as lawyer’s office. Subsequently, according to the first appellate Court, in the light of the judgments of the High Court that such a claim cannot be the basis for eviction under Section 12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter called the ‘Act’), the landlady has changed her stand and put forward an entirely new ground for eviction, namely, that the premises was required for starting a cloth business. According to the lower appellate Court, the change in the stand of the landlady exposed her intention to evict the tenant for some other motive. T
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