PETITIONER:
DILBAGRAI PUNJABI
Vs.
RESPONDENT:
SHARAD CHANDRA
DATE OF JUDGMENT08/08/1988
BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
PATHAK, R.S. (CJ)
CITATION:
1988 AIR 1858 1988 SCR Supl. (2) 276
1988 SCC Supl. 710 JT 1988 (3) 308
1988 SCALE (2)523
ACT:
Civil Procedure Code. Section 100-Appeal-Subordinate
courts refuse to consider evidence having direct hearing on
disputed issue Error arising gives birth to a substantial
question of law-Whether High Court has jurisdiction to set
aside finding.
%
Madhya Pradesh Accommodation Control Act, 1961, Section
12(1) (f)-Suit for eviction of tenant for personal
necessity-Essential for plaintiff to prove ownership of
property-Partition deed by which ownership claimed not
produced-Effect of-Court under duty to examine other
relevant evidence on record.
HEADNOTE:
The respondent-plaintiff filed a suit under s. l2(l)(f)
of the Madhya Pradesh Accommodation Control Act, 196l, for
eviction of the appellant-tenant, on the ground of personal
necessity. The trial court rejected the plaintiffs claim
that he was the owner of the house in question.
On appeal, the Additional District.judge confirmed the
finding of the trial court on the ground that the plaintiff
did not produce the deed of partition, alleged to have been
executed by the parties and, under which the house in
question was said to have been allotted to him. In second
appeal, the High Court reversed the finding and decreed the
suit.
In the appeal to this Court, on behalf of the tenant it
was contended that it was essential for the plaintiff-
respondent to establish that he was the owner of the
premises, and that the concurrent finding of fact recorded
by first two courts was binding on the High Court under s.
100 of the Code of Civil Procedure and its reversal was
illegal.
Dismissing the appeal,
HELD: 1.1 The High Court's power to interfere with the
finding of fact reached by the first appellate court cannot
be denied if, when the lower appellate court decides an
issue of fact, a substantial question of law arises, even
PG NO 276
PG NO 277
though the High Court, while hearing the appeal under s. 100
of the Code of Civil Procedure, has no jurisdiction to re-
appraise the evidence and reverse the conclusion reached by
the first appellate court.[280C]
The court is under a duty to examine the entire relevant
evidence on record and if it refuses to consider important
evidence having direct B 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. [280D]
1.2 A perusal of the language of the clause (f) of s.
12(l) of the Madhya Pradesh Accommodation Control Act, 1961,
and comparison there of with that in the other clauses
clearly indicates that it is essential for the plaintiff who
claims that he requires the shop personally for starting a
business, to establish that he is the owner of the premises.
[278G-H]
In the instant case, though the partition deed under
which the D plaintiff claims exclusive title to the
property was not produced in court, the first appellate
court was under a duty to consider all the relevant evidence
led by the parties along with the circumstances. The Civil
Judge, who tried the suit as well as the Additional District
Judge, confirming the decision of the trial court, had
seriously erred in not considering the entire evidence on
record including the reply to the notice sent by the
plaintiff-respondent, wherein the tenant-appellant has
accepted the plaintiff's title and counter-foil receipts
signed by the appellant in which the plaintiff had been
described as the owner of the property. In the
circumstances, the High Court was fully justified in
reversing the finding of the courts below. [279E, F-G, 280A]
JUDGMENT:
CIVlL APPELLATE JURlSDlCTlON: Civil Appeal No. 3387 of
1981
From the Judgment and Order dated 20.8.1981 of the
Madhya Pradesh High Court in Second Appeal No. 33 of 1978.
S.N. Kacker, Sanjay Sareen and S.K. Gambhir for the
Appellant.
S.K. Jain for the Respondent.
The Judgment of the Court was delivered by
PG NO 278
SHARMA,J. The appellant is in possession of a shop in a
town in Madhya Pradesh as a tenant under the respondent who
filed a suit out of which the present appeal arises for his
eviction on the ground of personal necessity. The suit was
dismissed by the trial court and the first appellate court.
The High Court in second appeal has reversed the decision
and passed a decree.
