REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.                 OF 2009 (Arising out of SLP (C) No. 1989 of 2007)

Mohd. Ismail                    …Appellant

VERSUS

Dinkar Vinayakrao Dorlikar                                    …Respondent

J U D G M E N T

TARUN CHATTERJEE,J.

1. Leave granted.   

2. This appeal is directed against the Judgment and Order  

dated  28th of  September,  2006  passed  by  a  learned  

Single Judge of the High Court of Judicature of Bombay  

at Nagpur Bench in W.P. (c) 5075 of 2005, by which the  

High Court  had dismissed the writ  petition and affirmed  

the order of the Additional Collector, Nagpur dated 22nd of  

July, 2005, which was filed against the order of the Rent  

Controller, Nagpur in Revenue Case No. 264/A-71(2)/92-

93  dated  12th of  November,  1999  thereby  allowing the  

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application of  the respondent for  grant  of permission to  

issue  quit  notice  under  Clause  13(3)(vi)  of  the  Rent  

Control Order, 1949.   

3. The case made out  by the  respondents  in  his  eviction  

petition may be summarized as follows :-

The  appellant  is  a  tenant  in  respect  of  a  Shop  Room  

measuring about 10’ x 26’ (hereinafter referred to as “the shop  

in question”) under the respondent for the last more than 20  

years at a monthly rental of Rs.600/- payable at the end of each  

English  Calendar  month.   In  the  application  for  eviction,  the  

respondent had alleged that since he was jobless and had to  

maintain a family of ten members and had no source of income,  

he wanted to start a ‘kirana business’ in the shop in question, in  

which business the respondent had sufficient experience and  

funds to start the same.  It was further alleged that he and his  

three  sons  required  two  shops  for  his  bonafide  need.  

Accordingly, the appellant was directed to vacate the shop in  

question  and  as  he  had  failed  to  deliver  possession  to  the  

respondent,  the  eviction  proceeding  was  started  against  the  

appellant on the ground of bonafide requirement.   

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4. The tenant/appellant appeared before the Rent Controller,  

Nagpur and contested the eviction proceeding by filing a written  

statement,  in  which  he  had  denied  the  material  allegations  

made in the application for eviction.  It was specifically denied  

by the appellant in the written statement that the respondent  

bonafide required the shop in question as the respondent was  

already  in  possession  of  sufficient  accommodation.  

Accordingly, the appellant sought for dismissal of the eviction  

petition.

5. Parties adduced evidence in support  of  their  respective  

claims  and  after  taking  oral  and  documentary  evidence,  the  

Rent Controller, Nagpur, by his order dated 12th of November,  

1999 passed an order of eviction against the appellant.     

6. Against the aforesaid order of eviction passed by the Rent  

Controller, Nagpur, an appeal was taken before the Additional  

Collector,  Nagpur,  which  also  affirmed  the  order  of  eviction  

passed against the appellant.   

7. Feeling aggrieved, a writ  petition was moved before the  

High Court of Bombay at Nagpur Bench which, by a final order,  

remanded  the  matter  back  to  the  Additional  Collector  for  

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consideration  afresh.   After  remand,  the  case  was  again  

decreed in favour of the respondent on the ground of bonafide  

requirement.   

8. Again, a writ petition was filed against the aforesaid order  

of  the  Additional  Collector,  Nagpur  before  the High Court  of  

Bombay at  Nagpur  Bench.   During the pendency of  the writ  

petition, it was brought to the notice of the Court that a similar  

eviction  proceeding  was  started  by  the  respondent  against  

another  tenant  Mr.  Lal  Mohd.  which  was  decreed  and  

possession was taken from Lal Mohd. by the respondent and  

the respondent, thereafter, started using the same.  This fact  

was in fact brought to the notice of the High Court and the High  

Court, having found it to be true, again remitted the case back  

to the Additional Collector, Nagpur, for consideration afresh but  

after  the  second  remand,  again  the  order  of  eviction  was  

affirmed in favour of the respondent by the Additional Collector,  

Nagpur.   

9. Against  the  aforesaid  order  of  the  Additional  Collector,  

Nagpur, again a writ petition was moved by the tenant/appellant  

in the High Court of Bombay at Nagpur Bench.  Again, by an  

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order dated 16th of January, 2004, the High Court had partially  

allowed the  writ  petition  and quashed the  order  dated  5th of  

November,  2003  passed  by the  Additional  Collector,  Nagpur  

and directed the Additional  Collector  to  hear  and decide the  

appeal afresh after affording an opportunity of being heard to  

the parties and permitted the respondent to file reply of affidavit  

filed by the appellant.  It was further directed that the appeal  

shall be decided in the light of the law laid down by Bombay  

High  Court  in  Janba  Daulatrao  Borkar  Vs.  Rajesh  Kumar  

Ramjiwan Agarwal   [  1975 MHLJ 746  ].

10. When the matter was remanded again by the High Court,  

the Additional Collector, Nagpur again dismissed the appeal by  

his order dated 22nd of July, 2005.  Feeling aggrieved by this  

order of the Additional Collector, Nagpur, a writ application was  

moved  before  the  High  Court,  which  by  the  impugned  

Judgment  was  dismissed  inter  alia  on  a  finding  that  the  

respondent had successfully proved his bonafide requirement  

of the shop in question and against the said order of the High  

Court,  this instant Special  Leave Petition was filed, which on  

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grant of leave, was heard in presence of the learned counsel  

appearing for the respondent only.    

