Zenith Drop Forging Ltd. v. Sudesh Lal — 1991 DIGILAW 366 (PAT)

JUDGMENT S.B. Sinha, J. This application is directed against a judgment dated 26.5.1990 passed by Sri M.P. Srivastava, Munsif, Jamshedpur in Eviction Suit no. 125 of 1989 whereby and whereunder the said learned court decreed the suit for eviction filed by the plaintiff-opposite party as against the defendant-petitioner on the ground of her personal necessity. 2. The suit premises is a double-storeyed building. The ground floor consists of one dining-cum-drawing room and three bed rooms besides a kitchen. The first floor which is the suit-premises consists of three bed rooms; one dining-cum-drawing room, one kitchen, and one room at the end of the stair case. 3. The plaintiff-opposite party admittedly purchased the building in-question on 18.7.84 by virtue of registered deed of sale from the original owner thereof. The defendants attorned the plaintiff as its landlord. According to the plaintiff, she approached to defendant through one Sri J.J. Singh who was residing in the suit premises at the relevant time to vacate the same and the plaintiff was assured that the same would be done within two or three years. Allegedly, thereafter, the plaintiff issued a notice dated 24.6.88 as contained in Ext. A/1 requesting it to give a definite time schedule within which the suit premises will be vacated and in the meanwhile requested to vacate the room in the stair-case so that the same may be used by her son as a study. 4. The plaintiff's case is that her husband was a highly placed Administrative Officer and her family is a respectable family having a very high social status. The plaintiff had two sons; one being married and having two daughters and another son is studying. According to the plaintiff, the ground floor consisting of three bed rooms; one is required for herself; one for her son who is studying and one for her son who is married. The plaintiff contended that she requires at least four bed rooms; one Guest room one dining room, a hall, a kitchen, store room, a puja room and a reading room. 5. Before filing the suit the plaintiff issued a notice on 13.9.1988 requesting the defendant to vacate the suit premises on the expiry of 30th September, 1988. 6. The defendant has filed a written statement contending inter alia therein that it came as a tenant in the suit premises in the year 1968 on a monthly rental of Rs. 5. Before filing the suit the plaintiff issued a notice on 13.9.1988 requesting the defendant to vacate the suit premises on the expiry of 30th September, 1988. 6. The defendant has filed a written statement contending inter alia therein that it came as a tenant in the suit premises in the year 1968 on a monthly rental of Rs. 500/-. According to the defendant in the year 1983, the rent was increased to Rs. 1000/- and by reason of letter dated 26.3.1985 (Ext. A), the plaintiff asked it to enhance the rent and the rent was enhanced to Rs. 1500/-. It has, further been contended that when the plaintiff purchased the property, the ground floor was in occupation of the tenant, but, later on, the same was vacated by it and the plaintiff entered into khas possession thereof. It was also alleged that the plaintiff constructed one independent unit consisting of four rooms, two kitchens and two bath rooms measuring an area of 900 sq. feet which would also be enough for further occupation of the garage of the plaintiff. 7. Before the learned court below, both the parties adduced evidence and it came to the conclusion that the plaintiff has been able to prove her bona fide requirement. 8. Mr. M.Y. Eqbal, learned counsel appearing on behalf of the petitioner submitted that from the notice dated 26.3.1985 as contained in Ext. A, it would appear that thereby plaintiff merely asked the defendant to enhance rent and pursuant thereto the rent was enhanced, from Rs. 1000/- to 1500/. Mr. Eqbal has further submitted that plaintiff's letter dated 24.6.1988 (Ext. A/1), it would appear that thereby the defendant was requested to change the monthly tenancy to a periodical tenancy and merely requested the petitioner to vacate one of the rooms in the stair case so that the same may be used by the son of the plaintiff as a study and by another letter dated 28.6.1988 (Ext. A/2), the plaintiff again requested to change the monthly tenancy to a fixed period tenancy and again requested the defendant to enhance the rent and in view of the fact that the defendant refused to do it, the suit was filed. 9. A/2), the plaintiff again requested to change the monthly tenancy to a fixed period tenancy and again requested the defendant to enhance the rent and in view of the fact that the defendant refused to do it, the suit was filed. 9. It was submitted that from the facts aforementioned it would appear that till 26.8.88, the plaintiff did not show any requirement of the suit premises, but when the defendant refused to enhance the rent, suit was instituted after service of notice dated 13.9.1988. 