2. The case is governed by the Madhya Pradesh
Accommodation Control Act, 1961 (hereinafter referred to as
the Act) and s. 12(1)(f) deals with the ground of landlord’s
bona fide necessity with reference to buildings let out for
non-residential purposes, in the following words:
“12. Restriction on eviction of tenants-(l)
Notwithstanding anything to the contrary contained in any
other law or contract, no suit shall be filed in any Civil
Court against a tenant for his eviction from any
accommodation except on one or more of the following grounds
only, namely :
(a) —————————————–
—————————————–
(f) that the accommodation let for non-residential
purposes is required bona fide by the landlord for the
purpose of continuing or starting his business or that of
any of his major sons or unmarried daughters if he is the
owner thereof or for any person for whose benefit the
accommodation is held and that the land- lord or such person
has no other reasonably suitable non-residential
accommodation of his own in his occupation in the city or
town concerned ;
(g) …………………………………..
…………………………………..
3. The plaintiff claims that he requires the shop
personally for starting a business and it is rightly
contended by Mr. Kacker, learned counsel appearing for the
appellant, that it is essential for him to establish that he
is the owner of the premises. A perusal of the language of
the clause (f) and a comparison thereof with that in the
other clauses clearly leads to this conclusion. The issue in
the case is whether the plaintiff, respondent before us, has
been able to establish this condition.
PG NO 279
4. The defendant has been admittedly paying the rent to
the plaintiff who, therefore, is included in the expression
‘landlord’ as defined in the Act as a person receiving or
entitled to receive the rent whether on his own account or
on account of any other person. In the register of the
Municipal Corporation the property stands in the name of the
plaintiff’s brother Hukum Chand Jain. On this ground the
trial court rejected the plaintiff’s case that the shop
belongs to him. On appeal the Additional District Judge,
Gwalior confirmed the finding mainly on the ground that the
plaintiff did not produce the deed of partition which is
alleged to have been executed by the parties and under which
the house was claimed by the plaintiff to have been allotted
to him. The Court also held that since the plaintiff failed
to plead his ownership and further neglected to get his
plaint amended after his title was denied in the written
statement, he was not entitled to rely on any evidence in
support of his title. On the plaintiff filing a second
appeal, the Madhya Pradesh High Court reversed the finding
and decreed the suit.
5. Mr. Kacker strongly urged that the concurrent finding
of fact recorded by the first two courts was binding on the
High Court under s. 100 of the Code of Civil Procedure and
its reversal is illegal. We have gone through all the three
judgments and some of the documents placed before us by the
learned counsel for the parties and we find that the High
Court was fully justified in reversing the finding. The
first appellate court was not correct in assuming that the
plaintiff had failed to assert in the plaint his ownership
of the disputed shop. The necessary pleading is to be found
in paragraph 1 of the plaint, which of course was denied in
the written statement and the parties led their evidence on
this question at the trial. It is true that the partition
deed under which the plaintiff claims exclusive title to the
property was not produced in court, but the first appellate
court was under a duty to consider all the relevant evidence
led by the parties along with the circumstances.
Unfortunately neither the Civil Judge who tried the suit nor
the Additional District Judge confirming the decision of the
trial court adverted to important items of relevant evidence
which were considered and relied upon by the High Court. The
plaintiff, before filing the suit, sent a notice through his
counsel, to the appellant in which it was stated that the
shop in question belongs to him. In his reply sent through
an advocate the appellant, while denying the other
statements in the notice, accepted the plaintiff’s title in
the following words :
“That it is admitted that my client is occupying the
shop situated at Dal Bazar belonging to your client. . . . ”
PG NO 280
The plaintiff also produced counter foil receipts signed
by the tenant-appellant in which the plaintiff was described
as “the owner of property”. It was not a case of an isolated
single receipt-quite a number of such documents were
produced in the trial court. The High Court was right in
pointing out that the courts below had seriously erred in
not considering the entire evidence on the record including
the aforesaid documents. It is true that the High Court
while hearing the appeal under s. 100 of the Code of Civil
Procedure has no jurisdiction to re-appraise 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 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. This is the
situation in the present case. We, therefore, do not
discover any defect in the judgment of the High Court, and
the appeal is accordingly dismissed with costs.
N.P.V. Appeal dismissed.