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RAGAVENDRA K'UMAR A v.

F1RM PREM MACHINERY AND CO.

JANUARY 7, 2000

(V.N. KHARE AND S.N. PHU.KAN, JJ.] B

Rent Control & Eviction :

Madhya Pradesh Accommodation Control Act, 1961 : Section 12(1)(!)-Appellant/landlord filed a suit for eviction on the ground of C bonafide requirement-Stated in evidence that the owner haJ several other shops and houses but they were not vacant and also not suitable for his

purpos~.Plaint amended-Amendment not rebutted by the ReJpondent/tenant-Suit decreed--Trial Court held that burden of proving his bonafide need was on the Appellant/landlord- -First appeal dismissetf-High CouTt allowed second appea~Assumed that Appellant/landlord admitted of having other premises--On appeal, Held : Landlord is best Judge of his requirement-High CouTt erred in holding that lower appellate CouTt wrongly

put onus on respondent/tenant-Lower appellate CouTt had held that burden of proving that the landlord had many shops in the city, lay on respondent/tenant but the Court did so while appreciating evidence on record adduced by paTtieJ-Lower appellate CouTt decided appeal on preponderance of evidence, not on basis of burden of proof

The Appellant-landlord filed a suit for eviction under Section 12(1) (0 of the Madhya Pradesh Accommodation Control Act, 1961 against F the Respondent-tenant as he required the suit premises for opening a showroom of motorcycles for which he was appointed a sub-dealer. During pendency of the suit, father of the appellant-landlord died and the plaint was amended by adding a para to it stating that no building left by appellant's father was vacant or was in appellant's possession. l'ieither any additional written statement was filed nor any further evidence was ad- G duced, after the amendment, by either party. The trial court gave a finding that the appellant-landlord required the suit premises for his own business and no other suitable shop was available to him for the said purpose in the city. The first appellate Court dismissed the appeal preferred by the Respondent/tenant. On second Appeal, the High Court, setting aside the H 77

78 Sl:PRhMF COL:RT RFPORT~ [2000j l S.C.R.

A judgments and decrees of tbe courts below, observed that the courts below

had wrongly placed onus on the respondent for proving that alternative accommodation was not suitable for the appellant. It was also observed that in view of the admission of the appellant that he and his father possessed certain shops, no explanation had been given by the appellant B as to why the said alternative shops were not suitable for his purpose.

Hence the present appeal.

The appellant-landlord contended that in the second appeal the High Court erred in law by setting aside the concurrent finding of fact of the courts below by re-appreciating the evidence on record.

Allowing the appeal, this Court

HELD : 1.1. It is true that the appellant-landlord in his evidence stated that there were number of other shops and houses belonging to him but he made a categorical statement that the said houses and shops were D not vacant and that the suit premises was suitable for his business purpose. It is settled position of law that landlord is the best Judge of his requirement for residt, ntial or business purpose and he has got complete freedom in the matter. In the case in hand the appellant-landlord wanted eviction of the tenant from the suit premises for starting his business as E it was suitable and it cannot be faulted. [81-B-C]

Prativa Devi (Smt. I v. T. V. Krishnan, [1996] 5 SCC 353, relied on.

Kashibai w/o Lacl1iram and Another v. Panvatibai wio Lachiram and Other:., [ 1995] 6 SCC 213 and Ram Prasad Rajak v. i'VUl!d Kumar & Brus.

F & Anr., JT (1998) 5 SC 540, referred to.

1.3. It is true that the lower appellate Court was of the view that the burden of proving that the appellant-landlord had many shops in the city, lied with the Respondent-tenant but Court did so while appreciating the evidence on record adduced by the parties. The above view was expressed G by the appellate Court after holding that on preliminary documents and evidence produced before the courts below it was evident that the dis puled shop was required by the appellant-landlord for bonafide need. On going through the judgment of the lower appellate Court it is found that the appellate Court decided the appeal on preponderance of evidence and not H on the basis of burden of proof. The High Court, in the second appeal,

R. Kt.:MAR v. FIRM PREM MACHINERY [PHlJKA,'•t J.J 79

erred in law by setting aside concurrent findings of racts of the courts A below by re-appreciating the entire evidence. (81-H, 82-A-B, 83-A]

Dilbagrai Punjabi v. Sharad Chandra, AIR (1988) SC 1858 andlagdish Singh v. Natthu Singh, AIR (1992) SC 1604, distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3663 of B

1998.

