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CASE NO.: Appeal (civil)  1233 of 2006

PETITIONER: Ushabai & Ors                                                    

RESPONDENT: M/s.Balkrishna Biharilal & Ors.                                   

DATE OF JUDGMENT: 23/02/2006

BENCH: A.R.Lakshmanan & A.K. Mathur

JUDGMENT: J U D G M E N T  [Arising out of S.L.P.(c) No.11446 of 2003]

A.K. MATHUR, J.

               Leave granted.

               This appeal is directed against an order passed by the  learned Single Judge of the Madhya Pradesh High Court in Second  Appeal No.382 of 1999 whereby learned Single Judge allowed the  appeal of the defendants and set aside the decree of eviction granted  by the first appellate court . Hence this appeal.

               The original owner of the property which is situated in  Khargaon Nagar was one  Madhav Rao.  He let out the suit premises  to one Balakrishna on a monthly rent of Rs.50/- on 1.12.1950. Later  on a rent note  was executed inter se parties on 24.11.1955.  On  3.3.1964  Madhav Rao felt  the need of money and therefore, he took  a sum of Rs.15,000/- from Balakrishna and executed a mortgage  deed on 3.3.1964 in favour of Balakrishna’s two sons namely  Vijaykrishna and Shyam Sunder mortgaging the suit premises.  Madhav Rao then effected a partition of his properties including the  present suit house which fell in the share of his son, Mahesh Parsai.  Mahesh became the owner of the suit house.  On his death, the  present plaintiffs who are the widow and sons respectively succeeded  to the suit premises and became owners.  The plaintiffs claiming to  be the owners and landlords of the suit premises filed a suit out of  which this present appeal arises against two sons of Balakrishna for  their eviction from the suit house. The plaintiffs got the mortgage  deed redeemed in their favour on 8.6.1982 after tendering the  mortgage money. Thereafter, the plaintiffs called upon the defendants  to vacate the suit premises as there was bona fide need of the  plaintiffs i.e. for one of the sons,  namely  Pramod for doing business.   It was also pointed out that the defendants had created sub-tenancy.  Thus, the plaintiffs sought eviction of the defendants from the suit  premises on two grounds i.e. bona fide need of Pramod for doing  business under Section 12(1)(f) of the Madhya Pradesh  Accommodation Control Act (hereinafter to be referred to as "the  Act") and sub-letting of the suit premises to one firm falling under  section 12(1)(b) of the Act.

               The defendants contested the averments of the plaintiffs  and resisted the suit for eviction. The defendants averred that the suit  was not maintainable because there did not exist any relationship of  landlord and tenant between the parties after execution of mortgage  deed, Ext. P-1. Redemption of the mortgage deed  was also denied  by the defendants.  

               The trial court held that the mortgage has not been

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redeemed, no case for bona fide need as contemplated under  Section 12 (1) (f) of the Act was made out and that no case for sub- letting was also made out.  However, the trial court decreed mesne  profit for a sum of Rs.300/- per month against the defendants.  Aggrieved against the said decree, the plaintiffs as well as the  defendants filed appeals before the first appellate court.  The plaintiffs  in their appeal contended that they were entitled to seek eviction of  the defendants on both the grounds whereas the defendants  contended that no decree for mesne profit at the rate of Rs.300/- per  month could be granted and the suit should have been dismissed in  its entirety.

               The appellate court allowed both the appeals. So far as  the defendants’ appeal was concerned, the appellate court set aside  the decree for mesne profit granting Rs.300/- per month  and so far  as the plaintiffs’ appeal was concerned, it was partly allowed resulting  in  eviction on the ground falling under Section 12(1)(f) of the Act i.e.  bona fide need.  It was found that the plaintiffs required the suit  accommodation for bona fide need of their son, Pramod. It was also  held that since the plaintiffs have redeemed  the mortgage by paying  the mortgage money to the defendants,  earlier relationship of  landlord and tenant came into existence  enabling the plaintiffs to  seek eviction on the ground of bona fide necessity. Against this order,  second appeal came up before learned Single Judge of the High  Court in which two substantial questions of law were initially framed  which are as follows:

               " 1.    Whether in the facts and  circumstances of the case the findings of the  first  appellate court on the point of genuine need of  plaintiff/ respondents, is perverse, as arrived at in  total disregard of objective facts required to prove the  alleged need ?                          2.      Whether in the facts and  circumstances of the case the courts below erred in  not considering the entire joint family property for  availability of alternative accommodation for starting  the business of plaintiff’s major son Pramod Kumar?"

