Supreme Court of India
DINESH KUMARversusYUSUF ALI
- Citation
- 2010 INSC 332
- Decided
- 26 May 2010
- Disposal
- Disposed off
- Bench
- B S CHAUHAN
Holding
A second appeal under CPC s.100 is maintainable only on a substantial question of law, but may be entertained if the lower courts' factual findings are perverse; here the High Court's findings were not perverse, yet it failed to consider the business magnitude, leading to a partial eviction order.
Summary
The respondent landlord, owner of a 152 sq.ft. shop, leased it to the appellant tenant from 1978 and periodically raised the rent, later filing an eviction suit under M.P. Accommodation Control Act, 1961 s.12(1)(f) claiming a bona‑fide need to use the premises for his own business, which he was conducting in a tiny 3 ft. × 4 ft. 'Gumti' on a Nalla. The trial court granted eviction; the first appellate court set aside the order, holding the landlord's claim was a pretext to increase rent; the High Court allowed the second appeal, reinstating eviction. The Supreme Court examined whether a second appeal under CPC s.100 is maintainable when the dispute concerns the landlord's bona‑fide need and whether the High Court could re‑appreciate evidence if findings are perverse. It held that a second appeal is maintainable only on a substantial question of law, but may be entertained if the lower courts' findings are perverse; in this case the High Court's findings were not perverse but it failed to consider the magnitude of the landlord's business. Consequently, the Court allowed the appeal in part, directing that the landlord recover possession of half of the premises, balancing the interests of both parties.
Issues considered
- The maintainability of a second appeal under CPC s.100 when the dispute involves the landlord's claim of bona‑fide need.
- Whether the landlord's asserted need is genuine or a pretext for rent increase and eviction.
- Whether a High Court may re‑appreciate evidence and set aside findings of fact as perverse in a second appeal.
- Whether partial eviction (possession of half the premises) is an appropriate remedy.
Legislation cited
- Code of Civil Procedure, 1908s. 100
- M.P. Accommodation Control Act, 1961s. 12(1)(f)
Subjects
evictionbona fide needsecond appealSection 100 CPCM.P. Accommodation Control Actlandlord‑tenantperverse findingspartial possessionrent increase
Judgment
[2010] 7 S.CR. 222
A DINESH KUMAR
v.
YUSUF ALI
(Civil Appeal No. 4244 of 2006)
MAY 26, 2010
B
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.)
M.P. Accommodation Control Act, 1961 - s. 12(1)(f) -
Bonafide requirement for non-residential purpose - Suit for
C eviction - Allowed by trial court - Set aside by first appellate
court - In second appeal, order of eviction upheld by High
Court holding that the findings recorded by first appellate court
perverse - On appeal, held: Landlord is the best judge of his
need, however, it should be real, genuine and need may not
1 D · be a pretext to evict tenant only for increasing rent - High
· Court can entertain second appeal and re-appreciate
evidence, if finding of fact recorded by court below is found
to be perverse - On facts, order of High Court justified but it
did not consider as to what would be the magnitude of
E business - In the interest of justice, landlord to recover
possession of half of the area of the premises - Code of Civil
Procedure, 1908 - s. 100.
Code of Civil Procedure, 1908 - s. 100 - Second appeal
- Maintainability of - Held: Is maintainable on a substantial
F question of law and not on facts - However, if court comes to
the conclusion that evidence recorded by courts below are
perverse, appeal can be entertained, and it is permissible for
the court to re-appreciate the evidence.
G The respondent-landlord owned a shop measuring
152 sq.ft. It was situated at a main road in the market. In
year 1978, the respondent let out the said premises to the
appellant-tenant for a non-residential purpose on a
monthly rent of Rs.150/-. The rent was enhanced from
H 222
DINESH KUMAR v. YUSUF ALI 223
time to time. The respondent took certain loan from the A
appellant and part of it was to be adjusted towards the
monthly rent. Thereafter, the respondent-landlord filed a
suit for eviction against the appellant on the grounds of
nuisance and bone fide requirement for himself. He
submitted that he was carrying his business in a rented s
'Gumti' measuring 3 .ft. x 4 ft. at a monthly rent of Rs. 75/
-; and that the said 'Gumti' is situated on the Nalla in
Cantonment Board establishe~ by encroaching upon the
public !and. The trial court a.llowed the suit for eviction
under section 12(1 )(f) of M.P. Accommodation Control c
Act, 1961 on the ground of bona fide need. The first
appellate court set aside the order. The respondent filed
a second appeal. The High Court allowed the same.
