REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4244 OF 2006

Dinesh Kumar     …Appellant

Versus

Yusuf Ali             …Respondent  

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment  and  

order of the High Court of Madhya Pradesh  dated 25th January, 2006  

passed in Second Appeal No. 726 of 2003 by which the High Court  

while allowing the Second Appeal reversed the judgment and decree  

dated 16th October, 2003 passed by the First Appellate Court in  

First Appeal No. 2/2003 by which the First Appellate Court had  

reversed  the judgment and decree dated 13.12.2002 passed by the  

Trial Court in Civil Suit No. 30A/1999 allowing the application of  

the landlord for eviction of the tenant.  

2. Facts and circumstances giving rise to this appeal are that  

the appellant-tenant was inducted by the respondent-landlord on  

1.10.1978 in a shop in house No. 83, Main Street, Mhow for a non-

residential purpose on a monthly rent of Rs.150/-. The respondent-

landlord enhanced the rent from time to time and ultimately it was

enhanced  on  1.3.1995  to  the  extent  of  Rs.700/-p.m.   The  

respondent-landlord had taken a sum of Rs.35,000/- as loan from  

the appellant-tenant.  Some amount therefrom was to be adjusted  

towards a part of monthly rent.  Respondent-landlord filed suit  

No.30A/1999  on  1.4.1999  for  eviction  of  the  appellant  on  the  

grounds  of  nuisance  and  bone  fide  requirement  for  himself  

contending that he was carrying on business of plastic goods and  

shoes in a rented ‘Gumti’ measuring 3 ft. x 4 ft. on a Nalla.  

Respondent was in need of the disputed shop for carrying on his  

business alongwith his son Zulfikar Ali.  Parties exchanged the  

affidavits and examined large number of witnesses in support of  

their respective claims before the Trial Court.  The Trial Court,  

vide judgment and decree dated 13.12.2002, decreed the suit for  

eviction under Section 12(1)(f) of  M.P. Accommodation Control  

Act,  1961  (hereinafter  referred  to  as  the  ‘Act  1961’)  on  the  

ground of bona fide need, however, did not accept the plea  of  

nuisance.  

3. Being aggrieved, the appellant preferred the First Appeal  

No.2/2003 before the First Additional District Judge, Mhow and the  

same was allowed vide judgment and decree dated 16.10.2003 on the  

ground that the landlord had enhanced the rent from time to time;  

his son had been in employment in Dubai, therefore, the bona fide  

need was a pretext to enhance the rent or evict the tenant.  

4. Being  aggrieved,  the  landlord-respondent  approached  the  

High Court by filing Second Appeal No.726 of 2003 under Section  

100 of the Code of Civil Procedure, which has been allowed vide  

judgment and order dated 25.1.2006. Hence, this appeal.  

5. Mr.  Manish  Vashisht,  learned  counsel  appearing  for  the  

appellant has vehemently submitted that the High Court committed  

grave  error  in  entertaining  the  Second  Appeal  though  no  

substantial question of law was involved therein.  As to whether  

the courts below have rightly appreciated the evidence on record  

to find out as to whether need of the landlord is real and bona  

fide, is a question of fact.  Therefore, the Second Appeal itself  

was not maintainable.  The suit property is not required by the  

landlord as he is doing his business at another premises for last  

35  years;  his  son  is  in  employment  in  Dubai.   Therefore,  the  

appeal deserves to be allowed.  

6. Per  contra,  Mr.  A.K.  Chitale,  learned  senior  counsel  

appearing for the respondent-landlord has vehemently opposed the  

appeal contending that if the finding of fact recorded by the  

court below is found to be perverse, the High Court can entertain  

the Second Appeal and re-appreciate the evidence.  The landlord is  

the best Judge to determine as to what is his requirement and what  

is the proper place of his business.  A tenant cannot force the  

landlord  to  carry  out  his  business  in  the  rented  premises  of  

negligible dimension.  Therefore, the judgment and order of the

High Court does not warrant any interference. The appeal is liable  

to be dismissed.     