10. Learned counsel further submitted that it has come on records that the plaintiff has constructed a new block and which is now in occupation of one Mr. Pradhan, a tenant on monthly rent of Rs. 1800/- and another unit has been let out to Mr. Disuja. 11. According to the learned counsel, if the premises in-question was bonafide required by the plaintiff, she could have at least temporarily shifted to the newly constructed unit till a decree was passed in respect of the suit premises. 12. Learned counsel further submitted that the very fact that the plaintiff merely required four bed rooms, her requirement would have been satisfied if she was given only one bed room more. Learned counsel in this connection has referred to the evidence of P.W.1. 13. It was further submitted that from a perusal of the evidence of P.W.1, it would appear that in his deposition he stated the state of affairs as then was existing but his evidence although was not disbelieved by 'the Court, no finding in relation thereto has been arrived at. 14. According to the learned counsel, the learned court below has passed the judgment only on the basis of the purported status of the plaintiff without taking into consideration that the same is not a relevant factor. 15. It was further submitted that the judgment of the learned court below is perverse and being contrary to evidence, the same cannot be said to be 'in accordance with law' within the meaning of section 14(8) of the Bihar Buildings Lease, Rent and Eviction Control Act, 1982 and as such is liable to be set aside. 15. It was further submitted that the judgment of the learned court below is perverse and being contrary to evidence, the same cannot be said to be 'in accordance with law' within the meaning of section 14(8) of the Bihar Buildings Lease, Rent and Eviction Control Act, 1982 and as such is liable to be set aside. Reliance has been placed by the learned counsel in Mattulal, appellant v. Radhe Lal Respondent, reported in AIR 1974 SC 1596 ; in M.M. Quasim Appellant v. Manohar Lal Sharma ( AIR 1981 SC 1113 ); in Amarjit Singh v. Smt. Khatoon Quamarain ( AIR 1987 SC 741 ) and in Rai Chand Jain v. Miss Chandra Kant Khosla (1991 Vol. 1 SCC 422). 16. Mr. N.K. Prasad learned counsel appearing on behalf of the plaintiff/opposite party, on the other hand, submitted that the learned court below having considered the evidence on record thoroughly, this Court should not interfere with the finding of fact arrived at by it in exercise of its jurisdiction under Section 14(8) of the Act. 17. Learned counsel submitted that need of a person should be judged keeping in view various factors including the question as to how best the plaintiff can meet her need. According to the learned counsel, absolute need is not the criteria for bringing a suit for eviction on the ground of personal necessity. It was further submitted that while judging the need of a person, his/her status is one of the relevant factors which should be taken into consideration. 18. Learned counsel submitted that admittedly the area of the first floor is bigger than the ground floor and in view of the fact that the ground floor consists of only three bed rooms, opposite party requires another bed room a guest room, a puja room, a study so as to meet her requirement. 19. An application was filed on behalf of the petitioner on 5.11.1990 to the effect that the plaintiff has let out the newly constructed premises praying therein that the factum of letting out of one unit of the newly constructed premises of the plaintiff to one Mr. Pradhan and another unit to one Sri Disuja should be taken into consideration by the court as subsequent event. 20. A counter affidavit has been filed to the said application. Pradhan and another unit to one Sri Disuja should be taken into consideration by the court as subsequent event. 20. A counter affidavit has been filed to the said application. It was stated that even before the trial court, an offer was made to the petitioner to shift to the newly constructed units but he refused to do the same. According to the opposite party, two rooms were let out to Mr. Pradhau in May, 1990 who was a Professor in Labour and Research Institute and has since taken a job at Calcutta and has shifted to Calcutta and has informed the opposite party that the vacant possession will be delivered to them on 16th March, 1991. It was also contended that to far as other two rooms are concerned, the plaintiff has been negotiating to let out to one travel agent, but if the petitioner agrees to shift to the newly constructed rooms the opposite party shall not proceed with the negotiation any further. The opposite party by reason of the aforementioned counter affidavit has again made an offer to the petitioner to shift to the newly constructed unit which consists of four bed rooms, two toilets, besides one store and kitchen and it was stated that said space should be sufficient for Mr. J.J. Singh who is now in the occupation of the premises on behalf of the Company as his family consists of mother, wife, one son and one brother. 