Ushabai
& Ors Vs. M/S.Balkrishna Biharilal & Ors [2006] Insc 87 (23 February 2006)
A.R.Lakshmanan
& A.K. Mathur
[Arising
out of S.L.P.(c) No.11446 of 2003] A.K. MATHUR, J.
Leave
granted.
This
appeal is directed against an order passed by the learned Single Judge of the
Madhya Pradesh High Court in Second Appeal No.382 of 1999 whereby learned
Single Judge allowed the appeal of the defendants and set aside the decree of
eviction granted by the first appellate court . Hence this appeal.
The
original owner of the property which is situated in Khargaon Nagar was one
Madhav Rao. He let out the suit premises to one Balakrishna on a monthly rent
of Rs.50/- on 1.12.1950. Later on a rent note was executed inter se parties on
24.11.1955. On 3.3.1964 Madhav Rao felt the need of money and therefore, he
took a sum of Rs.15,000/- from Balakrishna and executed a mortgage deed on
3.3.1964 in favour of Balakrishna's two sons namely Vijaykrishna and Shyam
Sunder mortgaging the suit premises.
Madhav
Rao then effected a partition of his properties including the present suit
house which fell in the share of his son, Mahesh Parsai. Mahesh became the
owner of the suit house. On his death, the present plaintiffs who are the widow
and sons respectively succeeded to the suit premises and became owners. The
plaintiffs claiming to be the owners and landlords of the suit premises filed a
suit out of which this present appeal arises against two sons of Balakrishna
for their eviction from the suit house. The plaintiffs got the mortgage deed
redeemed in their favour on 8.6.1982 after tendering the mortgage money.
Thereafter, the plaintiffs called upon the defendants to vacate the suit
premises as there was bona fide need of the plaintiffs i.e. for one of the
sons, namely Pramod for doing business. It was also pointed out that the
defendants had created sub-tenancy.
Thus,
the plaintiffs sought eviction of the defendants from the suit premises on two
grounds i.e. bona fide need of Pramod for doing business under Section 12(1)(f)
of the Madhya Pradesh Accommodation Control Act (hereinafter to be referred to
as "the Act") and sub-letting of the suit premises to one firm
falling under section 12(1)(b) of the Act.
The
defendants contested the averments of the plaintiffs and resisted the suit for
eviction. The defendants averred that the suit was not maintainable because
there did not exist any relationship of landlord and tenant between the parties
after execution of mortgage deed, Ext. P-1. Redemption of the mortgage deed was
also denied by the defendants.
The
trial court held that the mortgage has not been redeemed, no case for bona fide
need as contemplated under Section 12 (1) (f) of the Act was made out and that
no case for sub- letting was also made out. However, the trial court decreed
mesne profit for a sum of Rs.300/- per month against the defendants.
Aggrieved
against the said decree, the plaintiffs as well as the defendants filed appeals
before the first appellate court. The plaintiffs in their appeal contended that
they were entitled to seek eviction of the defendants on both the grounds
whereas the defendants contended that no decree for mesne profit at the rate of
Rs.300/- per month could be granted and the suit should have been dismissed in
its entirety.
The
appellate court allowed both the appeals. So far as the defendants' appeal was
concerned, the appellate court set aside the decree for mesne profit granting
Rs.300/- per month and so far as the plaintiffs' appeal was concerned, it was
partly allowed resulting in eviction on the ground falling under Section
12(1)(f) of the Act i.e. bona fide need. It was found that the plaintiffs
required the suit accommodation for bona fide need of their son, Pramod. It was
also held that since the plaintiffs have redeemed the mortgage by paying the
mortgage money to the defendants, earlier relationship of landlord and tenant
came into existence enabling the plaintiffs to seek eviction on the ground of
bona fide necessity. Against this order, second appeal came up before learned
Single Judge of the High Court in which two substantial questions of law were
initially framed which are as follows:
-
"Whether in
the facts and circumstances of the case the findings of the first appellate
court on the point of genuine need of plaintiff/ respondents, is perverse, as
arrived at in total disregard of objective facts required to prove the alleged
need ?
-
Whether in the
facts and circumstances of the case the courts below erred in not considering
the entire joint family property for availability of alternative accommodation
for starting the business of plaintiff's major son Pramod Kumar?" But the
learned Single Judge realized that more substantial questions of law arise in
the matter, therefore, the following substantial questions of law were framed
later on.