Hence the appeal.
Disposing of the appeal, the Court D
HELD: 1.1. The 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 E
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.
There may be a question, which may be a "question of
fact", "question of law", "mixed question of fact and law" F
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. [Paras 12 and 14) [231-F-G; 232-B]
1.2. The Second Appeal u/s. 100 CPC is maintainable G
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
H
224 SUPREME COURT REPORTS [2010] 7 S.C.R.
A 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.
B [Para 25] (235-C-D]
Ram Prasad Rajak Vs. Nand Kumar & Bros. & Anr. AIR
1998 SC 2730; Gadakh Yashwantrao Kankarrao Vs. E. V.
alias Balasaheb Vikhe Patil & ors. AIR 1994 SC 678;
Reserve Bank of India & Anr. Vs. Ramakrishna Govind Morey
C AIR 1976 SC 830.; Ku/want Kaur & Ors. Vs. Gurdial Singh
Mann (dead) by L.Rs. & Ors. AIR 2001 SC 1273; Sheet
Chand Vs. Prakash Chand AIR 1998 SC 3063; Rajappa
Hanamantha Ranoji Vs. Mahadev Channabasappa & Ors.
AIR 2000 SC 2108; Jai Singh Vs. Shakuntala AIR 2002 SC
D 1428; P. Chandrasekharan & Ors. Vs. S. Kanakarajan & Ors.
AIR 2007 SC 2306; Shakuntala Chandrakant Shreshti Vs.
Prabhakar Maruti Garvali & Anr. AIR 2007 SC 248; Anathula
Sudhakar Vs. P. Buchi Reddy (Dead) by LRs & Ors. AIR 2008
SC 2033; Rishi Kumar Govil Vs. Maqsoodan and Ors. (2007)
E 4 SCC 465; 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; Molar Mal Through Lr. Vs. M/s. Kay
F Iron Works Pvt. Ltd. AIR 2000 SC 1261; Prativa Devi Vs. T. V.
Krishnan (1996) 5 SCC 353; Ram Dass Vs. /shwar Chander
& Ors. AIR 1988 SC 1422; Rahabhar Productions Pvt. Ltd.
Vs. Rajendra K. Tandon AIR 1998 SC 1639; Shiv Sarup
Gupta Vs. Dr. Mahesh Chand Gupta AIR 1999 SC 2507;
G Malpe Vishwanath Acharya & Ors. Vs. State of Maharashtra
& Anr. AIR 1998 SC 602; and Siddalingamma & Ant. Vs.
Mamtha Shenoy AIR 2001 SC 2896, relied on.
Jurisprudence by Salmond 12th Edn. p 69 - referred
to.
H
DINESH KUMAR v. YUSUF ALI 225
2.1. In the instant case, the trial court after A
considering the evidence on record including _increase in
rent from time to time and the fact that after evicting s~
_doctor, in 1978, the landlord inspite of starting his
business in the suit premises rented it out to the
appellant, came to the conclusion that need of the B
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 c
in rent of the suit premises after 1995. ~he said findings
were disturbed by the first appellate court mainly on the
ground that the landlord did not require the suit premises
for runnrng his business, rather it was a pretext to
increase the rent as rent had been increased from time 0
to time and the landlord did not occupy the premises
after being vacated by S-doctor. 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 E
was no evidence to show that his son was interested to
come back and join his father in business. [Para 28] [236-
B-F]
2.2. The Hrgh Court reached the conclusion that. the
landlord, inspite of the fact that he was owner of the suit F
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. [Para 29]
