Dinesh Kumar vs Yusuf Ali

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 (1996) 5 SCC 353, this

Court held that the landlord is the best judge of his requirement

and courts have no concern to dictate the landlord as to how and

in what manner he should live.

9. However, in Ram Dass Vs. Ishwar Chander & Ors. AIR 1988

SC 1422, this Court held that `bona fide need' should be genuine,

honest and conceived in good faith. Landlord's desire for

possession, however honest it might otherwise be, has, inevitably,

a subjective element in it. The "desire" to become "requirement"

must have the objective element of a "need" which can be decided

only by taking all relevant circumstances into consideration so

that the protection afforded to tenant is not rendered illusory or

whittled down. The tenant cannot be evicted on a false plea of

requirement or "feigned requirement". (See also Rahabhar

Productions Pvt. Ltd. Vs. Rajendra K. Tandon AIR 1998 SC 1639;

and Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta AIR 1999 SC 2507).

10. In Malpe Vishwanath Acharya & Ors. Vs. State of

Maharashtra & Anr. AIR 1998 SC 602, this Court emphasised the need for social legislations like the Rent Control Act striking a

balance between rival interests so as to be just to law. "The law

ought not to be unjust to one and give a disproportionate benefit

or protection to another section of the society."

11. In Siddalingamma & Anr. Vs. Mamtha Shenoy AIR 2001 SC 2896,

this Court held that while determining the case of eviction of the

tenant, an approach either too liberal or too conservative or

pedantic must be guarded against. If the landlord wishes to live

with comfort in a house of his own, the law does not command or

compel him to squeeze himself and dwell in lesser premises so as

to protect the tenant's continued occupation in tenancy premises.

However, the bona fide requirement of the landlord must be

distinguished from a mere whim or fanciful desire. It must be

manifested in actual need so as to convince the Court that it is

not a mere fanciful or whimsical desire. The need should be bona

fide and not arbitrary and the requirement pleaded and proved must

neither be a pretext nor a ruse adopted by the landlord for

evicting the tenant. Therefore, the Court must take relevant

circumstances into consideration while determining the issue of

bona fide need so that the protection afforded to a tenant is not

rendered illusory or whittled down.

12. Second appeal does not lie on the ground of erroneous

findings of facts based on appreciation of the relevant evidence.

The High Court should not entertain a second appeal unless it raises a substantial question of law. It is the obligation on the

Court of Law to further the clear intendment of the Legislature

and not to frustrate it by ignoring the same.

13. In Ram Prasad Rajak Vs. Nand Kumar & Bros. & Anr., AIR 1998

SC 2730, this Court held that existence of substantial question of

law is a sine-qua-non for the exercise of jurisdiction under

Section 100 of the Code and entering into the question as to

whether need of the landlord was bonafide or not, was beyond the

jurisdiction of the High Court as the issue can be decided only by

appreciating the evidence on record.

14. There may be a question, which may be a "question of fact",

"question of law", "mixed question of fact and law" and

"substantial question of law." Question means anything inquired;

an issue to be decided. The "question of fact" is whether a

particular factual situation exists or not. A question of fact, in

the Realm of Jurisprudence, has been explained as under:-

"A question of fact is one capable of being answered by way of demonstration. A question of opinion is one that cannot be so answered. An answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong."

(Vide Salmond, on Jurisprudence, 12th Edn. page 69, cited in

Gadakh Yashwantrao Kankarrao Vs. E.V. alias Balasaheb Vikhe Patil

& ors., AIR 1994 SC 678).

15. In Reserve Bank of India & Anr. Vs. Ramakrishna Govind

Morey, AIR 1976 SC 830, this Court held that whether trial Court

should not have exercised its jurisdiction differently, is not a

question of law or a substantial question of law and, therefore,

second appeal cannot be entertained by the High Court on this

ground.

16. In Kulwant Kaur & Ors. Vs. Gurdial Singh Mann (dead) by

L.Rs. & Ors. AIR 2001 SC 1273, this Court held that the question

whether Lower Court's finding is perverse may come within the

ambit of substantial question of law. However, there must be a

clear finding in the judgment of the High Court as to perversity

in order to show compliance with provisions of Section 100 CPC.

Thus, this Court rejected the proposition that scrutiny of

evidence is totally prohibited in Second Appeal.

17. In Sheel Chand Vs. Prakash Chand, AIR 1998 SC 3063, this

Court held that question of re-appreciation of evidence and

framing the substantial question as to whether the findings

relating to factual matrix by the court below could vitiate due to

irrelevant consideration and not under law, being question of fact

cannot be framed.