7. We have considered the rival submissions of learned counsel  

for the parties and perused the record.  

8. In Prativa Devi Vs. T.V. Krishnan (1996) 5 SCC 353, this  

Court held that the landlord is the best judge of his requirement  

and courts have no concern to dictate the landlord as to how and  

in what manner he should live.

9. However, in Ram Dass Vs.  Ishwar Chander & Ors.  AIR 1988  

SC 1422, this Court held that ‘bona fide need’ should be genuine,  

honest  and  conceived  in  good  faith.   Landlord’s  desire  for  

possession, however honest it might otherwise be, has, inevitably,  

a subjective element in it.  The “desire” to become “requirement”  

must have the objective element of a “need” which can be decided  

only by taking all relevant circumstances into consideration so  

that the protection afforded to tenant is not rendered illusory or  

whittled down.  The tenant cannot be evicted on a false plea of  

requirement  or  “feigned  requirement”.  (See  also  Rahabhar  

Productions Pvt. Ltd. Vs.  Rajendra K. Tandon AIR 1998 SC 1639;  

and Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta AIR 1999 SC 2507).  

10. In  Malpe  Vishwanath  Acharya  &  Ors.   Vs.  State  of  

Maharashtra & Anr. AIR 1998 SC 602, this Court emphasised the need

for  social  legislations  like  the  Rent  Control  Act  striking  a  

balance between rival interests so as to be just to law. “The law  

ought not to be unjust to one and give a disproportionate benefit  

or protection to another section of the society.”   

11. In Siddalingamma & Anr. Vs. Mamtha Shenoy AIR 2001 SC 2896,  

this Court held that while determining the case of eviction of the  

tenant,  an  approach  either  too  liberal  or  too  conservative  or  

pedantic must be guarded against. If the landlord wishes to live  

with comfort in a house of his own, the law does not command or  

compel him to squeeze himself and dwell in lesser premises so as  

to protect the tenant’s continued occupation in tenancy premises.  

However,  the  bona  fide  requirement  of  the  landlord  must  be  

distinguished from a mere whim or fanciful desire. It must be  

manifested in actual need so as to convince the Court that it is  

not a mere fanciful or whimsical desire.  The need should be bona  

fide and not arbitrary and the requirement pleaded and proved must  

neither  be  a  pretext  nor  a  ruse  adopted  by  the  landlord  for  

evicting the tenant.  Therefore,  the Court must take relevant  

circumstances into consideration while determining the issue of  

bona fide need so that the protection afforded to a tenant is not  

rendered illusory or whittled down.

12. Second  appeal  does  not  lie  on  the  ground  of  erroneous  

findings of facts based on appreciation of the relevant evidence.  

The High Court should not entertain a second appeal unless it

raises a substantial question of law.  It is the obligation on the  

Court of Law to further the clear intendment of the Legislature  

and not to frustrate it by ignoring the same.

13. In Ram Prasad Rajak Vs. Nand Kumar & Bros. & Anr., AIR 1998  

SC 2730, this Court held that existence of substantial question of  

law  is  a  sine-qua-non  for  the  exercise  of  jurisdiction  under  

Section  100  of  the  Code  and  entering  into  the  question  as  to  

whether need of the landlord was bonafide or not, was beyond the  

jurisdiction of the High Court as the issue can be decided only by  

appreciating the evidence on record.

14. There may be a question, which may be a “question of fact”,  

“question  of  law”,  “mixed  question  of  fact  and  law”  and  

“substantial question of law.” Question means anything inquired;  

an  issue  to  be  decided.  The  “question  of  fact”  is  whether  a  

particular factual situation exists or not. A question of fact, in  

the Realm of Jurisprudence, has been explained as under:-

“A  question  of  fact  is  one  capable  of  being  answered by way of demonstration. A question of opinion is  one  that  cannot  be  so  answered.  An  answer  to  it  is  a  matter  of  speculation  which  cannot  be  proved  by  any  available evidence to be right or wrong.”  

