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CASE NO.: Appeal (civil) 3695  of  2001

PETITIONER: HAMIDA & OTHERS

       Vs.

RESPONDENT: MD. KAHLIL

DATE OF JUDGMENT:       08/05/2001

BENCH: D.P. Mohapatra & Shivaraj V. Patil

JUDGMENT:

Shivaraj V. Patil J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   This  appeal  is  by the legal  representatives  of  the plaintiff in title suit no.  13/84 filed for eviction of the defendant  from the suit premises.  The plaintiff filed  the said  suit stating that the suit premises was let out to the defendant as a tenant on a monthly rent of Rs.  125/- in the year  1972;   the  defendant  failed to pay  the  rent  from October, 1983;  he required the suit premises reasonably and in  good faith for accommodation of large number of  members of his family;  he has six sons, two of whom were unemployed youth and has also a grown-up unmarried daughter besides his nephew who was also unemployed.  He wanted to open a shop in the  outer room of suit premises just to engage his sons and nephew  in  the  business and that he had no house  in  that town.   The  defendant  had  filed   a  suit  for   specific performance in respect of the same property.

   The  trial  court  dismissed  the   suit  filed  by  the plaintiff for eviction and decreed the suit of the defendant filed for specific performance.  The plaintiff filed appeals against judgments and decrees passed in both the suits.  The first  appellate  court  reversed  them.   In  other  words, decreed  the  suit of the plaintiff filed for  eviction  and dismissed  the  suit  filed by the  defendant  for  specific performance.   Aggrieved  by the same, the  defendant  filed second  appeals  before  the  High Court.   The  High  Court confirmed   the  judgment  of   the  first  appellate  court dismissing  the  suit  filed by the defendant  for  specific performance;   however,  allowed  the   second  appeal  from appellate  decree No.  113/91(R), in effect, dismissing  the suit  filed  by  the plaintiff for seeking eviction  of  the defendant.  Hence this appeal.

   The  learned  counsel for the appellants contended  that the  High Court has manifestly erred in interfering with the judgment  and  decree  of the first appellate  court  merely re-appreciating   the  evidence  in   the  absence  of   any

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substantial  question  of  law   arising  for  consideration between  the  parties as required under Section 100  of  the Code  of  Civil  Procedure;  the High Court could  not  have reversed  finding  of fact recorded by the  first  appellate court  even assuming that one other view was possible to  be taken;   the finding of the first appellate court was  based on   proper  appreciation  of   evidence  and  on  objective assessment  of  the  same.   The  learned  counsel  for  the respondent   made   submissions   supporting  the   impugned judgment.

   While  narrating the facts of the case, we have  already noticed  that  the suit filed by the defendant for  specific performance  stood dismissed.  The defendant in his  written statement  claimed that although he was a tenant of the suit premises,  subsequently  there was an agreement to sell  the same  to him by the plaintiff and as such their relationship as  tenant and landlord came to be terminated.  However,  he continued  to pay rent to the plaintiff even after the  said agreement  of sale on compassionate ground as the  plaintiff was  very  poor  and needy person.  The  suit  for  specific performance  was filed by the defendant in 1987.  In view of the  dismissal  of  the said suit, there is no need  to  say anything more on this aspect.  The first appellate court has noticed  that the plaintiff in support of his contention  of reasonable and bona fide need in his evidence stated that he has  got six sons, a nephew, a daughter and his wife whereas he has got only three rooms for residence;  his two sons and a  nephew were grown up and unemployed for whom he wanted to establish  a shop in the outer portion of the suit  premises and  wanted  to  use the rear portion  for  his  residential purposes.   This evidence of the plaintiff was supported  by the  evidence  of his nephew and also one more witness,  the next  door neighbour.  The defendant in his evidence  stated that  the  eldest son of the plaintiff got married  a  month back  (in April, 1997) and he was residing in the same house in  which  the entire family of the plaintiff resides.   The first appellate court has also observed that the only ground of  defence taken by the defendant was the existence of  the agreement  to  sell and that there was no other evidence  on behalf  of  the defendant to meet the averments made in  the plaint.   The  first  appellate court on the  basis  of  the pleadings  and  on proper appreciation of the evidence  held that  the  requirement of the premises by the plaintiff  was both  reasonable  and  bona fide, adding that the  need  was further  intensified and grown in magnitude by the efflux of time  as  it  was  very   difficult  for  the  plaintiff  to accommodate  a  newly  married  couple and  seven  grown  up children with himself and his wife in a small house of three rooms  by maintaining the secrecy and decency as expected in a  middle class family.  It is to be mentioned here that the original  plaintiff  expired  on  19.11.1992.   The  present appellants have come on record as his legal representatives. Having regard to large number of members of the family which has  grown  in course of time, even after the death  of  the original  plaintiff, the bona fide and personal need of  the premises for the family members continued.

