Smt. Mehrunnisa
& Ors Vs. Smt. Visham Kumari & ANR [1997] INSC 890 (2 December 1997)
A.S.
ANAND, K. VENKATASWAMI
ACT:
HEADNOTE:
THE
2ND DAY OF DECEMBER, 1997 Present:
Honb'ble
Dr.Justice A.S.Anand Hon'ble Mr.Justice K.Venkataswami D.D. Thakur, Sr. Adv. and
Vivek Gambhir, Adv. with him for the appellants Dr. Shankar Ghosh, Sr. Adv., S.S.Khanduja,
B.K. Satija, Y.P.Dhingra, Advs. with him for the Respondents.
The
following Judgment of the Court was delivered;
K. Venkataswami.
J.
This
appeal by special leave is preferred by the legal representatives of the
deceased tenant against whom an order of eviction from the suit premises was
passed by the High Court.
The
respondent-landlady became the owner of the suit premises under a registered
sale deed dated 31.3.1975. On 12.7.1976, the respondent issued a notice to the
tenant terminating the tenancy stating inter alia that the suit premises, a
non-residential one, was required for using it as an office for her husband, a practising
lawyer. It was also stated that the tenant has default in payment of rent and
has sub-let the premises without written consent of the landlady. However, no
action was taken pursuant to the notice dated 12.7.1976. The respondent issued
a second notice through lawyer on 9.7.1977 stating that the suit premises was
required for her cloth business which she intended to start. Even on the basis
of the second notice, no action was taken by the respondent-landlady. A third
notice was also issued by the respondent-landlady on 12.10.1979 repeating the
same allegations contained in the second notice dated 9.7.1977. This time, the
landlady filed a suit for eviction on the basis of the notice issued on
12.10.1979. The grounds for eviction as given in the plaint were that the
landlady required the premises for starting a cloth business; that the tenant
has defaulted in payment of rent for the period from 1.4.1979 to 30.11.1979 and
that the tenant has sub-let the premises unauthorisedly.
The
tenant resisted the suit for eviction denying the requirement of the landlady
for her new business. It was also denied by the tenant that there was default
the payment of rent. The allegation of sub-tenancy was also denied.
The
trial court on the basis of the pleadings framed live issues. The plaintiff
(respondent herein) examined herself and three other witnesses in support of
her pleadings. Likewise, the deceased defendant-tenant, apart from examining
himself, examined six other witnesses in support of his pleadings.
The
trial court in its detailed judgment found that the requirement of the landlady
for starting cloth business was bona fide and that she was not in possession of
any other vacant shop of her own for the said requirement: that the landlady
failed to establish the case of sub-letting and also the case of default in
payment of rent. In other words, out of three grounds put forward in support of
the suit for eviction. The trial court deceased the suit only on the ground of
bona fide requirement by the landlady for starting the cloth business. We are
therefore, not concerned with the other grounds for eviction.
Aggrieved
by the judgment of the trial court, the deceased tenant preferred an appeal to
the appellate court.
The
lower appellate court, after re-appreciating the pleadings and evidence, came
to a conclusion on the bona fide requirement of the landlady for starting a
cloth business. According to the lower appellate court, the landlady failed to
establish her case of the requirement of the suit premises for starting a cloth
business. The lower appellate court reversed the Judgment and decree of the
trial Court mainly on the ground that the landlady issued a first notice on
12.1.1976 giving out an entirely different ground for eviction, namely, that
she required the premises for the use of her husband as lawyer's office.
Subsequently, according to the first appellate court, in the light of the
judgment of the High Court that such a claim cannot be the basis for eviction
under Section 12(1)(f) of the Madhya Pradesh Accommodation Control Act. 1961
thereinafter called the `Act'). The landlady has changed her stand and put
forward an entirely new ground for eviction, namely, that the premises was
required for starting a cloth business.
According
to the lower appellate court, the change in the stand of the landlady exposed
her intention to evict the tenant for some other motive. The lower appellate
court dismissed the suit for eviction by allowing the appeal preferred by the
tenant on the ground that the landlady failed to established her case viz. that
required the premises bona fide for starting a cloth business.