~6-0J G
2.3. The admitted facts 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 .a_t a 'Gumti' measuring 3 ft. x 4 ft.
made on a platform on a Nalla in Cantonment Board H
226 SUPREME COURT REPORTS [2010) 7 S.C.R.
A 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 S-
doctor from the suit premises, the landlord did not start
his business in the said premises but the incidence
B 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
c institution of suit may not be relevant for consideration
at all. 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 ·
0
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
E prior to the date of institution of the suit. Undoubtedly,
the son of the landlord is continuing his service abroad
for last several years and he did not appear in witness
box to prove that he was willing to start business with
his father, remains immaterial or cannot put balance in
F 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 wants to join his business or not. [Para 30] [236-H;
237-A-F]
G
2.4. In the factual situation, no fault is found 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. However, in the facts and
H circumstances of the case, the High Court did not
DINESH KUMAR v. YUSUF ALI 22·7
consider as what would be the magnitude of his A
business, and whether partial eviction of the appellant
could serve the purpose of both the parties. In order to
meet the ends of justice, the landlord/respondent should
recover possession of half of the area of the premises.
[Paras 31, 32 and ~3] [237-G-H; 238-A-B] B
Case Law Reference:
(1996) 5 sec 353 . Relied on. Para 8
AIR 1988 SC 1422 Retied on. Para 9
c
AIR 1998 SC 1639 Relied on. Para 9
AIR 1999 SC 2507 Relied on. Para 9
AIR 1998 SC 602 Relied on. Para 10
AIR 2001 SC 2896 Relied on. Para 11 D
AIR 1998 SC 2730 Relied on. Para 13
AIR 1994 SC 678 Relied on. Para 14
AIR 1976 SC 830 Relied on. Para 15
E
AIR 2001 SC 1273 Relied on. Para 16
AIR 1998 SC 3063 Relied on. Para 17
AIR 2000 SC 2108 Relied on. Para 18
F
AIR 2002 SC 1428 Relied on. Para 19
AIR 2007 SC 2306 Relied on. Para 20
AIR 2007 SC 248 Relied on. Para 21
AIR 2008 SC 2033 Relied on. Para 22 G
(2001) 4 sec 465 Relied on. Para 23
AIR 1992 SC 1604 Relied on. Para 24
(1996) s sec 353 Relied on. Para 24
H
228 SUPREME COURT REPORTS [2010] 7 S.C.R.
A (1998) 6 sec 423 · Relied on. Para 24
AIR 2000 SC 534 Relied on. Para 24
AIR 2000 SC 1261 Relied on. Para 24
B CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4244 of 2006.
From the Judgment & Order dated 25.01.2006 of the High
Court of Madhya Pradesh Bench at Indore in Second Appeal
No. 726 of 2003.
c
Manish Vashisht, Sameer Vashisht, Sanjay Saini, Aashita
Yadav, Ashok Mathur, S.K. Verma for the Appellant.
A.K. Chitale, Niraj Sharma, Sumit Kumar Sharma, Vikrant
Singh Bais for the Respondent.
0
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This appeal has been
preferred against the judgment and order of the High Court of
E 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
F 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-
G 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
H
DINESH KUMAR v. YUSUF ALI 229
[DR. B.S. CHAUHAN, J.]
Rs.35,000/- as loan from the appellant-tenant. Some amount A
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' B
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 c
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 D
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 E
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 Proced~re, which has been F
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 G
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 H
230 SUPREME COURT REPORTS [2010] 7 S.C.R.
A 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
8
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
C 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.
D 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
E 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. /shwar 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
F 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
G rendered illusory or whittled down. The tenant cannot be evicted
on a false plea of requirement or "feigned requirement". (See
also Rahabhqr Productions Pvt. Ltd. Vs. Rajendra K Tandon
AIR 1998 SC 1639; and Shiv Sarup Gupta Vs. Dr. Mahesh
Chand Gupta AIR 1999 SC 2507).
H
. · DINESH KUMAR v. YUSUF ALI 231
[DR. B.S. CHAUHAN, J.]
