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) Court Master

( Indu Satija) 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]