Kumar Vs. Yusuf Ali  INSC 420 (26 May 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4244 OF
2006 Dinesh Kumar ...Appellant Versus Yusuf Ali ...Respondent
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
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.
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 2 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.
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.
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.
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.
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.
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.
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 4 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.
the judgment and order of the High Court does not warrant any interference. The
appeal is liable to be dismissed.
have considered the rival submissions of learned counsel for the parties and
perused the record.
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
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"
can be decided only by taking all relevant circumstances into consideration so
that the protection afforded to tenant is not rendered illusory or whittled
tenant cannot be evicted on a false plea of requirement or "feigned
requirement". (See also Rahabhar Productions Pvt. 2507).
& 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
2896, this Court held that while determining the case of eviction of the tenant,
an approach either too liberal or too 6 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
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 7
obligation on the Court of Law to further the clear intendment of the
Legislature and not to frustrate it by ignoring the same.
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.
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:- 8 "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."
Salmond, on Jurisprudence, 12th Edn. page 69, cited Vikhe Patil & ors., AIR
1994 SC 678).
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.
& 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 9
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.
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.
& 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.
held that it is permissible to interfere even on question of fact but it has to
be done only in exceptional circumstances.
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."
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 11 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.
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 :
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."
Similar view has been reiterated by this Court in AIR 2008 SC 2033.
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.
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.
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 13 Kay Iron Works Pvt. Ltd., AIR 2000 SC 1261).
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
if the High Court comes to the conclusion that the evidence on record 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.
instant case is required to be examined in the light of the aforesaid settled
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.
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 16 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.
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
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 17 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 landlord that any attempt
had ever been made by him 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
18 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.
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.
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, partial eviction of the appellant could serve the purpose of both the
in order to meet the ends of justice the appeal is allowed partly. The
landlord/respondent shall recover 19 possession of half of the area of the
premises dividing the same either on the side of "Bohara Masjid" or
on the other side.
stands disposed of accordingly. No costs.
.........................................J. (Dr. B.S. CHAUHAN)