M/S.Bhanwarlal Dugar & Ors vs Bridhichand Pannalal & Ors

CIVIL APPEAL NO. 4889_ OF 2010 (Arising out of Special Leave Petition (Civil) NO. 33402 OF 2009)

M/S. Bhanwarlal Dugar & ORS. ... Appellants

Versus

Bridhichand Pannalal & Ors. ... Respondents

JUDGMENT

B. SUDERSHAN REDDY, J.

Leave granted.

2. This is a landlord's appeal by Special Leave against the

order of the High court reversing the concurrent decree of

eviction from commercial premises at Guwahati in Assam. The

Trial Court, the Appellate Court concurrently found that the

respondent was a wilful defaulter and liable to be evicted. They

have also found that the appellants herein required the premises

for their own business purpose. The High Court in exercise of

its jurisdiction under Section 115 of the Code of Civil Procedure

reversed the concurrent findings of facts and accordingly

dismissed the suit for eviction filed by the appellants against

the respondents.

3. The premises in question is a commercial one. There is no

dispute of landlord and tenant relationship between the parties.

1 Only two substantial issues framed by the Trial Court were: (1)

whether the respondent committed any default in payment of rents

since April, 1993 as pleaded by the appellants? (2) Whether the

appellants required the suit premises bona fide for their own

use? On both the issues the Trial Court as well as the Appellate

Court concurrently held in favour of the appellants.

4. The High Court upon re-appreciation of evidence reversed

the findings of the courts below.

5. In this appeal, Shri Vijay Hansaria, learned senior

counsel appearing on behalf of the appellants strenuously

contended that the High Court committed a manifest error in

interfering with the concurrent findings of facts arrived at by

the courts below by reappreciating the evidence which is

impermissible in law. He also contended that the appellants

clearly made out and established their case that the respondent

committed default in payment of rents since April, 1993 till the

date of filing of the suit. The appellants have also

successfully established that the premises in question is

required by them for their own business purposes. His submission

was that the High Court exceeded its jurisdiction in interfering

with the concurrent findings of facts. Shri P.S. Narasimha,

learned senior counsel appearing on behalf of the respondent

contended that the High Court on facts was justified in reversing

the findings of the courts below inasmuch as the findings

recorded by the courts below were perverse in nature. It was

submitted that the courts below committed serious error in

2 exercise of their jurisdiction and ignoring vital evidence and

in such circumstances the High Court was well within its

jurisdiction to correct the errors committed by the courts below

in exercise of their jurisdiction.

Bona fide Requirement of the Premises:

6. The appellants in their plaint in clear and categorical

terms pleaded that the schedule premises is bona fide required by

them "for their own use as they and their sons have to do their

own business from the schedule premises,............." The respondent in

the written statement pleaded that the schedule premises is not

required bona fide by the appellants for their own use. That

apart, it was further pleaded that the appellants already started

new business in the year, 1997 in their own premises. "Besides

this, the plaintiffs have a number of tenants under them such as

Canara Bank, Madan Electricals etc. in the same building, but no

case has been filed against them for vacating the premises which

shows that the plaintiffs are not in need of premises for their

own use and occupation.........." Plaintiff No.2 examined himself as

PW-1 in the present case. It is specifically stated by him that

the premises is required for starting new business for own sons

for which purposes they have sufficient funds and also can manage

required resources from the financial institutions for starting

new business. In the cross-examination it was suggested to PW-1

that he did not state in the plaint as to what type of business

the plaintiffs intended to start in that premises. It was not

suggested that the appellants did not possess the financial

3 resources for commencing their own business in the suit premises.

It was however, suggested that many other premises were under the

occupation of the tenants which suggestion was accepted by PW-1.

7. The Trial Court upon appreciation of evidence available on

record found that the appellants/plaintiffs do not have any other

"suitable place to start their own business except the suit

premises which is situated on the ground floor". The Appellate

Court without reappreciating the evidence available on record

merely copied the findings of the Trial Court in verbatim. It is

needless to state that a Regular First Appeal is nothing but

rehearing of the suit and the Appellate Court is bound to

appreciate the evidence available on record and arrive at its own

conclusions. Only such conclusions arrived at upon appreciation

of the evidence are conclusive and not normally interfered with

by the revisional court by re-appreciating the evidence. In the

case on hand the Appellate Court verbatim copied the judgment of

the Trial Court without any independent application of mind and

assessing the evidence. The Appellate Court miserably failed to

exercise its appellate jurisdiction. The High Court is right in

observing that the Appellate Court merely reproduced the judgment

of the Trial Court without any independent application of mind.

8. But the question that arises for our consideration in the

present case is whether the Revisional Court is justified in re-

appreciating the evidence and substituting its own findings on

the ground that the Appellate Court did not consider the evidence

properly? It is settled law that the High Court cannot re-

4 appreciate the evidence and set aside concurrent findings of

facts by taking a different view of the evidence. It is always

open to the High Court to remit the matter if in its opinion the

courts below did not consider the material evidence on record.

In the instant case the High Court instead of remitting the

matter for fresh consideration by the Appellate Court on the

ground that the Appellate Court failed to consider the material

evidence on record had chosen to undertake that responsibility

upon itself which we find it difficult to sustain.

WILFULL DEFAULT :

9. We find that the First Appellate Court committed same

mistake even while considering the issue relating to wilful

default alleged to have been committed by the respondent. On

this issue also the Appellate Court merely re-produced verbatim

judgment of the Trial Court.

10. Considering all the facts and circumstances as noticed

above, we are constrained to hold that the order of the High

Court cannot be sustained and as such we set aside the same and

remit the matter to the First Appellate Court (Appellate Court of

the Civil Judge No. 2, Kamrup, Guwahati) for hearing the appeal

afresh for its disposal in accordance with law. It is needless

to observe that the Appellate Court shall re-hear the matter and

decide all the issues that arise for its consideration by

properly re-appreciating the evidence available on record. The

appeal shall be heard and disposed of within six months from

today.

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11. The appeal is, accordingly, allowed without any order as

to costs.

....................J. (B. SUDERSHAN REDDY)

....................J. (SURINDER SINGH NIJJAR)

New Delhi, July 5, 2010

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