(Vide  Salmond,  on  Jurisprudence,  12th  Edn.  page  69,  cited  in  

Gadakh Yashwantrao Kankarrao Vs. E.V. alias Balasaheb Vikhe Patil  

& ors., AIR 1994 SC 678).

15. In Reserve Bank of India & Anr. Vs. Ramakrishna Govind  

Morey, AIR 1976 SC 830, this Court held that whether trial Court  

should not have exercised its jurisdiction differently, is not a  

question of law or a substantial question of law and, therefore,  

second appeal cannot be entertained by the High Court on this  

ground.

16. In Kulwant Kaur & Ors. Vs. Gurdial Singh Mann (dead) by  

L.Rs. & Ors. AIR 2001 SC 1273, this Court held that the question  

whether  Lower  Court’s  finding  is  perverse  may  come  within  the  

ambit of substantial question of law.  However, there must be a  

clear finding in the judgment of the High Court as to perversity  

in order to show compliance with provisions of Section 100 CPC.  

Thus,  this  Court  rejected  the  proposition  that  scrutiny  of  

evidence is totally prohibited in Second Appeal.   

17. In Sheel Chand Vs. Prakash Chand, AIR 1998 SC 3063, this  

Court  held  that  question  of  re-appreciation  of  evidence  and  

framing  the  substantial  question  as  to  whether  the  findings  

relating to factual matrix by the court below could vitiate due to  

irrelevant consideration and not under law, being question of fact  

cannot be framed.   

18. In Rajappa Hanamantha Ranoji Vs. Mahadev Channabasappa &  

Ors. AIR 2000 SC 2108,  this Court held that it is not permissible  

for the High Court to decide the Second Appeal by re-appreciating

the evidence as if it was deciding the First Appeal unless it  

comes to the conclusion that the findings recorded by the court  

below were perverse.

19. In Jai Singh Vs. Shakuntala, AIR 2002 SC 1428, this Court  

held that it is permissible to interfere even on question of fact  

but it has to be done only in exceptional circumstances. The Court  

observed as under:-

“While scrutiny of evidence does not stand out to  be  totally  prohibited  in  the  matter  of  exercise  of  jurisdiction in the second appeal and that would, in our  view,  be  too  broad  a  proposition  and  too  rigid  an  interpretation of law not worth acceptance but that does  not also clothe the superior courts within jurisdiction to  intervene and interfere in any and every matter- it is  only in very exceptional cases and on extreme perversity  that the authority to examine the same in extensor stands  permissible it is a rarity rather than a regularity and  thus in fine it can be safely concluded that while there  is no prohibition as such, but the power to scrutiny can  only  be  had  in  very  exceptional  circumstances  and  upon  proper circumspection.”

20. In P. Chandrasekharan & Ors. Vs. S. Kanakarajan & Ors.  AIR  

2007  SC  2306,   this  Court  reiterated  the  principle  that  

interference in second appeal is permissible only when the findings  

are based on misreading of evidence or are so perverse that no  

person of ordinary prudence could take the said view. More so, the  

Court must be conscious that intervention is permissible provided  

the case involves a substantial question of law which is altogether  

different from the question of law. Interpretation of a document

which  goes  to  the  root  of  title  of  a  party  may  give  rise  to  

substantial question of law.

21. In  Shakuntala  Chandrakant  Shreshti  Vs.  Prabhakar  Maruti  

Garvali & Anr., AIR 2007 SC 248, this Court considered the scope of  

appeal under Section 30 of the Workmen’s Compensation  Act, 1923 and  

held as under :

“Section 30 of the said Act postulates an appeal directly to  the High Court if a substantial question of law is involved in  the  appeal…..  A  jurisdictional  question  will  involve  a  substantial question of law. A finding of fact arrived at  without there being any evidence would also give rise to a  substantial question of law………… A question of law would arise  when the same is not dependent upon examination of evidence,  which  may  not  require  any  fresh  investigation  of  fact.  A  question of law would, however, arise when the finding is  perverse in the sense that no legal evidence was brought on  record or jurisdictional facts were not brought on record.”