   The High Court has upset the finding of fact recorded by the first appellate court, taking a different view merely on re-  appreciation  of evidence in the absence of  valid  and acceptable  reasons to say that the findings recorded by the first  appellate  court could not be sustained  either  they being  perverse or unreasonable or could not be supported by any  evidence.  The High Court neither framed a  substantial

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question  of  law nor any such question is indicated in  the impugned  judgment as required under Section 100 of the Code of  Civil Procedure.  The approach of the High Court, in our view,  is clearly and manifestly erroneous and unsustainable in law.  Para 10 of the impugned judgment reads :-

   The  appellate court although has decided the issue  of personal necessity but from the judgment it appears that the appellate  court  has not decided this issue in its  correct perspective.   Since  the trial court has not  recorded  any finding  on  the  issue of personal necessity,  the  finding recorded  by  the  appellate  court  cannot  be  said  to  a concurrent  finding  of  fact.   I  am,  therefore,  of  the definite  view  that  in such circumstance, this  court  can re-appreciate  the  evidence  and  scrutinize  the  findings recorded  by  the appellate court under section  100  C.P.C. when  admittedly  this  issue was not decided by  the  trial court.

   ........................................

   The  sons  of  the plaintiff for whose  requirement  the plaintiff  sought  eviction,  have not been  examined.   The nephew  of  the  plaintiff  was examined as  a  witness  who supported the case of the plaintiff.  The plaintiff has also not  led any evidence to the effect that the house  property where the plaintiff resides, is not sufficient for their own use and occupation.  There is also no evidence to the effect that  suitable alternative accommodation is not available to the plaintiff for meeting the requirement.  I am, therefore, of the view that the finding recorded by the appellate court on  the  issue of personal necessity cannot be sustained  in law for want of sufficient evidence.

   As  can be seen from the para extracted above, the  High Court  thought that it could re-appreciate the evidence  and scrutinize  the  findings  recorded by the  first  appellate court  under  Section  100 CPC.  This  approach  is  plainly erroneous and against law.  The High Court was also wrong in saying  that the plaintiff did not lead sufficient  evidence to  establish his bona fide requirement.  As observed by the first  appellate  court  and noted above already,  there  is evidence  of  the plaintiff, his nephew and  the  neighbour. The  finding  of fact recorded by the first appellate  court based  on evidence could not be interfered with by the  High Court,  that too in the absence of any substantial  question of law that arose for consideration between the parties.

   We  repeat and reiterate this position as stated by this Court  time and again.  In one such judgment in Satya  Gupta (Smt)  Alias  Madhu Gupta vs.  Brijesh Kumar [(1998)  6  SCC 423], this Court, in para 16, has stated thus:  -

   16.  At the outset, we would like to point out that the findings  on  facts by the lower appellate court as a  final court  of  facts, are based on appreciation of evidence  and the  same  cannot  be  treated as perverse or  based  on  no evidence.   That being the position, we are of the view that the  High  Court,  after  reappreciating  the  evidence  and without  finding  that the conclusions reached by the  lower appellate court were not based on the evidence, reversed the conclusions on facts on the ground that the view taken by it was  also a possible view on the facts.  The High Court,  it is well settled, while exercising jurisdiction under Section 100  CPC, cannot reverse the findings of the lower appellate

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court  on facts merely on the ground that on the facts found by the lower appellate court another view was possible.

   In  this  view,  we  find it difficult  to  sustain  the impugned  judgment.   Hence  the  appeal  is  allowed.   The impugned  judgment and decree are set aside and that of  the first   appellate  court  are   restored.    The   defendant (respondent  herein)  shall pay cost of Rs.  5,000/- to  the plaintiff (appellants herein).