From the Judgment and Order dated 14.5.98 of the Madhya Pradesh High Court in S.A. No. 55 of 1998.

A.K. Sanghi for the Appellant.

Satish Chandra, B.K. Sharma, D.K. Punj, Ms. Shafali Khanna, T.

Tendon and J.M. Khanna fur the Respondent.

The Judgment of the Court was delivered by :

PHU.KA,.~, J. This appeal at the instance of dcfondanHenant is directed against the judgm(; nt and decn:e dated 14.5.98 passed by the High Court of M.P. at Jabalpur in Second Appeal No. 55198 reversing the judgment and decn:e of two courts below passed in favour of the appellant.

The appellant herein shall be described as plaintiff-landlord and n::spondent as defendant-tenant hereinafter for the sake of convenience.

The plaintiff fikd a suit under Section 12(1)(f) of M.P Accommodation Control Act, 1961 fur eviction of the defendanttenant on the ground

of bona fide requirement as he required the suit premises fur opening a F showroom of lndoSuzuki motor-cycles and TVS-50 mopeds for which he was appoint..:d sub-dealt:r. The trial court came to the finding that the plaintifflandlord was in bona Jidt: need of the disputed premises fur doing his own busim:ss and fur this purpose nu other suitable shop was availablt: to him in thi.: city of Chattarpur. The !owc:r appellat.: court after consider- G ing the evidence on record uphdd the dbOVt: finding of the trial court and dismissed the appeal filed by the defendant-tenant.

The High Court in the second dppeal framed the following two questions which according tu the High Court wen; substantial yucstiuns of law H

SUPREME COL'RT REPORTS (2000j 1 S.C.R.

(i) 'Whether in view of the fact that the respondent admitted that there are number of plots, houses and shops in his possession, the lower appellate court could not have decreed the suit of the respondent under Section 12(1)(f) of M.P.

Accommodation Control Act, 1961?

(ii) Whether in view of the admission of the respondent the trial court wrongly placed onus on the appellant to prove that thi: alternative accommodation is suitable for the busini:ss of the respondi:nt?"

C The learned single Judge of the High Court was of the view that the Courts below had wrongly placed the onus on the deft:ndanttenant of proving that alternative accommodation was not suitable for the plaintifflandlord and that courts below had ignored the fact that plaintiff-landlord had admitted that he and his father were in possession of certain shops and had not stated why these alternative shops were not suitable for their D business or they were vacant. On these grounds the learned Single Judge set aside both the judgments and decrees of the courts below.

We have heard Mr. AK. Sanghi, learned counsel for the appellant and Mr. Salish Chandra, learned senior counsel for the respondent.

The learned counsel Mr. Sanghi for the appellant has urged that the High Court in the second appeal erred in law by setting aside thi: concurrent finding of fact of the courts below by re-appreciating the evidence on record. In this connection learned counsel has placed reliance on a decision of this Court.

In Kashibai w!o Lachiram and Another v. Parwatibai w/o Lachiram and Others, [ 1995) 6 SCC 213, this Court inter alia held that thert: is no jurisdiction to entertain the second appeal on the ground of .; rroneous finding of fact, based on appreciation of the relevant evidence.

The only question to be decided in the suit was whether plaintifflandlord wanted the suit premises for the bona fide requirement. The bona fide requirement of the landlord does not givi: rise to any substantial question of law and it has to be decided on the appreciation of evidence.

This view was also expressed by this Court in Ram Prasad Rajak v. Nand H Kumar & Bros. & Anr., JT (1998) 5 SC 540.

