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2000 Supreme(MP) 31

2000 (1) JLJ 186
(SUPREME COURT)
V.N. Khare and S.N. Phukan, JJ.
Ragavendra Kumar, v. Firm Prem Machinery and Co.
Civil Appeal No. 3663 of 1998: against the judgment and decree passed by M. P. High Court in second Appeal No. 55 of 1998: Decided on 7.1.2000.

Advocates:
A.K. Sanghi for appellant; Satish Chandra with T. Tandon for respondent.

Headnote:(1) Civil P.C. 1908 -- S. 100 -- erroneous finding of fact--based on appreciation of evidence -- High Court has no jurisdiction to interfere in second appeal. (1995) 6 SCC 213 relied on Para 8 (2) Accommodation

       (2) Control Act, 1961 (M.P.)--S.12(1)(e) and (f) -bonafide requirement of landlord -- does not give rise to any substantial question of law. (1998) 6 SCC 748 relied on. [Para 9.]

       (3) Civil P.C. 1908 -- S. 100(4) -- bonafide requirement of landlord -- does not give rise 10 any substantial question of law. (1998) 6 SCC 748 relied on. [Para 9]

       (4) Accommodation Control Act, 1961 (M.P.)--S.12(1)(f)-- alternative accommodation explained as not vacant -- landlord is best Judge of his requirement -- he cannot be non-suited when he says that disputed shop is suitable for his business. (1996) 5 SCC 353 relied on. [Para 10]

       (5) Civil P.C. 1908--O. 6 R 2 and O. 8 R. 3 -- fact averred in plaint hut not rebutted in written statement -- such fact need not be proved. [Para 13]

       (6) Accommodation Control Act, 1961 (M.P.)--S.12(1)(f)-- alternative accommodation -- not shown to be vacant or suitable--not material. [Para 15

       (7) Civil P.C. 1908--S.100--Courts below not considering entire evidence on record -- High Court may interfere in second appeal. 1988 JLJ 560 (SC) and (1992) I SCC 642 relid on. [Para 16]

       ¼1½ flfoy çfØ;k lafgrk] 1908&/kkjk 100&rF dk xyr fu"d"kZ&lk{; ds ewY;kadu ij vk/kkfjr&mPp U;k;ky; dks f}rh; vihy esa gLr{ksi dh vf/kdkfjrk ugha gSA ¼1995½ 6 ,l lh lh 213 voyafcrA ¿iSjk 8

       ¼2½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½&/kkjk 12 ¼1½ ¼M-½ rFkk ¼p½&Hkw&Lokeh dh okLrfod vko‘;drk&fof/k dk dksbZ lkjoku ç‘u mn~Hkwr ugha gksrkA ¼1998½ 6 ,l lh lh 748 voyafcrA ¿iSjk 9

       ¼3½ flfoy çfØ;k lafgrk] 1908&/kkjk 100 ¼4½&Hkw&Lokeh dh okLrfod vko‘;drk&fof/k dk dksbZ lkjoku ç‘u mn~Hkwr ugha gksrkA ¼1998½ 6 ,l lh lh 748 voyafcrA ¿iSjk 9

       ¼4½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½&/kkjk 12 ¼1½ ¼p½&vuqdYih LFkku dk Li"Vhdj.k [kkyh ugha gksus ds :i esa fn;k x;k&Hkw&Lokeh viuh vko‘;drk dk loksZÙke U;k;k/kh‘k gS&og oknkolkfur ugha fd;k tk ldrk tc og ;g dgrk gS fd oknxzLr nqdku mlds dkjckj ds fy, mi;qDr gSA ¼1996½ 5 ,l lh lh 353 voyafcrA ¿iSjk 10

       ¼5½ flfoy çfØ;k lafgrk] 1908&vk-6 fu-2 rFkk vk-8 fu-3&rF okni= esa çdfFkr fdarq fyf[kr dFku esa [kafMr ugha&,slk rF; lkfcr fd;k tkuk vko‘;d ughaA ¿iSjk 13

       ¼6½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½&/kkjk 12¼1½ ¼p½&vuqdYih LFkku&[kkyh vFkok mi;qDr gksuk nf‘kZr ugha&rkfRod ughaA ¿iSjk 15

       ¼7½ flfoy çfØ;k lafgrk] 1908&/kkjk 100&fupys U;k;ky;ksa }kjk vfHkfyf[kr laiw.kZ lk{; ij fopkj ugha&mPp U;k;ky; }kjk f}rh; vihy esa gLr{ksi fd;k tk ldrk gSA 1988 ts ,y ts 560 ¼mPpre U;k-½ rFkk ¼1992½ 1 ,l lh lh 642 voyafcrA ¿iSjk 16

JUDGMENT

Phukan, J.–1. This appeal at the instance of the defendant tenant is directed against the judgment and decree dated 14.5.1998 passed by the High Court of M.P. at Jabalpur in Second Appeal No. 55 of 1998 reversing the Judgment and decree of the two Courts below passed in favour of the appellant.

2. The appellant herein shall be described as the plaintiff landlord and the respondent as the defendant tenant hereinafter for the sake of convenience.

3 The plaintiff filed a suit under Section 12(1)(f) of the M.P. Accommodation 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 showroom of Ind-Suzuki motorcycles 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 considering the evidence on record upheld the above finding of the trial Court and dismissed the appeal filed by the defendant tenant.

4. 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 a 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(1)(f) of the 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?"

5. 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 the Courts below had ignored the fact that the 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 decree's of the Courts below.

6 We have heard Mr. A.K. Sanghi, learned counsel for the appellant and Mr. Satish Chandra learned Senior Counsel for the respondent.

7. The learned counsel Mr. Sanghi for the appellant has urged that the High Court in the second appeal erred in law by setting aside the concurrent finding of fact of the Courts below by reappreciating the evidence on record. In this connection learned counsel has placed reliance on a decision of this Court.

8. In Kashibai v. Parwatibai [( 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.

9. The only question to be decide in the suit was whether the 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 and Bros JT (1998) 5 SC 540].

10. The learned Single Judge of the High Court while formulating the first substantial question of law proceeded on the basis that the plaintiff landlord admitted that there were a 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 a 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 the suit premis




























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