10. In Malpe Vishwanath Acharya & Ors. Vs. State of A
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." a
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 C
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 D
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 circum.stances E
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 F
erroneous findings of facts based on appreciation of the
relevant evidence. The High Court should not entertain a second
appeal unless it ~aises a substantial question of law. It is the
obligation on the 'Court of Law to further the clear intendment
1
of the Legislature and not to frustrate it by ignoring the same. G
'
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 H
232 SUPREME COURT REPORTS (2010] 7 S.C.R.
A 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 "questioo
of fact.", "question of law", "mixed question of fact and law" and
"substantial question of law." Question means anything inquired;
8
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
C 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."
0 (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
E 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.
F 16. In Ku/want 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
G 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 Sheet Chand Vs. Prakash Chand, AIR 1998 SC
3063, this Court held that question of re-appreciation of
H evidence and framing the substantial question as to whether
DINESH KUMAR v. YUSUF ALI 233
[DR. B.S. CHAUHAN, J.]
I.
the findings relating to factual matrix by the court below could A
vitiate due to irrelevant consideratio11,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 8
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 fi11dings recorded by the court below were perverse.
19. In Jai Singh Vs. Shakuntala, AIR 2002 SC 1428, this C
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 o
totally prohibited in t~e 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 E
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
F
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 G
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 H
234 SUPREME COURT·REPORTS (2010) 7 S.C.R.
A 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 Shakunta/a Chandrakant Shreshti Vs. Prabhakar
Maruti Garvali & Anr., AIR 2007 SC 248, this Court considered
8
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
c 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
D examination of evidence, which may not require any fresh,
investigation of fact. A question of law would, however,
arise when the fif'!ding is perverse in the sense that no
legal evidence was bfought on record or jurisdictional facts
were not brought on record." ·
E
22. Similar view has been reiterated by this Court in
Anathu/a Sudhakar Vs. P. Buchi Reddy (Dead) by LRs & Ors.
AIR 2008 SC 2033.
23. In Rishi, Kumar Govil Vs. Maqsoodan and Ors.
F [(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 EvicfioR} Act, 1972 andRule 16 of the U. P.
Urban Buildings (Regulation -of Letting, Rent and Eviction)
Rules, 1972, held that the bona fide personal need of the
G 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
H findings of the courts below were vitiated by non-consideration
DINESH KUMAR v: YUSUF All 235
[DR. B.S. CHAUHAN, J.]
of relevant evidence or by showing erroneous approach to the A
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. Mis. B
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. C
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 evideAce. The landlord is the best Judge
of his need, however, it should be real, genuine and the need D
may not be a pretext to evict the tenant onJy for increasing the
rent.
.. 26. The instant case is required to be examined in the light
of...ihe aforesaid settled legal propositions. E
27. The admitted facts of the case are that the suit
property, 18 ft. x 14 ft. i.e. 152 Sq.ft., ~s situated at a main road
in the market. T-he premises in which theiandlord is running his
business is 3 ft. x 4 ft. at a-monthly rent of Rs. 757-. The 'Bumti' F
is situated on the Nalla on the land of Cantoflment 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 G
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 H
236 SUPREME COURT REPORTS [2010] 7 S.C.R.
A loan of Hs.35,000/- from the tenant and a part of it was to be
adjusted toward the monthly ref')t 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
8
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
C 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
D 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
E 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
F 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
G 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
H measuring 152 sq.ft. for the last 32 years. The landlord-
DINESH KUMAR v. YUSUF ALI 237
[DR. B.S. CHAUHAN, J.]
respondent is running his business at a 'Gumti' measuring 3 A
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 lanplord 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 B
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 c
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 D
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 E
to the date of institution of the suit. Undoubtedly, Zulfikar Ali,
son of the landlord is continuing his service in Dubai for last r
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 F
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 G
reaching the conclusion that finding recorded by the First
Appellate Court were perverse.
32. However, in the facts and circumstances·uf the case,
the High Court did not consider the relevant factors i.e. as what H
238 SUPREME COURT REPORTS [2010] 7 S.C.R.
A would be the magnitude of his business. and whether partial
eviction of the appellant could serve the purpose of both the
parties.
3~1. Thus, in order to meet the ends of justice the appeal
is allowed partly. The landlord/respondent shall recover
8
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.
N.J. Appeal disposed of.
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