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R. KUMAR v. FIRM PREM MACHINERY[PHUKA.."1, J.] 81

The learned Single Judge of the High Court while formulating first A substantial question of law proceeded on the basis that the plaintiff. landlord admitted that there were number of plots, shops and houses in his possession. We have been taken through the judgments of the courts bdow and we do not find any such admission. It is true that the plaintiffland!ord in his evidt:nce stated that there were number of other shops and houses belonging to him but he made a categorical statement that his said houses and shops were not vacant and that suit premises is suitable for his business purpose. It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. (See: Prativa Devi (Smt.) v. T.V. Krishnan, [1996) 5 SCC 353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted.

After the death of the father of the plaintiff-landlord the plaint was amended and the following was added as para 6(a) :

''That the father of the plaintiff had expired in the month of February, 1992 and the buildings left by the father of the plaintiff were already occupied by tenants, and the owners of these buildings art: plaintiffs mother and other legal heirs of plaintiffs father Durga Prasad. No building having ownership of the plaintiffs father Durga Prasad is vacant or in possession of the plaintiff'.

No additional written statement was filed on behalf of the defendanttenant and no further evidence was adduced after the amendment by either parties.

The learned Single Judge of the High Court has found fault as the plaintiff-landlord did not give evidence after above amendment of the plaint. In our opinion it is not necessary as the above amendment was not rebutted by the defendant-tenant.

The learned Single Judge also erred in law in holding that lower appellate court wrongly placed onus on the defendant-tenant. It is true that the lower appellate court was of the view that the burden of proving that

the plaintiff-landlord has many shops in the city, lied with the defendanttenant but Court did so while appreciating the evidence on record adduced H

82 SUPREME COl:R"l RFPORTS j2000j l S.C.R.

A by the partks. The above view was expn:ssed by the appellate court after holding that on prdiminary documents and evidence produced before the courts below it was evident that the disputed shop was required by the plaintiff-landlord for bona fide need. On going through the judgment of the lower appdlalt: court we find the appellate court decided the appeal on B preponderance evidence not on the basis of burden of proof. We may state

here that trail court clearly recorded that the burdt:n was on the plaintiff landlord to prove that he was in bona fide need of the suit premises.

Without con, idering whether the two questions framt:d by the C learm:d Single Judge of the High Court in second appeal were , ubstantial

questions of law 01 not, we find that tht:se two questions wen: framed contrary to the judgments of the courts bdow. Mr. Salish Chandra, learned senior counsel whilt drawing our attention to the judgment of the learned Single Judge has urged that the plaintiff-landlord and his late father had number of shops, houses including the disputed shop but we find that there D is nothing on record to show that any of such shop premises was vacant and suitable for the purpose of proposed business.

Mr. Salish Chandra, learned senior counsel has drawn our attention E to the decision of this Court in Dilbagrai Punjabi v. Sharad Chandra, AIR

(1988) SC 1858 = (1988) 3 JT 308 in which this Court held that the High Court in the second appeal was fully justified in reversing the findings of the courts below. This Court took note of the fact that the High Court was right in pointing out that the courts bdow had seriously erred in not considering the t:ntire evidence on record including documents where there F was an admission. In other words this was a case of non-consideration of evidence on record but that is not so in the case in hand. The second decision of this Court on which reliance has been placed by Mr. Satish Chandra, learned senior counsel was infagdish Singh v. Natthu Singh, AIR

(1992) SC 1604. This Court held that the High Court in the second appeal G is not precluded from recording proper findings if the findings of the courts below were vitiated by non-consideration on relevant evidence or by essentially erroneous approach to the matter. In the case in hand nothing has been brought to our notice that the courts below did not consider relt:vant evidence on record or the approach to the matter was wrong. Therefore, H the above decisions are not applicable to the case in hand.

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R.KlJMAR v. HRM PREM MACHINERY[PHlJKAN, J.] 83

For the reasons stated above we are of the considered opinion that A the High Court in the second appeal erred in law by setting aside concurrent findings of facts of the courts below by re-appreciating the entire evidence on record.

In result appeal is allowed by setting aside the impugned judgment of the High Court and the judgments and decrees of the courts below arc B restored. Cost on the parties.

R.C.K Appeal allow.:d.