21. In the said counter affidavit, it was stated :- "that this opposite party states that the portion in her occupation is totally insufficient to satisfy her needs. It is stated at the cost of repetition that there are altogether three bed rooms in the occupation of this opposite party. One is occupied by her, the other is occupied by the deponent (son of the opposite party) and his wife and the third room has to be shared by three persons viz. the second son of the opposite party viz Gaurav (19 years) and two daughters of the deponent. Further whenever guests visit the second son and the grand-daughters of this opposite party have to vacate and sleep in the drawing room. It is stated that, guests visit and stay for almost one week in-each month. the second son of the opposite party viz Gaurav (19 years) and two daughters of the deponent. Further whenever guests visit the second son and the grand-daughters of this opposite party have to vacate and sleep in the drawing room. It is stated that, guests visit and stay for almost one week in-each month. That thus the opposite party requires at least two more bed rooms besides one guest room, one study room and one puja room." 22. The petitioner has filed a rejoinder to the said counter affidavit that the family of Mr. Pradhan had not vacated the premises up to 17th March, 1991. It has been reiterated that the plaintiff's requirement was not bonafide and the plaintiff constructed two units for letting them out and not for the purpose of occupying the same herself. 23. The petitioner has also denied the other allegations made in the said counter affidavit. It was further submitted that the space available in the ground floor is about 3000 sq. feet and as such the plaintiff does not require any additional accommodation. 24. Before proceeding further, it may be mentioned that Mr. N.K. Prasad has reiterated the offer that the petitioner may occupy one of the two newly constructed units. He further submitted that although the petitioner had been getting sum of 1800/- per month from Mr. Pradhan, but she would allow the defendant/petitioner to occupy the same premises for a sum of Rs. 1500/-. Mr. Prasad further submitted that till the premises is not vacated by Mr. Pradhan, the defendant may occupy the first floor. 25. Mr. Prasad further submitted that if at any point of time the plaintiff after obtaining the vacant possession of the suit premises let it out to any other person, the defendant would be given the first offer to occupy the same. 26. In Jaiprakash Jalan v. M/s. Rambilash Madan Gopal in C.R. 5 and 6 of 1990(R) reported in 1991 (2) PLJR page 224, disposed of on 21st February, 1991, a Division Bench of this Court, of which I was a member, took into consideration various decisions of this Court as also of the Supreme Court and held :- "In terms of section 11 (1) (c) of the said Act, a mandate has been imposed upon the court to satisfy itself that the building is reasonably and in good faith required. Such a determination is possible when the Court takes into consideration the facts pleaded by the parties and the evidences brought on records. The court while arriving at a decision is also required to consider that the building is reasonably and in good faith required by the landlord or not. ...Bonafide means in good faith and genuinely. Bonafide need must be a genuine need for the landlord to occupy the premises. It is not enough that he really means to occupy it; it must be necessary for him to occupy and such necessity must be genuine one. The expression 'reasonably required' is also relevant and, thus, the same has to be judged according to the dictates of reason and not on any capricious view or on sentiment. While judging the reasonable requirement of the plaintiff, his status, nature of work or vocation, status of his health and other similar factors would be relevant considerations. It must also be borne in mind that in the proviso to section 11 (1) (c) the Legislature, in its wisdom has chosen to qualify the word 'satisfy' by the expression 'substantially'. The same has evidently been done with a view to keep the interest of the tenant protected by providing occupation to him of the building in part and granting to the landlord occupation to meet his requirement." 27. In Mattulal v. Radhe Lal reported in AIR 1974 S.C. 1596 , it has been held that it is for the court to determine the truth of the assertion with regard to the requirement of the landlord and also whether the same is bonafide. The Supreme Court held :- "The test which has to be applied is an objective test and not a subjective one. The word 'required' signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show the burden being upon him that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business." 28. In M.M. Quasim v. Manohar Lal Sharma and others in AIR 1981 Supreme Court 1113, the Supreme Court held :- "Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re enter. In M.M. Quasim v. Manohar Lal Sharma and others in AIR 1981 Supreme Court 1113, the Supreme Court held :- "Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re enter. One such ground is of personal requirement of landlord. When examining a case of personal requirement if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison detre of the Rent Act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord's claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he required the premises in respect of which the action is commenced in the Court." 