Aggrieved
by the reversing judgment and decree of the lower appellate court, the
respondent-landlady preferred a Second Appeal under Section 100, CPC, before
the Madhya Pradesh High Court. The High Court after going into the judgments of
the courts below after going into the judgments of the courts below found that
the lower appellate court, though entitled to re-appreciate the evidence and
come to a different conclusion failed to read the whole evidence and all the
documents exhibited in the trial court before reversing the finding of the
trial court on the issue of bona fide requirement of the landlady for starting
a cloth business. According to the High Court, the lower appellate court failed
to appreciate the notices issued on 9.7.1977 and 12.10.1979 taking a consistent
stand regarding the bona fide requirement for starting a cloth business. The
High Court has taken note of a number of judgments to the effect that the
notice issued and the circumstances which prevailed just before the institution
of the suit are relevant for coming to conclusion regarding the bona fide
requirement of the landlady. By giving undue importance to the first notice and
ignoring the subsequent notices. according the High Court, the conclusion
reached by the lower appellate court is vitiated. On that ground and also
accepting the appreciation of evidence by the trial court on the issue of bona
fide requirement of the landlady, the High Court allowed the Second Appeal and
decreed the suit for eviction.
It is
under these circumstances, the present appeal by special leave has been
preferred by the legal representative of the tenant who died pending the
proceedings.
Mr. D.D.Thakur,
learned Senior Counsel for the appellants, strenuously argued contending that
the High Court exceeded its jurisdiction under Section 100, CPC, by going into
the evidence and reversing the conclusion of the lower appellate court on a
question of fact. On that ground, according to the learned Senior Counsel, the judgment
of the High Court is liable to be set aside. He also submitted that the First
Appellate Court was justified in commenting upon the ground for eviction as
given in the first notice and the subsequent change in the stand taken by the
landlady. Another words, the learned counsel justified the conclusion reached
by the lower appellate court reversing the conclusion of the trial court. Mr. Thakur
in support of his contention placed reliance on two judgments of this Court in Sarvate
T.B. vs. Nemichand (1966 (MPLJ) 26 (SCC) and Mattulal vs. Radhe Lal ( 1974 (2)
SCC 365).
Dr. Shankar
Ghosh learned Senior Counsel appearing for the respondent-landlady contending
contrary submitted that the High Curt was fully justified in reversing the
finding of the lower appellate court as the lower appellate court failed to
read the entire evidence and all the documents before coming to a conclusion
contrary to the one reached by the trial court. Learned Senior Counsel further
submitted that this Court has consistently taken the view that if the first
appellate court while reversing the finding of the trial court failed to take
note of all the documents exhibited before the trial court and failed to read
the entire evidence, the High Court can interfere with such finding while
exercising jurisdiction under Section 100, CPC. He also laid stress on the fact
that the lower appellate court ought not to have looked into the contents of
first notice issued by the landlady when the relevant notice for the purpose
was the last one issued just before the filing of the suit. The landlady having
not taken any steps pursuant to first and second notices, the contents in those
notices ought to have been ignored. Learned Senior Counsel submitted that the
High Court was right observing that the circumstances prevailing before the
filing of the suit are relevant and not be circumstances that prevailed long
earlier to the filing of the suit.
We
have considered the rival submission and carefully gone through the judgments
of all the three courts. It is true that this Court in Nemi Chand's case
(Supra) has, in unmistakable terms, held while deciding a case under the Madhya
Pradesh Accommodation Control Act 23 of 1995 that the finding of the District
Court based on appreciation of evidence was binding upon the High Court and the
High Court had no power to reverse that finding. This Court further observed as
follows:- "The criticism made by the High Court that the District Court's
finding was vitiated "due to very imperfect understanding of the meaning
of the expression `genuinely requires' occurring in clauses (g) and (h) of
Section 4 of the Act," and that the District Court and "arrived at a
finding which is totally unrelated to the legal connotation of the phrase
`genuinely requires' and almost borders on perversity", does not appear to
be merited. In our judgment, the District Court committed no error in the
examination of the evidence in the light of the Full Bench judgment in Damodar's
case." Likewise in Mattulal's case (supra), this court after referring to Nemi
Chand case held as follows:- " Now it is obvious that the issues whether
the respondent required the Lohia Bazar shop for the purpose of starting a new
business as a dealer in iron and steel materials and if so, whether his
requirement was bona fide were both questions of fact. Their determination did
not involve the application of legal principles to the facts established in the
evidence. The findings of the Additional District Judge on these issues were no
doubt inferences from other basic facts, but that did not alter the character
of these findings and they remained finding of fat. There is, therefore, no
doubt that the conclusion of the Additional District Judge that the respondent
did not bona fide require the Lohia Bazar shop for the purpose of starting
business as a dealer in iron and steel materials represented a finding of fact
and it could not be interfered with by the High Court in second appeal unless
it was shown that in reaching it a mistake of law was committed by the Additional
District Judge or it was based on no evidence or was such as no reasonable man
could reach. This was precisely the ground on which a Bench of four Judges of
this Court in Sarvate T.B. vs. Nemichand set aside the judgment of the Madhya
Pradesh High Court which had interfered with the decree passed by the District
Court dismissing a suit for eviction filed by the landlord against the tenant.