22. Similar view has been reiterated by this Court in Anathula  

Sudhakar Vs. P. Buchi Reddy (Dead) by LRs & Ors. AIR 2008 SC 2033.

23. In Rishi Kumar Govil Vs.  Maqsoodan and Ors. [(2007) 4 SCC  

465], this Court while dealing with the provisions of Section  

21(1)(a) of the U. P. Urban Buildings (Regulation of Letting,  

Rent and Eviction) Act, 1972 and Rule 16 of the U. P. Urban  

Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972,  

held  that  the  bona  fide  personal  need  of  the  landlord  is  a  

question of fact and should not be normally interfered with.

24. There is no prohibition to entertain a second appeal even  

on question of fact provided the Court is satisfied that the  

findings of the courts below were vitiated by non-consideration  

of  relevant  evidence  or  by  showing  erroneous  approach  to  the  

matter. (Vide Jagdish Singh Vs. Nathu Singh, AIR 1992 SC 1604;  

Smt. Prativa Devi Vs. T.V. Krishnan, (1996) 5 SCC 353; Satya  

Gupta @Madhu Gupta Vs. Brijesh Kumar, (1998) 6 SCC 423 Ragavendra  

Kumar Vs. Firm Prem Machinery & Co., AIR 2000 SC 534; and Molar  

Mal Through Lr. Vs. M/s. Kay Iron Works Pvt. Ltd., AIR 2000 SC  

1261).

25. Thus, the law on the subject emerges to the effect that  

Second Appeal under Section 100 CPC is maintainable basically on  

a substantial question of  law and not on facts. However, if the  

High Court comes to the conclusion that the findings of fact  

recorded  by  the  courts  below  are  perverse  being  based  on  no  

evidence  or  based  on  irrelevant  material,  the  appeal  can  be  

entertained  and it is permissible for the Court to re-appreciate  

the  evidence.  The  landlord  is  the  best  Judge  of  his  need,  

however, it should be real, genuine and the need may not be a  

pretext to evict the tenant only for increasing the rent.

26. The instant case is required to be examined in the light  

of the aforesaid settled legal propositions.

27. The admitted facts of the case are that the suit property,  

18 ft. x 14 ft.  i.e. 152 Sq.ft., is situated at a main road in  

the market.  The premises in which the landlord is running his  

business is 3 ft. x 4 ft. at a monthly rent of Rs. 75/-. The  

‘Gumti’ is situated on the Nalla on the land of Cantonment Board.  

The said ‘Gumti’ belongs to one Mohd. Hussain who had established  

it by encroaching upon the land of the Cantonment Board.  Son of  

the landlord, namely, Zulfikar Ali is in service in Dubai for  

last several years.  The suit premises was earlier on rent with  

Dental  Surgeon  Dr.  Sharma  from  1970  to  1978  who  vacated  it  

considering the need of the landlord.  After eviction of Dr.  

Sharma, it was given on rent to the appellant at a monthly rent  

of Rs.150/-p.m. The rent was enhanced to the tune of Rs.400/-p.m.  

in 1990, to Rs.500/-p.m in 1991 and further enhanced to Rs.700/-

p.m. on 1.3.1995.  Landlord had taken loan of Rs.35,000/- from  

the tenant and a part of it was to be adjusted toward the monthly  

rent for the said premises.  