18. In Rajappa Hanamantha Ranoji Vs. Mahadev Channabasappa &

Ors. AIR 2000 SC 2108, this Court held that it is not permissible

for the High Court to decide the Second Appeal by re-appreciating the evidence as if it was deciding the First Appeal unless it

comes to the conclusion that the findings recorded by the court

below were perverse.

19. In Jai Singh Vs. Shakuntala, AIR 2002 SC 1428, this Court

held that it is permissible to interfere even on question of fact

but it has to be done only in exceptional circumstances. The Court

observed as under:-

"While scrutiny of evidence does not stand out to be totally prohibited in the matter of exercise of jurisdiction in the second appeal and that would, in our view, be too broad a proposition and too rigid an interpretation of law not worth acceptance but that does not also clothe the superior courts within jurisdiction to intervene and interfere in any and every matter- it is only in very exceptional cases and on extreme perversity that the authority to examine the same in extensor stands permissible it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection."

20. In P. Chandrasekharan & Ors. Vs. S. Kanakarajan & Ors. AIR

2007 SC 2306, this Court reiterated the principle that

interference in second appeal is permissible only when the findings

are based on misreading of evidence or are so perverse that no

person of ordinary prudence could take the said view. More so, the

Court must be conscious that intervention is permissible provided

the case involves a substantial question of law which is altogether

different from the question of law. Interpretation of a document which goes to the root of title of a party may give rise to

substantial question of law.

21. In Shakuntala Chandrakant Shreshti Vs. Prabhakar Maruti

Garvali & Anr., AIR 2007 SC 248, this Court considered the scope of

appeal under Section 30 of the Workmen's Compensation Act, 1923 and

held as under :

"Section 30 of the said Act postulates an appeal directly to the High Court if a substantial question of law is involved in the appeal..... A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law............ A question of law would arise when the same is not dependent upon examination of evidence, which may not require any fresh investigation of fact. A question of law would, however, arise when the finding is perverse in the sense that no legal evidence was brought on record or jurisdictional facts were not brought on record."

22. Similar view has been reiterated by this Court in Anathula

Sudhakar Vs. P. Buchi Reddy (Dead) by LRs & Ors. AIR 2008 SC 2033.

23. In Rishi Kumar Govil Vs. Maqsoodan and Ors. [(2007) 4 SCC

465], this Court while dealing with the provisions of Section

21(1)(a) of the U. P. Urban Buildings (Regulation of Letting,

Rent and Eviction) Act, 1972 and Rule 16 of the U. P. Urban

Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972,

held that the bona fide personal need of the landlord is a

question of fact and should not be normally interfered with.

24. There is no prohibition to entertain a second appeal even

on question of fact provided the Court is satisfied that the

findings of the courts below were vitiated by non-consideration

of relevant evidence or by showing erroneous approach to the

matter. (Vide Jagdish Singh Vs. Nathu Singh, AIR 1992 SC 1604;

Smt. Prativa Devi Vs. T.V. Krishnan, (1996) 5 SCC 353; Satya

Gupta @Madhu Gupta Vs. Brijesh Kumar, (1998) 6 SCC 423 Ragavendra

Kumar Vs. Firm Prem Machinery & Co., AIR 2000 SC 534; and Molar

Mal Through Lr. Vs. M/s. Kay Iron Works Pvt. Ltd., AIR 2000 SC

1261).

25. Thus, the law on the subject emerges to the effect that

Second Appeal under Section 100 CPC is maintainable basically on

a substantial question of law and not on facts. However, if the

High Court comes to the conclusion that the findings of fact

recorded by the courts below are perverse being based on no

evidence or based on irrelevant material, the appeal can be

entertained and it is permissible for the Court to re-appreciate

the evidence. The landlord is the best Judge of his need,

however, it should be real, genuine and the need may not be a

pretext to evict the tenant only for increasing the rent.

26. The instant case is required to be examined in the light

of the aforesaid settled legal propositions.

27. The admitted facts of the case are that the suit property,

18 ft. x 14 ft. i.e. 152 Sq.ft., is situated at a main road in

the market. The premises in which the landlord is running his

business is 3 ft. x 4 ft. at a monthly rent of Rs. 75/-. The

`Gumti' is situated on the Nalla on the land of Cantonment Board.