The District Court, sitting as a court of first appeal, had taken the view, on
an appreciation of the evidence, that the requirement of the premises by the
landlord for his residence was not genuine, but in second appeal the Madhya
Pradesh High Court reversed this finding and passed a decree for eviction
against the tenant. This Court set aside the judgment of the Madhya Pradesh
High Court on the ground that the finding reached by the District Court on an
appreciation of the evidence that the landlord did not genuinely require the
premises for his residence was a finding of fact and the Madhya Pradesh High
Court had no jurisdiction in second appeal to disturb this finding".
In the
case on hand unfortunately the lower appellate court before reversing the
finding of the trial court on the issue of bona fide requirement of the
landlady for starting a cloth business failed to read the entire evidence and
take into consideration all the documents placed before the trial court.
Therefore, it was rightly contended by Dr. Ghosh, learned Senior Counsel for
the respondent, that the High Court was justified in interfering with the finding
of the first appellate court. A reading of the judgment of the lower appellate
court leaves no doubt that it has looked into the contents of the first notice whereunder
the landlady has stated that she required the premises for her husband's office
and ignored the notice issued just before the filing of the suit. The lower
appellate court has also failed to give due importance to the fact that the
landlady has not taken any steps to file suit for eviction pursuant to the
notice issued on two earlier occasion and the ground stated in the notice
preceding the suit are relevant for the purpose of deciding the issue.
The
judgments cited by the learned Senior Counsel for the respondent on the scope
of Section 100.CPC, are apposite in the circumstance of the this case. In J.B.
Sharma vs State of Madhya Pradesh & Another (1988 (Supp.) SCC 451), this
Court while considering the scope of Section 100, CPC, observed thus:- "
It will thus be seen that the first appellate court while recording the finding
acted on an assumption not supported by any evidence and further failed to
consider the entire document on the basis of which the finding was recorded.
The High Court was, therefore, justified under Section 100 of the Code of Civil
Procedure to set aside the finding." In Dilbagrai Punjabi vs. Sharad
Chandra (1988 (Supp.) SCC 710) again this Court while considering the scope
Section 100, CPC, held as follows:- "It is true that the High Court while
hearing the appeal under Section 100 of the Code of Civil Procedure has no
jurisdiction to reappraise the evidence and reverse the conclusion reached by
the first appellate court, but at the same time its power to interfere with the
finding cannot be denied if interfere with the finding cannot be denied if when
the lower appellate court decides an when the lower appellate court decides an
issue of fact a substantial question of law arises. The Court is under a duty
to examine the entire relevant evidence on record and if it refuses to consider
important evidence having direct bearing on the disputed issue and the error
which arises is of a magnitude that it gives birth to a substantial question of
law, the High Court is fully authorised to set aside the finding." To the
same effect, another judgment of this Court in Sundra Naicka Vadiyar (Dead) by IRs.
& Anr. vs. Ramaswami Ayyar (Dead) by His LRs. (1995 Supp. (4) SCC 534),
this Court observed as follows:- "A Perusal of the impugned judgment of
the High Court shows that there were good reasons for treating the finding on
the question of possession recorded by the first two courts to be vitiated.
Apart from the reasons given by the High Court, it appears to us that ignoring
some of the documents which were vital for deciding the question of possession
also vitiated the finding on the question of possession recorded by the trial
court as well as the first appellate court." Recently also in Kochukakkada
Aboobacker (Dead) by LRs. and Other vs. Attah Kasim and Other (1996 (7) SCC
389), this Court again observed on the scope of Section 100, CPC, as follows:-
"The appellate court had not considered these documents in a proper
perspective and the effect of those documents on the rights of the parties.
Accordingly, the learned Judge reluctantly had reconsidered the evidence and,
in our view, quite rightly since it is not a mere appreciation of evidence but
drawing inferences from the admitted documents, Since proper construction of
the documents and inferences have not legally been drawn by the appellate
court, the High Court gone in detail and recorded the finding".
In the
light of the pronouncements of this Court and for the reasons given by the High
Court. namely, that the lower appellate court has failed to take into account
document necessary for giving a finding on the issue of bona fide requirement,
we are of the view that we cannot find fault with the High Court in interfering
with the reversing judgment of the lower appellate court. Accordingly, the
appeal fails and it is dismissed. However, there will be no order as to costs.
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