DILBAGRAI PUNJABIversusSHARAD CHANDRA

A                          DILBAGRAI PUNJABI
                                  v.
                           SHARAD CHANDRA

                               AUGUST 8, 1988

B        [R.S. PATHAK, CJ & LAUT MOHAN SHARMA, J.]

          Civil Procedure Code: Section JOO-Appeal-Subordinate courts
    refuse to consider evidence having direct bearing on disputed issue-
    Error arising gives birth to a substantial question df law-Whether High
    Court has jurisdiction to set aside finding.
G
          Madhya Pradesh Accommodation Control Act, 1961: .Section
    12( l)(f)-Suit for eviction of tenant for personal necessity-Esssential
    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.
D
         ·The respondent-plaintiff filed a suit under s. 12(1)(0 of the
    Madhya Pradesh Accommodation Control Act, 1961, for eviction of the
    appellant-tenant, on the ground of personal necessity. The trial court
    rejected the plaintiff's claim that he· was the owner of the house in
    question.
E
          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
F   suit.

          In the appeal to this Court, on behalf of the t~naiit it was con-
    tended 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
G   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
H   lower appellate court decides an issue of fact, a substantial question of
                                        276
                   DILBAGRAI v. SHARAD CHANDRA                         277

law arises, even though the High Court, while hearing the appeal under
                                                                              A
s. 100 of the Code of Civil Procedure, has nojurisdiction to re-appraise
the evidence and reverse the conclusion reached by the first appellate
cmirt.[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 (0 <>f s. 12(1) of
the Madhya Pradesh Accommodation Control Act, 1961, and compari-
son tnereof with that fo the other clauses clearly indicates that it is       c
essential for the plaintiff who claims that he requires the shop person-
ally for starting. a business, to establish that he is the owner of the
premises. l278G-liJ

      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
Cjvil Judge, who tried the suit as well as the Additional District Judge,
confirming the decision of the trial court, had .§eriously' erred in not
considering the entire evidence on record including the reply to the          E
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; 2sOA]
                                                                              F
     CIVIL APPELLATE JURISDICTION: 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.
                                                                              G
      S.N. Kacker, San jay Sareen and S.K. Gambhi.r for the Appellant.

      S.K. Jain fort.he Respondent:

      The Judgment of the Court was delivered by
                                                                              H
    278         SUPREME COURT REPORTS               [19881 Supp. 2 S.C.R.

A          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.
B
          2. The case is governedoy the Madhya P.radesh Accommoda-
    tion 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:
c              "12. Restriction on eviction oftenants-(1) Notwithstand-
               ing 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:
D
                     (a)
                                                                          "

                     (f) that the accommodation let for non-residential
                     purposes is required bona fide by the landlord for the
E                    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
F                    occupation in the city or town concerned;

                      (g)
                       ............................................. ·"
          3. The plaintiff claims that he' requires the shop personally for
G   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 t)le 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
H   this condition.
           DILBAGRAI v. SHARAD CHANDRA !SHARMA, J.]                 279

       4. The defendant has been admittedly paying the rent to the A
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 th\' plaintiff's brother Hukum Chand Jain. On this ground the trial·
court rejected the plaintiff's case that the shop belongs to him. On B
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 allot-
ted 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
                                                                          c
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 D
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 E
to assert in the plaint his ownership of the disputed shop. The neces-
sary 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 F
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 appel- G
!ant in which it was stated that the shop in question belongs to him. In
his reply sent through an advocate the appellant, while denying the
other ,statements in the notice, accepted the· plaintiffs title in the
following words:

           "That it is ad~itted that my client is occupying the shop      H
                         \I
                          '

    280          SUPREME COURT REPORTS                 [1988] Supp. 2 S.C.R.

               . situated at Dal Ba.7.ar belonging to your client...... "

           The Jilaintiff also 1'·~~uced counter foil receipts signed by the
     tenant-appellant in which the plaintiff was described as "the owner of
     property". Jt ·was not a case of an isolated single receipt-quite a
B .numb~r 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 doeuments. It is true that the High Court while hearing
     the appeal under s. 100 of the Code of Civil Procedure has no jurisdic-
     tion to re-appraise'the evidence and reverse the conclusion reached by
     the first ·appellate court, but at the same time its power to interfere
C' with the finding cannot be denied if when the lower appellate court
     decides an issue of fact a substantial question oflaw arises. The court is
     under a duty to examine the e'ntire 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
,1,. 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.