JUDGMENT 1. "No light", wrote Milton in Paradise Lost' 'but rather darkness visible". But Courts of justice, determined to secure harmony and spurn antinomy, search "light" in lexicon of law to be able to say "no darkness, but only light visible". In this epicerastic exercise, Courts have to remember that law has to enchisel "flaw" and ensure' 'flow" in doctrinal direction. The inbred question is whether First Appellate Court has done the right thing? 2. The landlord has filed this second appeal under section 100 of the Code of Civil Procedure against the judgment and decree dated 29.09.1994, rendered by III Addl. District Judge, Indore, in Civil Regular Appeal No.4-A/93, thereby dislodging and demolishing the judgment arid decree of eviction, passed under section 12 (1) (e) of the M.P. Accommodation Control Act, 1961 (for short 'the Act'), from the tenanted accommodation comprised of House No.2, Murai Mohalla, Street No.3, Sanyogitaganj, Indore, occupied by the tanant at monthly• rent of Rs. 18/-, by VIII Civil Judge, