REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2009
(Arising out of SLP (C) No. 1989 of 2007)
Mohd. Ismail ...Appellant
VERSUS
Dinkar Vinayakrao Dorlikar ...Respondent
JUDGMENT
TARUN CHATTERJEE,J.
1. Leave granted.
2. This appeal is directed against the Judgment and Order
dated 28th of September, 2006 passed by a learned
Single Judge of the High Court of Judicature of Bombay
at Nagpur Bench in W.P. (c) 5075 of 2005, by which the
High Court had dismissed the writ petition and affirmed
the order of the Additional Collector, Nagpur dated 22 nd of
July, 2005, which was filed against the order of the Rent
Controller, Nagpur in Revenue Case No. 264/A-71(2)/92-
93 dated 12th of November, 1999 thereby allowing the
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application of the respondent for grant of permission to
issue quit notice under Clause 13(3)(vi) of the Rent
Control Order, 1949.
3. The case made out by the respondents in his eviction
petition may be summarized as follows :-
The appellant is a tenant in respect of a Shop Room
measuring about 10′ x 26′ (hereinafter referred to as “the shop
in question”) under the respondent for the last more than 20
years at a monthly rental of Rs.600/- payable at the end of each
English Calendar month. In the application for eviction, the
respondent had alleged that since he was jobless and had to
maintain a family of ten members and had no source of income,
he wanted to start a `kirana business’ in the shop in question, in
which business the respondent had sufficient experience and
funds to start the same. It was further alleged that he and his
three sons required two shops for his bonafide need.
Accordingly, the appellant was directed to vacate the shop in
question and as he had failed to deliver possession to the
respondent, the eviction proceeding was started against the
appellant on the ground of bonafide requirement.
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4. The tenant/appellant appeared before the Rent Controller,
Nagpur and contested the eviction proceeding by filing a written
statement, in which he had denied the material allegations
made in the application for eviction. It was specifically denied
by the appellant in the written statement that the respondent
bonafide required the shop in question as the respondent was
already in possession of sufficient accommodation.
Accordingly, the appellant sought for dismissal of the eviction
petition.
5. Parties adduced evidence in support of their respective
claims and after taking oral and documentary evidence, the
Rent Controller, Nagpur, by his order dated 12th of November,
1999 passed an order of eviction against the appellant.
6. Against the aforesaid order of eviction passed by the Rent
Controller, Nagpur, an appeal was taken before the Additional
Collector, Nagpur, which also affirmed the order of eviction
passed against the appellant.
7. Feeling aggrieved, a writ petition was moved before the
High Court of Bombay at Nagpur Bench which, by a final order,
remanded the matter back to the Additional Collector for
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consideration afresh. After remand, the case was again
decreed in favour of the respondent on the ground of bonafide
requirement.
8. Again, a writ petition was filed against the aforesaid order
of the Additional Collector, Nagpur before the High Court of
Bombay at Nagpur Bench. During the pendency of the writ
petition, it was brought to the notice of the Court that a similar
eviction proceeding was started by the respondent against
another tenant Mr. Lal Mohd. which was decreed and
possession was taken from Lal Mohd. by the respondent and
the respondent, thereafter, started using the same. This fact
was in fact brought to the notice of the High Court and the High
Court, having found it to be true, again remitted the case back
to the Additional Collector, Nagpur, for consideration afresh but
after the second remand, again the order of eviction was
affirmed in favour of the respondent by the Additional Collector,
Nagpur.
9. Against the aforesaid order of the Additional Collector,
Nagpur, again a writ petition was moved by the tenant/appellant
in the High Court of Bombay at Nagpur Bench. Again, by an
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order dated 16th of January, 2004, the High Court had partially
allowed the writ petition and quashed the order dated 5th of
November, 2003 passed by the Additional Collector, Nagpur
and directed the Additional Collector to hear and decide the
appeal afresh after affording an opportunity of being heard to
the parties and permitted the respondent to file reply of affidavit
filed by the appellant. It was further directed that the appeal
shall be decided in the light of the law laid down by Bombay
High Court in Janba Daulatrao Borkar Vs. Rajesh Kumar
Ramjiwan Agarwal [1975 MHLJ 746].
10. When the matter was remanded again by the High Court,
the Additional Collector, Nagpur again dismissed the appeal by
his order dated 22nd of July, 2005. Feeling aggrieved by this
order of the Additional Collector, Nagpur, a writ application was
moved before the High Court, which by the impugned
Judgment was dismissed inter alia on a finding that the
respondent had successfully proved his bonafide requirement
of the shop in question and against the said order of the High
Court, this instant Special Leave Petition was filed, which on
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grant of leave, was heard in presence of the learned counsel
appearing for the respondent only.
11. Unfortunately, at the time of hearing, the learned counsel
appearing for the appellant was not present in Court to argue
this appeal before us. Therefore, we were not benefited by the
argument of the learned counsel for the appellant. However,
we have heard the learned counsel for the respondent. In this
appeal, in our view, the only question that needs to be decided
is whether the concurrent findings as affirmed by the High Court
in the writ application on the bonafide requirement of the suit
premises by the respondent was duly proved or not. From the
record, it appears to us that the appellant sought to argue that
the bonafide need of the respondent of the shop in question
was non-existent inasmuch as during the proceedings, the
respondent had constructed two shops and the need pleaded
by the respondent for starting a business for one of his sons,
who is dead and another son being absconding, could not be
accepted.
12. On the other hand, the learned counsel for the
respondent before the High Court had urged that since the
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landlord/respondent was the best judge of his need and that he
had produced material documents on the record that he had
sufficient experience in Kirana business and that he had
sufficient funds to do that business, the respondent had
discharged the burden of proving that the respondent bonafide
required the shop in question to start a business of Kirana in
the shop in question. Accordingly, the learned counsel
appearing for the respondent before us argued that in view of
the concurrent findings of fact arrived at by the Courts below,
this Court is not in a position to interfere with such concurrent
finding of fact on the question of requirement of bonafide need
of the landlord respondent until and unless it is found that the
findings arrived at were perverse or arbitrary.
13. Having perused the impugned Judgment of the High
Court and the orders of the Additional Collector and the Rent
Contoller, Nagpur, and after considering the subsequent events
that had occurred in the eviction proceeding, in which it was
brought to the notice of the Court that (1) one of his sons had
expired (2) Second son had absconded for the last 8-9 years
and (3) he had constructed two shop rooms where he has been
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carrying on business of Kirana, no order for eviction could be
passed without considering the aforesaid aspects of the matter
which was duly brought to the notice of the Court.
14. Unfortunately, in spite of repeated orders of remand
passed by the High Court as well as admissions made by the
respondent in his deposition about the fact stated in the
application for taking into consideration of subsequent events, it
would not be possible for us to accept the impugned Judgment
of the High Court, which had failed to consider the requirement
of the respondent after the subsequent events had occurred
namely (1) death of one son of the respondent (2) absconding
of the second son of the respondent for the last 8-9 years (3)
two shops having been taken possession of and (4) possession
was taken from another tenant Lal Mohd. in which, the third
son has been running a Leatho Machine Business.
15. In our view, although such admitted facts had not been
considered by the Courts below, we do not propose to allow the
appeal in full but remand the case back to the High Court, who
in turn, would frame issues to the extent whether in view of the
subsequent events, as stated herein earlier, the bonafide
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requirement of the landlord/ respondent has already been
satisfied or not.
16. For this purpose, it would be open to the respondent to
amend his pleadings of the eviction petition against which,
additional objection may also be filed by the tenant/appellant.
Thereafter, both parties shall be allowed to adduce evidence in
support of their respective cases and to reach a final finding of
fact on the question whether the case of bonafide requirement
of the respondent was duly proved and such findings along with
records and the evidence to be adduced for this purpose shall
be transmitted back to the High Court, who will, after
considering the evidence on record and the evidence that
would be taken after remand along with the findings of the Rent
Controller, finally decide whether the requirement of the
landlord/respondent was satisfied by the occurrence of
subsequent events either during the pendency of the appeal
before the Additional Collector, Nagpur or before the High
Court.
17. For the reasons aforesaid, we set aside the Judgment of
the High Court and send the case back to it for decision afresh
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in the light of the observations and directions made
hereinabove.
18. The High Court shall direct the Rent Controller, Nagpur to
complete the proceedings for taking up the matter, as directed,
within three months from the date of supply of a copy of its
order and the High Court, after receiving the records along with
evidence and documents from the Rent Controller, Nagpur, and
the findings made thereon, shall decide the same finally within
three months from the date of receipt of the records from the
Rent Controller, Nagpur, positively, without granting any
unnecessary adjournments to either of the parties.
19. The impugned Judgment of the High Court is thus set
aside and the appeal is allowed to the extent indicated above.
There will be no order as to costs.
………………………J.
[Tarun Chatterjee]
New Delhi; ………………………J.
October 28, 2009. [Aftab Alam]
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