29. The Supreme Court in that decision was considering the provisions of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947. However, it may be mentioned that under the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, Explanation II to section 11(1) (c) reads to follows :- "Where there are two or more premises let out by the landlord, it will be for the landlord to choose which one would be preferable to him and the tenant or tenants shall not be allowed to question such preference." There cannot, however, be any doubt that explanation cannot over-ride the main provision. The provisions contained in the explanation can be taken recourse to only if the landlord proves his bonafide requirement. 30. In Amarjit Singh v. Smt. Khatoon Quamarain reported in AIR 1987 Supreme Court 741, it has been held :- "If the landlady or the landlord could have reasonable accommodation after his or her need arose and she by her own conduct disentitled herself to that property by letting it out for higher income, she would be disentitled to evict her tenant on ground of her need. The philosophy and principle of rent restriction law have nothing to do with the private exploitation of property by the owners of the property in derogation of the tenant's need of protection from eviction in a society of shortage of accommodation." 31. In Rai Chand Jain v. Miss Chandrakanta Khosla reported in (1991) 1 Supreme Court Cases 422, the Supreme Court has held that the revisional jurisdiction of the High Court under section 15 (5) of the E.P. Urban Rent Restriction Act, 1949 is much wider than that under Section 115 of the Code of Civil Procedure. It was held that the High Court while exercising its jurisdiction is competent not only to see the irregular or illegal exercise of jurisdiction but also to see to the legality or propriety of the order in question and in appropriate cases, to examine the correctness of the findings of facts also, though the revisional court is not a 'second court of first appeal'. 32. The position in law, as stated hereinbefore, is neither in doubt nor in dispute. The question, therefore, as to whether the plaintiff has been able to prove her bonafide requirement, is essentially a question of fact and has to be considered on the basis of the materials on record. 33. In this view of the matter, the materials brought on records of this case have to be noticed. 34. P.W.1 Rajiv Lal is the son of the plaintiff. He stated that he hails from a respectable family. He is married and has two children. His brother is a student of Loyola School and his mother is an Administrative Officer of Usha Alloys Steels. He has further stated that in his house, his brother-in-law, mother-in-law, father-in-law, maternal uncle normally come to visit them. With regard to the recently constructed house, he stated that some out house has been constructed for the servants which are not fit to be occupied by his family members. According to this witness, one bed room is in occupation of him and his wife. He stated that his in-laws' place is at Rourkela who are businessmen. According to him, somebody from his in-laws' place come to his place once in every 2/3 months. His uncle who is resident of Chandigarh also comes once in a year. So far as his maternal uncle is concerned, he is a resident of Jamshedpur itself. He stated that his in-laws' place is at Rourkela who are businessmen. According to him, somebody from his in-laws' place come to his place once in every 2/3 months. His uncle who is resident of Chandigarh also comes once in a year. So far as his maternal uncle is concerned, he is a resident of Jamshedpur itself. He further stated that they do not have any puja room. He admitted that one house has been constructed by them at the back of the suit premises. 35. The plaintiff did not examine herself. The defendant petitioner examined Jogendra Jeet Singh who lives in the suit premises in the capacity of the General Manager of the defendant company. This witness admitted that when the plaintiff purchased the entire house, the ground floor was also occupied by a tenant who later on vacated the same. 36. This witness admitted that the plaintiff has a married son who has two young children and another son namely Gaurav who is a student of Loyola School. In paragraph 9 of his deposition he has admitted that the relations of the plaintiff, although not very frequently, but some times come to stay. This witness has further stated that the plaintiff has constructed a house during the pendency of the suit consisting of four rooms, two kitchen, two latrines and a bathroom and one store room covering floor area of 1000 sq. feet. He stated that the portion in his occupation is more than the additional construction which has been made by the plaintiff. He stated that he is not ready to occupy the new house. He has given the details of the space in his occupation, and according to him, the space available with him is the same which is in occupation of the plaintiff. He has also a garage. 