RAM BABU AGARWALversusJAY KISHAN DAS

                        [2009] 14 S.C.R. 1148


A                      RAM BABU AGARWAL
                                   v.
                          JAY KISHAN DAS
                  (Civil Appeal No. 1388 of 2003)
                         OCTOBER 7, 2009
B
           [MARKANDEY KATJU AND ASOK KUMAR
                     GANG ULY, JJ.]

        Madhya Pradesh Accommodation Control Act, 1961:
c
        Suit for eviction of tenant - On grounds of default in
  payment of rent and bonafide need of landlord - Held: High
  Court having recorded a finding of fact that entire rent had
  been deposited by tenant in compliance of its order in revision
  petition , the said finding cannot be interfered with - However,
0
  as regards bona fide need of landlord, High Court's order
  rejecting landlords plea on the ground that his son had no
  experience of the business proposed to be started in the
  premises, cannot be sustained - A person can start a ·new
  business even if he has no experience therein - High Court
E should have gone deeper into the question of bona fide need
  and not rejected it only on the ground that the son of the
  landlord has no experience in foot wear business -
  Judgments of the High Court and trial court on the question
  of bona fide need are set aside and matter remitted to trial
F court only to decide the issue of bona fide need afresh.
       s. 13(6) - Suit for eviction for default in payment of rent -
   High Court rejecting the plea since tenant had deposited rent
  pending revision petition before High Court - Plea that suit
G should be decreed for default committed by tenant after the
  judgment of High Court and during pendency of special leave
  petition/appeal under Article 136 of Constitution before
  Supreme Court - Held: Provisions of s. 13(6) will apply only
  to the statutory appeals under the Act and not to the
H                                 1148
                  RAM BABU AGARWAL v. JAY KISHAN DAS                    1149

"fl
            constitutional remedy under Article 136 of the Constitution - A
            A statutory provision cannot control a constitutional provision
            - An appeal is a creature of the statute and the conditions
            mentioned in s. 13(6) of the Act will apply to the statutory
            appeal and not to the constitutional remedy - Constitution of
            India, 1950 - Article 136.                                      B
                CIVIL APP ELLATE JURISDICTION : Civil Appeal No.
      >--   1388 of 2003.

                From the Judgment & Order dated 23.8.2002 of the High
            Court of Madhya Pradesh, Bench at Gwalior in First Appeal            C'
            No. 224 of 1997.

                 Sushil Kumar Jain, Niraj Sharma, Vikrant Singh Sais,
            Eshita Barua for the Appellant.

                 Anup G. Choudhary, Prashant Kr. Roy, Ashwani Kumar for          D
                                                                     1
            the Respondent.
                 The following Order of the Court was delivered

                                           ORDER                                 E
                 Heard learned counsel for the parties.

  •              This Appeal has been filed against the impugned judgment
            of the High Court of Madhya Pradesh dated 23.8.2002 passed
            in First appeal No. 224 of 1997.                                     F
                  The appellant is the landlord of the premises in question
            and the respondent is a tenant therein. The appellant filed a
            suit for eviction against the tenant on two grounds (i) default in
            payment of rent; (ii) bonafide need.
                                                                                 G
      i:-
                  As regards the first point, the High Court has recorded a
            finding of fact that the entire rent has been deposited by the
            tenant in compliance with the order of the High Court passed
            in a revision petition and hence we cannot interfere with the
                                                                                 H
   1150 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.


A finding of the High Court on that point.                                   ~




        Shri S.K.Jain, learned counsel for the appellant submitted
  that even if the tenant has paid the rent up to the proceedings
  in the High Court, if he has committed default in payment of rent
  after the judgment of the High Court and during the pendency
B
  of the special leave petition/appeal under Article 136 of the
  Constitution of India before this Court, the provisions of Section
  13(6) of the Madhya Pradesh Accommodation Control Act,                --4      I

  1961 (for short 'the Act') will apply and the defence of the tenant
  will have to be struck off. We do not agree. In our opinion, the
c provisions of section 13(6) of the Act will apply only to the
  statutory appeals under the Act and not to the constitutional
  remedy under Article 136 of the Constitution.

       It is well settled that a statutory provision cannot control a
D constitutional   provision. An appeal is a creature of the statute
                                                                         I
  andI the conditions mentioned in Section 13(6) of the Act will
  apply to the statutory appeal and not to the constitutional
  remedy. That is because a constitutional provision is on a
  higher pedestal as compared to a statutory provision. A statute
E cannot control the constitutional provisions. Hence, we reject
  the first submission of Shri S.K.Jain.

        However, as regards the question of bonafide need, we
  find that the main ground for rejecting the landlord's petition for
  eviction was that in the petition the landlord had alleged that
F he required the premises for his son Giriraj who wanted to do
  footwear business in the premises in question. The High Court
  has held that since Giriraj has no experience in the footwear
  business and was only helping his father in the cloth business,
  hence there was no bonafide need. We are of the opinion that
G a person can start a new business even if he has no experience
  in the new business. That does not mean that his claim for
  starting the new business must be rejected on the ground that
  it is a false claim. Many people start new businesses even if
  they do not have experience in the new business, and
H sometimes they are successful in the new business also.
           RAM BABU AGARWAL v. JAY KISHAN DAS                 1151


         Hence, we are of the opinion that the High Court should       A
    have gone deeper into the question of bona fide need and not
    rejected it only on the ground that Giriraj has no experience in
    foot wear business.

         For the reasons given above, we set aside the impugned        B
    judgments of the High Court and the trial Court on the question
    of bona fide· need and remand the matter to the trial Court only
    to decide the issue of bona fide need afresh. Parties may lead
    fresh evidence on their pleadings and the trial Court shall
    decide the matter expeditiously thereafter.
                                                                       c
         The Appeal is allowed on the question of bona fide need
    only to the extent indicated above. No costs.

    R.P.                                          Appeal allowed.
                                                                       D



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