ITEM NO.105 COURT NO.8 SECTION IV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 1388 OF 2003
RAM BABU AGARWAL Appellant (s)
VERSUS
JAY KISHAN DAS Respondent(s)
(With appln(s) for exemption from filing O.T.,permission to place
addl. documents on record,permission to file rejoinder
affidavit,permission to file additional documents and under section
13(6) of The Madhya Pradesh Accommodation Control Act, 1961 for
striking out defence in the appeal and with office report)
Date: 07/10/2009 This Appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE MARKANDEY KATJU
HON'BLE MR. JUSTICE ASOK KUMAR GANGULY
For Appellant(s) Mr. Sushil Kumar Jain, Adv.
Mr. Niraj Sharma,Adv.
Mr. Vikrant Singh Bais, Adv.
Ms. Eshita Barua, Adv.
For Respondent(s) Mr. Anup G.Choudhary, Sr. Adv.
Mr. Prashant Kr. Roy, Adv.
Mr. Ashwani Kumar,Adv.
UPON hearing counsel the Court made the following
O R D E R
The Appeal is allowed on the question of bona fide
need only to the extent indicated in the reportable signed
order, which is placed on the file. No costs.
(Parveen Kr. Chawla) ( Indu Satija)
Court Master Court Master
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1388 OF 2003
Ram Babu Agarwal ..Appellant
versus
Jay Kishan Das ..Respondent
O R D E R
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.
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 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 after the judgment of the High
Court and during the pendency of the special leave
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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, 1961 (for
short ‘the Act’) will apply and the defence of the tenant
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 constitutional provision. An appeal is a
creature of the statute and the conditions mentioned in
Section 13(6) of the Act will 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 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 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 a person
can start a new business even if he has no experience in
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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 sometimes they are successful in the new business also.
Hence, we are of the opinion that the High Court
should 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 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.
………………………J.
[MARKANDEY KATJU]
NEW DELHI; ………………………J.
OCTOBER 07, 2009. [ASOK KUMAR GANGULY]