28. The Trial Court after considering the pleadings framed as  

many as 10 issues. However, the relevant issues had been Issue  

Nos.  1  and  3  regarding  the  bona  fide  and  real  need  of  the  

landlord.  After considering the evidence on record including  

increase  in  rent  from  time  to  time  and  the  fact  that  after  

evicting Dr. Sharma, Dental Surgeon, in 1978, the landlord in  

spite of starting his business in the suit premises rented it out  

to  the  appellant,  came  to  the  conclusion  that  need  of  the

landlord was bona fide as he was running his business on a rented  

premises having a very small area at an unhygienic place i.e.  

platform on a Nalla.  No other alternative or convenient place  

was available to him to shift/start his business and there had  

been no increase in rent of the suit premises after 1995.    The  

said findings have been disturbed by the First Appellate Court  

mainly on the ground that the landlord did not require the suit  

premises for running his business, rather it was a pretext to  

increase the rent as rent had been increased from time to time  

and the landlord did not occupy the premises after being vacated  

by Dr. Sharma, Dentist.  These circumstances made it clear that  

the  landlord  wanted  to  achieve  the  ulterior  purpose.   The  

landlord could be the best Judge of his need but he cannot be an  

arbitrary dictator.  There was no evidence to show that his son  

Zulfikar Ali was interested to come back and join his father in  

business.   

29. The High Court reached the conclusion that the landlord,  

in spite of the fact that he was owner of the suit premises could  

not be forced to continue his business in a shop of negligible  

area in a ‘Gumti’ made on platform on Nalla. Mere continuation of  

long tenancy could not be a ground to reject  the case of bona  

fide need.  

30. The admitted facts referred to hereinabove, make it clear  

that  the  appellant  is  enjoying  the  tenancy  of  the  premises

measuring  152  sq.ft.  for  the  last  32  years.  The  landlord-

respondent is running his business at a ‘Gumti’ measuring 3 ft. x  

4  ft.  made  on  a  platform  on  a  Nalla  in  Cantonment  Board  

established by encroaching upon the public land. The demand of  

plastic goods in which the landlord is dealing is increasing day  

by  day.  Undoubtedly  after  evicting  Dr.  Sharma  from  the  suit  

premises, the landlord has not started his business in the said  

premises but the incidence which occurred several decades ago  

cannot be relevant to determine the actual controversy for the  

reason that need of the landlord is to be examined as per the  

circumstances prevailing on the date of the institution of the  

case. Thus, an incident too remote from the date of institution  

of  suit  may  not  be  relevant  for  consideration  at  all.  

Undoubtedly, the rent has been increased from time to time and it  

is not the case of the appellant-tenant that the rent had been  

enhanced arbitrarily or unreasonably or it could not be enhanced  

in law. The fact that rent had not been enhanced since 1995, the  

First Appellate Court erred in drawing the inference that need of  

the landlord may not be bona fide and it might be a pretext for  

increasing the rent or to evict the tenant. There is no pleading  

by the tenant that any attempt had ever been made by the landlord  

to enhance the rent during the period of 7 years prior to the  

date of institution of the suit. Undoubtedly, Zulfikar Ali, son  

of  the  landlord  is  continuing  his  service  in  Dubai  for  last  

several years and he has not appeared in witness box to prove  

that he was willing to start business with his father,  remains

immaterial  or  cannot  put  balance  in  favour  of  the  appellant-

tenant for the reason that the landlord himself wants to start  

his  business  in  the  suit  premises.  Therefore,  it  remains  

immaterial  whether  his  son,  Zulfikar  Ali  wants  to  join  his  

business or not.   

31. In such a fact-situation, we do not find any fault with  

the judgment of the High Court that it has committed an error  

reaching  the  conclusion  that  finding  recorded  by  the  First  

Appellate Court were perverse.  

32. However, in the facts and circumstances of the case, the  

High Court did not consider the relevant factors i.e.  as  

what would be the magnitude of his business, and whether  

partial eviction of the appellant could serve the purpose  

of both the parties.  

33. Thus, in order to meet the ends of justice the appeal is  

allowed  partly.  The  landlord/respondent  shall  recover  

possession of half of the area of the premises dividing  

the same either on the side of “Bohara Masjid” or on the  

other side.

Appeal stands disposed of accordingly. No costs.  

…………………………………..J.    (Dr. B.S. CHAUHAN)

           …………………………………..J.             (SWATANTER KUMAR)

New Delhi, May 26, 2010