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2010 (4) Supreme 481
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Dr. B.S. Chauhan, Swatanter Kumar, JJ.
Dinesh Kumar — Appellant
versus
Yusuf Ali — Respondent
Civil Appeal No. 4244 of 2006
Decided on : 26-5-2010
(1996) 5 SCC 353; AIR 1988 SC 1422; AIR 1998 SC 1639; AIR 1999 SC 2507; AIR 1998 SC 602; AIR 2001 SC 2896 – Relied upon
(b) Code of Civil Procedure, 1908 – Section 100 – Second appeal does not lie on the ground of erroneous findings of facts if based on appreciation of the relevant evidence – Second appeal should be entertained only if substantial question of law is raised – Question of fact, question of law or substantial question of law and mixed question of fact and law should be properly determined. (Paras 12 to 15)
AIR 1998 SC 2730; AIR 1994 SC 678; AIR 1994 SC 678 – Relied upon
(c) Code of Civil Procedure, 1908 – Section 100 – Perversity – Second appeal can be entertained if the judgment appealed against is perverse – However the High Court must record a clear finding as to perversity. (Para 16)
AIR 2001 SC 1273; AIR 1998 SC 3063 – Relied upon
(d) Code of Civil Procedure, 1908 – Section 100 – Re-appreciation of evidence in second appeal is normally not permissible. (Para 18)
AIR 2000 SC 2108; AIR 2002 SC 1428; AIR 2007 SC 2306; AIR 2007 SC 248; AIR 2008 SC 2033 – Relied upon
(e) M.P. Accommodation Control Act, 1961 – Section 12(1)(f) – U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 – Section 21(1)(a) – U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 – Rule 16 – Bona fide personal need of the landlord is a question of fact and should not be normally interfered with in second appeal. (Para 23)
(2007) 4 SCC 465 – Relied upon
(f) Code of Civil Procedure, 1908 – Section 100 – Second appeal can be entertained even on question of fact if the courts below arrive at the conclusion by erroneous consideration of evidence. (Para 24)
(2007) 4 SCC 465; AIR 1992 SC 1604; (1996) 5 SCC 353; (1998) 6 SCC 423; AIR 2000 SC 534; AIR 2000 SC 1261 – Relied upon
(g) M.P. Accommodation Control Act, 1961 – Section 12(1)(f) – Mere continuation of long tenancy could not be a ground to reject the case of bona fide need. (Para 29)
(h) M.P. Accommodation Control Act, 1961 – Section 12(1)(f) – Partial eviction should be considered as an alternative. (Para 32)
Facts of the case:
1.The appellant-tenant was inducted by the respondent-landlord on 1.10.1978 in a shop in house No. 83, Main Street, Mhow for a non-residential purpose. The respondent-landlord enhanced the rent from time to time.
2.The respondent-landlord had taken a sum of Rs.35,000/- as loan from the appellant-tenant. Some amount therefrom was to be adjusted towards a part of monthly rent.
3.Respondent-landlord filed suit for eviction of the appellant on the grounds of nuisance and bona fide requirement for himself contending that he was carrying on business of plastic goods and shoes in a rented ‘Gumti’ measuring 3 ft. x 4 ft. on a Nalla. Respondent was in need of the disputed shop for carrying on his business along with his son Zulfikar Ali.
4.The Trial Court decreed the suit for eviction under Section 12(1)(f) of M.P. Accommodation Control Act, 1961 on the ground of bona fide n(e) M.P. Accommodation Control Act, 1961 – Section 12(1)(f) – eed, however, did not accept the plea of nuisance.
5.The first appellate court reversed the judgment of the trial court, but the High Court in second appeal reversed the judgment of the first appellate court thereby restoring the judgment of the trial court.
Finding of the Court:
There is no infirmity in the impugned judgment.
JUDGMENT
Dr. B.S. Chauhan, J. —
1.This appeal has been preferred against the judgment and order of the High Court of Madhya Pradesh dated 25th January, 2006 passed in Second Appeal No. 726 of 2003 by which the High Court while allowing the Second Appeal reversed the judgment and decree dated 16th October, 2003 passed by the First Appellate Court in First Appeal No. 2/2003 by which the First Appellate Court had reversed the judgment and decree dated 13.12.2002 passed by the Trial Court in Civil Suit No. 30A/1999 allowing the application of the landlord for eviction of the tenant.
2.Facts and circumstances giving rise to this appeal are that the appellant-tenant was inducted by the respondent- landlord on 1.10.1978 in a shop in house No. 83, Main Street, Mhow for a non-residential purpose on a monthly rent of Rs.150/-. The respondent-landlord enhanced the rent from time to time and ultimately it was enhanced on 1.3.1995 to the extent of Rs.700/-p.m. The respondent-landlord had taken a sum of Rs.35,000/- as loan from the appellant-tenant. Some amount therefrom was to be adjusted towards a part of monthly rent. Respondent-landlord filed suit No.30A/1999 on 1.4.1999 for eviction of the appellant on the grounds of nuisance and bone fide requirement for himself contending that he was carrying on business of plastic goods and shoes in a rented ‘Gumti’ measuring 3 ft. x 4 ft. on a Nalla. Respondent was in need of the disputed shop for carrying on his business alongwith his son Zulfikar Ali. Parties exchanged the affidavits and examined large number of witnesses in support of their respective claims before the Trial Court. The Trial Court, vide judgment and decree dated 13.12.2002, decreed the suit for eviction under Section 12(1)(f) of M.P. Accommodation Control Act, 1961 (hereinafter referred to as the ‘Act 1961’) on the ground of bona fide need, however, did not accept the plea of nuisance.
3.Being aggrieved, the appellant preferred the First Appeal No.2/2003 before the First Additional District Judge, Mhow and the same was allowed vide judgment and decree dated 16.10.2003 on the ground that the landlord had enhanced the rent from time to time; his son had been in employment in Dubai, therefore, the bona fide need was a pretext to enhance the rent or evict the tenant.
4.Being aggrieved, the landlord-respondent approached the High Court by filing Second Appeal No.726 of 2003 under Section 100 of the Code of Civil Procedure, which has been allowed vide judgment and order dated 25.1.2006. Hence, this appeal.
5.Mr. Manish Vashisht, learned counsel appearing for the appellant has vehemently submitted that the High Court committed grave error in entertaining the Second Appeal though no substantial question of law was involved therein. As to whether the courts below have rightly appreciated the evidence on record to find out as to whether need of the landlord is real and bona fide, is a question of fact. Therefore, the Second Appeal itself was not maintainable. The suit property is not required by the landlord as he is doing his business at another premises for last 35 years; his son is in employment in Dubai. Therefore, the appeal deserves to be allowed.
6.Per contra, Mr. A.K. Chitale, learned senior counsel appearing for the respondent-landlord has vehemently opposed the appeal contending that if the finding of fact recorded by the court below is found to be perverse, the High Court can entertain the Second Appeal and re-appreciate the evidence. The landlord is the best Judge to determine as to what is his requirement and what is the proper place of his business. A tenant cannot force the landlord to carry out his business in the rented premises of negligible dimension. Therefore, the judgment and order of the High Court does not warrant any interference. The appeal is liable to be dismissed.
7.We have considered the rival submissions of learned counsel for the parties and perused the record.
8.In Prativa Devi Vs. T.V. Krishnan,1 (1996) 5 SCC 353,
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