-
"Whether
lower appellate court was justified in holding that consequent upon the payment
of mortgage money by Ushabai redeeming the mortgage (Ex.P.-1), the tenancy
between the parties revived ?
-
Whether, finding
of lower appellate court that the mortgage stood redeemed is sustainable with
reference to facts ?
-
Whether, in the
facts of the case, it could be gathered that it was a case of surrender of
tenancy rights on execution of mortgage ?
-
Whether,
plaintiffs were entitled to file a suit for eviction on the ground covered
under Section 12(1) of the Act or their remedy was to claim possession on the
strength of their title ?
-
In view of the
finding that mortgage stood redeemed, whether decree for eviction can be upheld
on the basis of plaintiff's title, as mortgagors and whether there is a
material to sustain such decree ?
-
Can a decree for
eviction passed under the provisions of the M.P. Accommodation Control Act be
confirmed on the basis of title if there is any material to sustain it ?"
The learned single Judge after hearing both the parties set aside the order of
Ist Additional District Judge, Khargaon on the ground that there was complete
surrender of tenancy in favour of defendant because of mortgage. Hence the
present appeal.
We
have heard learned counsel for the parties and perused the records. So far as
the question with regard to mortgage is concerned, we are of the opinion that
the mortgage is discharged after the entire payment has been made by the
plaintiffs to the defendants and in view of the fact that the mortgaged money
has been paid to the defendants, thereafter the only question that remained to
be decided by learned Single Judge was whether the need of the plaintiffs was
bona fide or not. Learned Single Judge of the High Court has unnecessarily
mixed up the question of eviction with the mortgage, the mortgage deed; Ext.P-1
was redeemed after full consideration having been paid therefore, there was no
necessity to go into the question whether mortgage was redeemed or not. After
going through the finding of the first appellate court we are satisfied that
the mortgage amount has been received by the defendants and this fact was
admitted by Shyam Sundar that mortgage amount has been received. In such a
situation, if no endorsement has been made on Ext.P-1, that would not make any
difference. Once Shyam Sundar, one of the defendants has admitted receipt of
the money then simply because of non-endorsement on Ext.P-1 would not mean that
the amount in question has not been paid and the mortgage has not been
redeemed. Once, mortgage has been redeemed, then the plaintiffs became full
owner of the suit premises as per the partition and therefore, they are
entitled to maintain the suit on the ground of bona fide necessity. But the
question of bona fide necessity was not considered by learned Single Judge.
Learned Single Judge has interpreted Ext.P-1 to be subsisting mortgage. This,
in our opinion, is not the correct approach. It was also admitted by the
defendants that they were inducted as tenants in the suit premises and the suit
premises belonged to one Madhav Rao who has given it to the plaintiffs.
Therefore, the plaintiffs are entitled to maintain their suit for eviction on
the grounds of bona fide need and sub-letting. However, the question of
sub-letting has failed. But so far as the question of bona fide need of the
plaintiffs is concerned, it should be examined by the learned Single Judge of
the High Court and finding be recorded whether the eviction sought by the
plaintiffs on the ground of bona fide necessity has been correctly approached
by the first appellate court or not. This question has not been examined by
learned Single Judge of the High Court whether the bona fide need of the
plaintiffs has been proved or not. Let this issue be examined by learned Single
Judge of the High Court whether bona fide need has been established by the
plaintiffs or not. Therefore, we allow this appeal, set aside the order of
learned Single Judge of the High Court of Madhya Pradesh passed in Second
Appeal No.382 of 1999 on 10.4.3003 and remit the matter back to the High Court
to consider the issue whether the Court below has correctly approached the bona
fide need of the plaintiffs or not. So far as framing of substantial questions
of law by the High Court is concerned, it is always open if learned Single
Judge considers that some more substantial questions of law arise in the
matter, he can frame the same. This Court in the reported in (2004) 5 SCC 762
has taken the view that by virtue of proviso to Section 100(5) the High Court
can frame substantial questions of law if they arise in the matter for the
reasons to be recorded. Hence we allow the appeal and set aside the order of
the High Court and remit the matter to the High Court to decide the issue of
plaintiffs' bona fide necessity. Since this is an old matter, we request that
the High Court may expedite the hearing of the second appeal. No costs.
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