11. Unfortunately, at the time of hearing, the learned counsel  

appearing for the appellant was not present in Court to argue  

this appeal before us.  Therefore, we were not benefited by the  

argument of the learned counsel for the appellant.  However,  

we have heard the learned counsel for the respondent.  In this  

appeal, in our view, the only question that needs to be decided  

is whether the concurrent findings as affirmed by the High Court  

in the writ application on the bonafide requirement of the suit  

premises by the respondent was duly proved or not.  From the  

record, it appears to us that the appellant sought to argue that  

the bonafide need of the respondent of the shop in question  

was  non-existent  inasmuch  as  during  the  proceedings,  the  

respondent had constructed two shops and the need pleaded  

by the respondent for starting a business for one of his sons,  

who is dead and another son being absconding, could not be  

accepted.   

12. On  the  other  hand,  the  learned  counsel  for  the  

respondent  before  the  High  Court  had  urged  that  since  the  

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landlord/respondent was the best judge of his need and that he  

had produced material  documents on the record that he had  

sufficient  experience  in  Kirana  business  and  that  he  had  

sufficient  funds  to  do  that  business,  the  respondent  had  

discharged the burden of proving that the respondent bonafide  

required the shop in question to start a business of Kirana in  

the  shop  in  question.   Accordingly,  the  learned  counsel  

appearing for the respondent before us argued that in view of  

the concurrent findings of fact arrived at by the Courts below,  

this Court is not in a position to interfere with such concurrent  

finding of fact on the question of requirement of bonafide need  

of the landlord respondent until and unless it is found that the  

findings arrived at were perverse or arbitrary.   

13. Having  perused  the  impugned  Judgment  of  the  High  

Court and the orders of the Additional Collector and the Rent  

Contoller, Nagpur, and after considering the subsequent events  

that had occurred in the eviction proceeding, in which it  was  

brought to the notice of the Court that (1) one of his sons had  

expired (2) Second son had absconded for the last 8-9 years  

and (3) he had constructed two shop rooms where he has been  

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carrying on business of Kirana, no order for eviction could be  

passed without considering the aforesaid aspects of the matter  

which was duly brought to the notice of the Court.   

14. Unfortunately,  in  spite  of  repeated  orders  of  remand  

passed by the High Court as well as admissions made by the  

respondent  in  his  deposition  about  the  fact  stated  in  the  

application for taking into consideration of subsequent events, it  

would not be possible for us to accept the impugned Judgment  

of the  High Court, which had failed to consider the requirement  

of  the respondent  after  the  subsequent  events  had occurred  

namely (1) death of one son of the respondent (2) absconding  

of the second son of the respondent for the last 8-9 years (3)  

two shops having been taken possession of and (4) possession  

was taken from  another tenant Lal Mohd. in which, the third  

son has been running a Leatho Machine Business.

15. In our view, although such admitted facts had not been  

considered by the Courts below, we do not propose to allow the  

appeal in full but remand the case back to the High Court, who  

in turn, would frame issues to the extent whether in view of the  

subsequent  events,  as  stated  herein  earlier,  the  bonafide  

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requirement  of  the  landlord/  respondent  has  already  been  

satisfied or not.   

16. For this purpose, it would be open to the respondent to  

amend  his  pleadings  of  the  eviction  petition  against  which,  

additional objection may also be filed by the tenant/appellant.  

Thereafter, both parties shall be allowed to adduce evidence in  

support of their respective cases and to reach a final finding of  

fact on the question whether the case of bonafide requirement  

of the respondent was duly proved and such findings along with  

records and the evidence to be adduced for this purpose shall  

be  transmitted  back  to  the  High  Court,  who  will,  after  

considering  the  evidence  on  record  and  the  evidence  that  

would be taken after remand along with the findings of the Rent  

Controller,  finally  decide  whether  the  requirement  of  the  

landlord/respondent  was  satisfied  by  the  occurrence  of  

subsequent  events  either  during the pendency of  the appeal  

before  the  Additional  Collector,  Nagpur  or  before  the  High  

Court.   

17. For the reasons aforesaid, we set aside the Judgment of  

the High Court and send the case back to it for decision afresh  

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in  the  light  of  the  observations  and  directions  made  

hereinabove.   

18. The High Court shall direct the Rent Controller, Nagpur to  

complete the proceedings for taking up the matter, as directed,  

within  three months from the date of  supply of  a copy of  its  

order and the High Court, after receiving the records along with  

evidence and documents from the Rent Controller, Nagpur, and  

the findings made thereon, shall decide the same finally within  

three months from the date of receipt of the records from the  

Rent  Controller,  Nagpur,  positively,  without  granting  any  

unnecessary adjournments to either of the parties.   

19. The impugned Judgment  of  the High Court  is  thus  set  

aside and the appeal is allowed to the extent indicated above.  

There will be no order as to costs.  

………………………J. [Tarun Chatterjee]

New Delhi; ………………………J. October 28, 2009. [Aftab Alam]

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