The said `Gumti' belongs to one Mohd. Hussain who had established

it by encroaching upon the land of the Cantonment Board. Son of

the landlord, namely, Zulfikar Ali is in service in Dubai for

last several years. The suit premises was earlier on rent with

Dental Surgeon Dr. Sharma from 1970 to 1978 who vacated it

considering the need of the landlord. After eviction of Dr.

Sharma, it was given on rent to the appellant at a monthly rent

of Rs.150/-p.m. The rent was enhanced to the tune of Rs.400/-p.m.

in 1990, to Rs.500/-p.m in 1991 and further enhanced to Rs.700/-

p.m. on 1.3.1995. Landlord had taken loan of Rs.35,000/- from

the tenant and a part of it was to be adjusted toward the monthly

rent for the said premises.

28. The Trial Court after considering the pleadings framed as

many as 10 issues. However, the relevant issues had been Issue

Nos. 1 and 3 regarding the bona fide and real need of the

landlord. After considering the evidence on record including

increase in rent from time to time and the fact that after

evicting Dr. Sharma, Dental Surgeon, in 1978, the landlord in

spite of starting his business in the suit premises rented it out

to the appellant, came to the conclusion that need of the landlord was bona fide as he was running his business on a rented

premises having a very small area at an unhygienic place i.e.

platform on a Nalla. No other alternative or convenient place

was available to him to shift/start his business and there had

been no increase in rent of the suit premises after 1995. The

said findings have been disturbed by the First Appellate Court

mainly on the ground that the landlord did not require the suit

premises for running his business, rather it was a pretext to

increase the rent as rent had been increased from time to time

and the landlord did not occupy the premises after being vacated

by Dr. Sharma, Dentist. These circumstances made it clear that

the landlord wanted to achieve the ulterior purpose. The

landlord could be the best Judge of his need but he cannot be an

arbitrary dictator. There was no evidence to show that his son

Zulfikar Ali was interested to come back and join his father in

business.

29. The High Court reached the conclusion that the landlord,

in spite of the fact that he was owner of the suit premises could

not be forced to continue his business in a shop of negligible

area in a `Gumti' made on platform on Nalla. Mere continuation of

long tenancy could not be a ground to reject the case of bona

fide need.

30. The admitted facts referred to hereinabove, make it clear

that the appellant is enjoying the tenancy of the premises measuring 152 sq.ft. for the last 32 years. The landlord-

respondent is running his business at a `Gumti' measuring 3 ft. x

4 ft. made on a platform on a Nalla in Cantonment Board

established by encroaching upon the public land. The demand of

plastic goods in which the landlord is dealing is increasing day

by day. Undoubtedly after evicting Dr. Sharma from the suit

premises, the landlord has not started his business in the said

premises but the incidence which occurred several decades ago

cannot be relevant to determine the actual controversy for the

reason that need of the landlord is to be examined as per the

circumstances prevailing on the date of the institution of the

case. Thus, an incident too remote from the date of institution

of suit may not be relevant for consideration at all.

Undoubtedly, the rent has been increased from time to time and it

is not the case of the appellant-tenant that the rent had been

enhanced arbitrarily or unreasonably or it could not be enhanced

in law. The fact that rent had not been enhanced since 1995, the

First Appellate Court erred in drawing the inference that need of

the landlord may not be bona fide and it might be a pretext for

increasing the rent or to evict the tenant. There is no pleading

by the tenant that any attempt had ever been made by the landlord

to enhance the rent during the period of 7 years prior to the

date of institution of the suit. Undoubtedly, Zulfikar Ali, son

of the landlord is continuing his service in Dubai for last

several years and he has not appeared in witness box to prove

that he was willing to start business with his father, remains immaterial or cannot put balance in favour of the appellant-

tenant for the reason that the landlord himself wants to start

his business in the suit premises. Therefore, it remains

immaterial whether his son, Zulfikar Ali wants to join his

business or not.

31. In such a fact-situation, we do not find any fault with

the judgment of the High Court that it has committed an error

reaching the conclusion that finding recorded by the First

Appellate Court were perverse.

32. However, in the facts and circumstances of the case, the

High Court did not consider the relevant factors i.e. as

what would be the magnitude of his business, and whether

partial eviction of the appellant could serve the purpose

of both the parties.

33. Thus, in order to meet the ends of justice the appeal is

allowed partly. The landlord/respondent shall recover

possession of half of the area of the premises dividing

the same either on the side of "Bohara Masjid" or on the

other side.

Appeal stands disposed of accordingly. No costs.

.........................................J. (Dr. B.S. CHAUHAN) .........................................J. (SWATANTER KUMAR) New Delhi, May 26, 2010