37. Apart from the aforementioned oral evidence, the learned counsel for the parties has also drawn my attention to the documentary evidences, which have been brought on record. Ext. 1 is a copy of notice dated 13.9.1988 of the lawyer of the plaintiff. Ext. 1 is not very relevant as, thereby, the defendant was merely called upon to vacate the suit premises. Ext. 3 is a letter to the plaintiff dated 8th August 1988. Ext. 1 is a copy of notice dated 13.9.1988 of the lawyer of the plaintiff. Ext. 1 is not very relevant as, thereby, the defendant was merely called upon to vacate the suit premises. Ext. 3 is a letter to the plaintiff dated 8th August 1988. In that letter, it was stated as follows :- "Kindly refer to my letter dated 26.2.1985 and subsequent discussions on the subject between the undersigned and your Sri J.J. Singh and Sri K. Sood on various occasions. I am sorry to state that inspite of my repeated reminders and requests you have not cared to :- (i) revise the monthly rent of premises. (ii) execute fresh lease of the premises since my purchase of the premises on 8.7.1984 specifying the revised terms including the period of the tenancy. I have amply made it clear that the premises have been purchased by me and I need the full premises for use as my and my family's residence and we are feeling greatly inconvenient on account of the shortage of the balance accommodation in the premises under our occupation, but keeping in view the good reputation enjoyed by your company and the friendly and cordial relations with your Sri J.J. Singh who is occupying the portion of the premises under your tenancy, I had agreed to continue your tenancy arrangements for the time being on Sri J.J. Singh's assurances as also that he will arrange to vacate the premise., within a period of 2 to 3 years on making alternate arrangements. Though more than 4 years have since passed but no efforts seem to have been made in this respect from your side." 38. Mr. Eqbal, learned counsel appearing for the petitioner submitted that Ext. 3 was issued at a point of time when the suit was about to be instituted and, thus, no credence can be placed thereupon. Mr. Eqbal, also brought to my notice the other letters issued by the plaintiff to the defendant company. 39. According to Mr. Eqbal, from a perusal of the earlier letters, namely, letters dated 26th March, 1985 (Ext. A); 24.6 88 (Eat. A/1) and 28.6.88 (Ext. A/2), it appears that the plaintiff never stated that she required the suit premises and it appears that Ext. A request was made to increase the rent with cumulative effect @ Rs. 39. According to Mr. Eqbal, from a perusal of the earlier letters, namely, letters dated 26th March, 1985 (Ext. A); 24.6 88 (Eat. A/1) and 28.6.88 (Ext. A/2), it appears that the plaintiff never stated that she required the suit premises and it appears that Ext. A request was made to increase the rent with cumulative effect @ Rs. 175/- per month till the rental of the house comes to Rs. 2000/- and with regard to the alleged use of Sri J.J. Singh of the open top terrace purporting to be in breach of the terms of the lease, it is stated that the said terrace did not form part of the lease. 40. Mr. Eqbal, therefore, contended that the story of the plaintiff as made out in the plaint to the effect that the entire house was purchased for the occupation of the plaintiff must be held to be false inasmuch as from the very beginning, the plaintiff had been insisting for payment of higher rent. 41. From Ext. A/1 which is a letter dated 24.6.1988, it appears that request was made by the plaintiff to the defendant to vacate the stair case room which was required only for the purpose of study of the second son. In that letter, the defendant further requested to enter into a fresh agreement as also to suitably increase the monthly rent. 42. From the letter dated 28.6.1988 (Ext. A/2) addressed to Sri J.J. Singh, it appears that a request had been made for a sitting amongst one Mr. K. Sood, himself and the plaintiff to discuss regarding the following points :- 1. Making a lease of the rented portion of first floor for a period mutually agreed upon. 2. Release of the stair case room urgently. 3. Nominal increase in monthly rent observing the steep increase in the market rates as agreed upon." 43. Mr. N.K. Prasad submitted that Ext. A/1 and A/2 has to be read in the context of Ext. 3, wherein it had specifically been mentioned that a fresh lease was required to be entered into for a fixed period so that on the expiry thereof, the defendant may vacate the premises. According to Mr. N.K. Prasad, it became necessary as the defendant expressed his inability to vacate the premises immediately. 44. Learned counsel, therefore, submitted that from a perusal of Ext. According to Mr. N.K. Prasad, it became necessary as the defendant expressed his inability to vacate the premises immediately. 