Dugar & Ors. Vs. Bridhichand Pannalal & Ors.  INSC 439 (5 July
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION 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
SUDERSHAN REDDY, J.
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.
The premises in question is a commercial one. There is no dispute
of landlord and tenant relationship between the parties.
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.
The High Court upon re-appreciation of evidence reversed the
findings of the courts below.
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
Requirement of the Premises:
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.
however, suggested that many other premises were under the occupation of the
tenants which suggestion was accepted by PW-1.
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.
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.
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.
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.
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.
The appeal is, accordingly, allowed without any order as to costs.
....................J. (B. SUDERSHAN REDDY)