REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4889_ OF 2010  (Arising out of Special Leave Petition (Civil) NO. 33402 OF 2009)

M/S. Bhanwarlal Dugar & ORS. … Appellants

Versus

Bridhichand Pannalal & Ors. … Respondents

JUDGMENT

B. SUDERSHAN REDDY, J.

Leave granted.

2. This is a landlord’s appeal by Special Leave against the  

order  of  the  High  court  reversing  the  concurrent  decree  of  

eviction  from  commercial  premises  at  Guwahati  in  Assam.   The  

Trial  Court,  the  Appellate  Court  concurrently  found  that  the  

respondent was a wilful defaulter and liable to be evicted.  They  

have also found that the appellants herein required the premises  

for their own business purpose.  The High Court in exercise of  

its jurisdiction under Section 115 of the Code of Civil Procedure  

reversed  the  concurrent  findings  of  facts  and  accordingly  

dismissed the suit for eviction filed by the appellants against  

the respondents.

3. The premises in question is a commercial one.  There is no  

dispute of landlord and tenant relationship between the parties.  

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Only two substantial issues framed by the Trial Court were: (1)  

whether the respondent committed any default in payment of rents  

since April, 1993 as pleaded by the appellants? (2) Whether the  

appellants required the suit premises bona fide for their own  

use? On both the issues the Trial Court as well as the Appellate  

Court concurrently held in favour of the appellants.  

4. The High Court upon re-appreciation of evidence reversed  

the findings of the courts below.  

5. In  this  appeal,  Shri  Vijay  Hansaria,  learned  senior  

counsel  appearing  on  behalf  of  the  appellants  strenuously  

contended  that  the  High  Court  committed  a  manifest  error  in  

interfering with the concurrent findings of facts arrived at by  

the  courts  below  by  reappreciating  the  evidence  which  is  

impermissible  in  law.  He  also  contended  that  the  appellants  

clearly made out and established their case that the respondent  

committed default in payment of rents since April, 1993 till the  

date  of  filing  of  the  suit.   The  appellants  have  also  

successfully  established  that  the  premises  in  question  is  

required by them for their own business purposes.  His submission  

was that the High Court exceeded its jurisdiction in interfering  

with  the  concurrent  findings  of  facts.  Shri  P.S.  Narasimha,  

learned  senior  counsel  appearing  on  behalf  of  the  respondent  

contended that the High Court on facts was justified in reversing  

the  findings  of  the  courts  below  inasmuch  as  the  findings  

recorded by the courts below were perverse in nature.  It was  

submitted  that  the  courts  below  committed  serious  error  in  

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exercise of their jurisdiction and ignoring  vital evidence and  

in  such  circumstances  the  High  Court  was  well  within  its  

jurisdiction to correct the errors committed by the courts below  

in  exercise of their jurisdiction.  

Bona fide Requirement of the Premises:

6. The appellants in their plaint in clear and categorical  

terms pleaded that the schedule premises is bona fide required by  

them “for their own use as they and their sons have to do their  

own business from the schedule premises,………….” The respondent in  

the written statement pleaded that the schedule premises is not  

required bona fide by the appellants for their own use. That  

apart, it was further pleaded that the appellants already started  

new business in the year, 1997 in their own premises. “Besides  

this, the  plaintiffs have a number of tenants under them such as  

Canara Bank, Madan Electricals etc. in the same building, but no  

case has been filed against them for vacating the premises which  

shows that the plaintiffs are not in need of premises for their  

own use and occupation……….” Plaintiff No.2 examined himself as  

PW-1 in the present case.  It is specifically stated by him that  

the premises is required  for  starting new business for own sons  

for which purposes they have sufficient funds and also can manage  

required resources from the financial institutions for starting  

new business.  In the cross-examination it was suggested to PW-1  

that he did not state in the plaint as to what type of business  

the plaintiffs intended to start in that premises.  It was not  

suggested  that  the  appellants  did  not  possess  the  financial  

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resources for commencing their own business in the suit premises.  

It was however, suggested that many other premises were under the  

occupation of the tenants which suggestion was accepted by PW-1.  

7. The Trial Court upon appreciation of evidence available on  

record found that the appellants/plaintiffs do not have any other  

“suitable  place  to  start  their  own  business  except  the  suit  

premises which is situated on the ground floor”. The Appellate  

Court  without  reappreciating  the  evidence  available  on  record  

merely copied the findings of the Trial Court in verbatim.  It is  

needless to state that a Regular First Appeal is nothing but  

rehearing  of  the  suit  and  the  Appellate  Court  is  bound  to  

appreciate the evidence available on record and arrive at its own  

conclusions.  Only such conclusions arrived at upon appreciation  

of the evidence are conclusive and not normally interfered with  

by the revisional court by re-appreciating the evidence. In the  

case on hand the Appellate Court verbatim copied the judgment of  

the Trial Court without any independent application of mind and  

assessing the evidence.  The Appellate Court miserably failed to  

exercise its appellate jurisdiction.  The High Court is right in  

observing that the Appellate Court merely reproduced the judgment  

of the Trial Court without any independent application of mind.  

8. But the question that arises for our consideration in the  

present case is whether the Revisional Court is justified in re-

appreciating the evidence and substituting its own findings on  

the ground that the Appellate Court did not consider the evidence  

properly?  It  is  settled  law  that  the  High  Court  cannot  re-

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appreciate  the  evidence  and  set  aside  concurrent  findings  of  

facts by taking a different view of the evidence.  It is always  

open to the High Court to remit the matter if in its opinion the  

courts below did not consider the material evidence on record.  

In  the  instant  case  the  High  Court  instead  of  remitting  the  

matter  for  fresh  consideration  by  the  Appellate  Court  on  the  

ground that the Appellate Court failed to consider the material  

evidence on record had chosen to undertake that responsibility  

upon itself which we find it difficult to sustain.  

WILFULL DEFAULT :

9. We  find  that  the  First  Appellate  Court  committed  same  

mistake  even  while  considering  the  issue  relating  to  wilful  

default alleged to have been committed by the respondent.  On  

this issue also the Appellate Court merely re-produced verbatim  

judgment of the Trial Court.  

10. Considering  all  the  facts  and  circumstances  as  noticed  

above, we are constrained to hold that the order of the High  

Court cannot be sustained and as such we set aside the same and  

remit the matter to the First Appellate Court (Appellate Court of  

the Civil Judge No. 2, Kamrup, Guwahati) for hearing the appeal  

afresh for its disposal in accordance with law.  It is needless  

to observe that the Appellate Court shall re-hear the matter and  

decide  all  the  issues  that  arise  for  its  consideration  by  

properly re-appreciating the evidence available on record. The  

appeal shall be heard and disposed of within six months from  

today.  

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11. The appeal is, accordingly, allowed without any order as  

to costs.  

....................J.  (B. SUDERSHAN REDDY)

....................J.  (SURINDER SINGH NIJJAR)

New Delhi,  July 5,  2010

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