[2009] 14 S.C.R. 1148

RAM BABU AGARWAL v.

JAY KISHAN DAS (Civil Appeal No. 1388 of 2003)

OCTOBER 7, 2009

[MARKANDEY KATJU AND ASOK KUMAR

GANG UL Y, JJ.]

Madhya Pradesh Accommodation Control Act, 1961:

Suit for eviction of tenant - On grounds of default in payment of rent and bonafide need of landlord - Held: High

Court having recorded a finding of fact that entire rent had been deposited by tenant in compliance of its order in revision

0 petition , the said finding cannot be interfered with - However, as regards bona fide need of landlord, High Court's order rejecting landlords plea on the ground that his son had no experience of the business proposed to be started in the premises, cannot be sustained - A person can start a new business even if he has no experience therein - High Court E should have gone deeper into the question of bona fide need and not rejected it only on the ground that the son of the landlord has no experience in foot wear business - Judgments of the High Court and trial court on the question of bona fide need are set aside and matter remitted to trial F court only to decide the issue of bona fide need afresh.

s. 13(6) - Suit for eviction for default in payment of rent - High Court rejecting the plea since tenant had deposited rent pending revision petition before High Court - Plea that suit G should be decreed for default committed by tenant after the judgment of High Court and during pendency of special leave petition/appeal under Article 136 of Constitution before Supreme Court - Held: Provisions of s. 13(6) will apply only to the statutory appeals under the Act and not to the H 1148

"fl constitutional remedy under Article 136 of the Constitution - A A statutory provision cannot control a constitutional provision

- An appeal is a creature of the statute and the conditions mentioned in s. 13(6) of the Act will apply to the statutory appeal and not to the constitutional remedy - Constitution of India, 1950 - Article 136.

CIVIL APP ELLA TE JURISDICTION : Civil Appeal No.

>-- 1388 of 2003.

From the Judgment & Order dated 23.8.2002 of the High Court of Madhya Pradesh, Bench at Gwalior in First Appeal C' No. 224 of 1997.

Sushil Kumar Jain, Niraj Sharma, Vikrant Singh Sais, Eshita Barua for the Appellant.

Anup G. Choudhary, Prashant Kr. Roy, Ashwani Kumar for D

the Respondent. 1

The following Order of the Court was delivered

ORDER E

Heard learned counsel for the parties.

• This Appeal has been filed against the impugned judgment of the High Court of Madhya Pradesh dated 23.8.2002 passed in First appeal No. 224 of 1997.

The appellant is the landlord of the premises in question and the respondent is a tenant therein. The appellant filed a suit for eviction against the tenant on two grounds (i) default in payment of rent; (ii) bonafide need.

i:- As regards the first point, the High Court has recorded a finding of fact that the entire rent has been deposited by the tenant in compliance with the order of the High Court passed in a revision petition and hence we cannot interfere with the H

1150 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A finding of the High Court on that point. ~

Shri S.K.Jain, learned counsel for the appellant submitted that even if the tenant has paid the rent up to the proceedings in the High Court, if he has committed default in payment of rent

B after the judgment of the High Court and during the pendency of the special leave petition/appeal under Article 136 of the Constitution of India before this Court, the provisions of Section 13(6) of the Madhya Pradesh Accommodation Control Act, --4 I 1961 (for short 'the Act') will apply and the defence of the tenant c will have to be struck off. We do not agree. In our opinion, the provisions of section 13(6) of the Act will apply only to the statutory appeals under the Act and not to the constitutional remedy under Article 136 of the Constitution.

It is well settled that a statutory provision cannot control a D constitutional provision. An appeal is a creature of the statute and the conditions mentioned in Section 13(6) of the Act will I

I apply to the statutory appeal and not to the constitutional remedy. That is because a constitutional provision is on a higher pedestal as compared to a statutory provision. A statute E cannot control the constitutional provisions. Hence, we reject the first submission of Shri S.K.Jain.

However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for

F eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that G a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and H sometimes they are successful in the new business also.

Hence, we are of the opinion that the High Court should A have gone deeper into the question of bona fide need and not rejected it only on the ground that Giriraj has no experience in foot wear business.

For the reasons given above, we set aside the impugned B judgments of the High Court and the trial Court on the question of bona fide need and remand the matter to the trial Court only to decide the issue of bona fide need afresh. Parties may lead fresh evidence on their pleadings and the trial Court shall decide the matter expeditiously thereafter.

The Appeal is allowed on the question of bona fide need only to the extent indicated above. No costs.

R.P.

Appeal allowed.