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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

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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)  -----------------------------------------                   -----------------------------------------

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   (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

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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.