44. Learned counsel, therefore, submitted that from a perusal of Ext. 3, it would be evident that the plaintiff had all along been insisting upon the defendant to vacate the suit premises as early as possible, so that she may occupy the same. 45. A case of personal necessity has to be judged on the basis of the broad facts brought on the records. 46. The conduct of the parties is also relevant. Unfortunately, the learned court below has not taken into consideration the conduct of the parties which becomes evident from the documentary evidences brought on records. Learned court below failed to take into consideration that prior to issuance of Ext. 3, the plaintiff never asked the defendant to vacate the entire suit premises. She had all along been insisting upon the defendant to vacate only one of the rooms for the purpose of being used as study room. 47. Learned court below also did not consider Ext. 3 in its proper perspective inasmuch as the said letter was issued on 8th August, 1980• 48. Learned court below unfortunately has also not taken into consideration the oral evidences of the parties together with documentary evidence brought on records. 49. The learned court below further does not appear to have taken into consideration the fact that the plaintiff in his evidence stated falsely that the new block was really meant to be occupied by the servants. It now stands admitted that the plaintiff has let out two units which were constructed after the purchase of the house in question by the plaintiff. 50. It is true that status of a person is a relevant factor. But that does not mean that although the plaintiff does not require the entire suit premises as she had merely pleaded that another bed room and a study room would serve her purposes the suit is to be decreed in its entirety. The learned court below failed to take into consideration the case from that angle. 51. Learned court below further failed to take into consideration as to whether, the plaintiff could have constructed the new units in such a manner so that she could use it along with portion of the house in her occupation so as to fulfil her need. 52. 51. Learned court below further failed to take into consideration as to whether, the plaintiff could have constructed the new units in such a manner so that she could use it along with portion of the house in her occupation so as to fulfil her need. 52. In view of the fact that the plaintiff herself has constructed two more units, it does not lie in her mouth now to say that the same is not befitting her status particularly in view of the subsequent events that have come on records that persons of high status had been occupying the said newly constructed premises on a monthly rental of Rs. 1800/- 53. It appears that the learned court below has enumerated the evidence but have not analysed the same with reference to the respective cases of the parties. Learned court below, in my opinion, was also not justified in holding that J.J. Singh was not competent to represent the defendant petitioner. 54. In this situation in my opinion, as the learned court below has failed to analyse the evidences on their proper perspective, I have no other option but to set aside the impugned Judgment and decree and remand the matter to the court below for a fresh decision in accordance with law. The learned court below shall consider the alleged necessity of the plaintiff in the light of all the evidences which are on record as also the subsequent events which have been brought on records of this case and for that purpose liberty should be given to the parties to bring on records additional evidences. 55. It does not appear that the plaintiff has also been able to prove that visits of her guests in her house are so frequent that she requires a separate guest room for the purpose. 56. Learned court below may, if it thinks fit, appoint also a Pleader Commissioner for the purpose of finding out as to whether the new unit constructed by the plaintiff could be used by her with slight modifications together with the ground floor of the suit house as one unit. The learned court below may also consider the desirability of considering as to whether the requirement of the plaintiff will be substantially met if the plaintiff occupies the first floor and the defendant is allowed to occupy the ground floor. 57. The learned court below may also consider the desirability of considering as to whether the requirement of the plaintiff will be substantially met if the plaintiff occupies the first floor and the defendant is allowed to occupy the ground floor. 57. In the result, this application is allowed, the judgment dated 20.5.1990 is set aside and the matter is remanded to the learned court below for a fresh decision in accordance with law. The learned court below shall apply his own independent mind to the materials brought on records and shall not in any way be prejudiced by the observations made hereinbefore which have been made only for the purpose of disposal of this case. There will be no order as to costs.