But the learned Single Judge realized that more substantial questions  of law arise in the matter, therefore,  the following substantial  questions of law were framed later on.

               " 3.    Whether  lower appellate court was  justified in holding that consequent upon the payment  of mortgage money by Ushabai redeeming the  mortgage (Ex.P.-1), the tenancy between the parties  revived ?

               4.      Whether, finding of lower appellate  court that the mortgage stood redeemed is  sustainable with reference to facts ?

               5.      Whether, in the facts of the case, it   could be gathered that it was a case of surrender of  tenancy rights on execution of mortgage ?

               6.      Whether, plaintiffs were entitled to file  a suit for eviction on the ground covered under  Section 12(1) of the Act or their remedy was to claim  possession on the strength of their title ?

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               7.      In view of the finding that mortgage  stood redeemed, whether decree for eviction can be  upheld on the basis of plaintiff’s title, as mortgagors  and whether there is a material to sustain such  decree ?

               8.      Can a decree for eviction passed  under the provisions of the M.P. Accommodation  Control Act be confirmed on the basis of title if there  is any material to sustain it ?"

               The learned single Judge after hearing both the parties  set aside the order of Ist Additional District Judge, Khargaon on the  ground that there was complete surrender of tenancy in favour of   defendant because of mortgage.  Hence the present appeal.                 We have heard learned counsel for the parties and  perused the records. So far as the question with regard to mortgage  is concerned, we are of the opinion that the mortgage is discharged  after the entire payment has been made by the plaintiffs to the  defendants and in view of the fact that the mortgaged money has  been paid to the defendants, thereafter the only question that  remained to be decided by learned Single Judge was whether the  need of the plaintiffs was bona fide or not. Learned Single Judge of  the High Court  has unnecessarily mixed up the question of eviction  with the mortgage, the mortgage deed;  Ext.P-1 was redeemed after  full consideration  having been paid therefore, there was no necessity  to go into the question whether mortgage was redeemed or not. After  going through the finding of the first appellate court we are satisfied  that the mortgage amount has been received by the defendants and  this fact was  admitted by Shyam Sundar that mortgage amount has  been received. In such a situation, if no endorsement has been made  on Ext.P-1, that would not make any difference. Once Shyam Sundar,  one of the defendants has admitted receipt of the money then simply  because of non-endorsement on Ext.P-1 would not mean that the  amount in question has not been paid and the mortgage has not been  redeemed. Once, mortgage has been redeemed, then the plaintiffs  became  full owner of the suit premises as per the partition and  therefore, they are entitled  to maintain the suit on the ground of bona  fide  necessity. But the question of bona fide  necessity was not   considered by learned Single Judge.  Learned Single Judge has  interpreted Ext.P-1 to be subsisting mortgage.  This, in our opinion, is  not the correct approach.  It was also admitted by the defendants that  they were inducted as tenants  in the suit premises and the suit  premises belonged to one Madhav Rao who has  given it to the  plaintiffs. Therefore, the plaintiffs are entitled to maintain their suit for  eviction on the grounds of bona fide need and sub-letting. However,  the question of sub-letting has failed. But so far as the question of  bona fide need of the plaintiffs is concerned, it should be examined  by the learned Single Judge of the High Court and  finding be  recorded whether  the eviction sought by the plaintiffs  on the ground  of bona fide necessity has been correctly approached by the first  appellate court or not.  This question has not been examined by  learned Single Judge of the High Court whether  the bona fide need  of the plaintiffs has been proved or not. Let  this issue be examined  by learned Single Judge of the High Court whether  bona fide need  has been established by the plaintiffs or not. Therefore, we allow this  appeal, set aside the order of learned Single Judge of the High Court  of Madhya Pradesh passed in Second Appeal No.382 of 1999 on  10.4.3003 and remit the matter back to the High Court to consider the  issue whether  the Court below has correctly approached the bona  fide need of the plaintiffs or not.  So far as  framing of substantial  questions of law by the High Court is concerned, it is always open  if  learned Single Judge considers that some more substantial questions  of law arise in the matter, he can frame the same.  This Court in the  case of Thiagarajan & Ors. Vs. Sri Venugopalaswamy B. Koil & Ors.

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reported in (2004) 5 SCC 762 has taken the view that by virtue of  proviso to Section 100(5)  the High Court can frame substantial  questions of law if they arise in the matter for the reasons to be  recorded.   Hence we allow the appeal and set aside the order of the  High Court and remit the matter to the High Court to decide the issue  of plaintiffs’ bona fide necessity. Since this is an old matter, we  request that the High Court may expedite the hearing of the second  appeal. No costs.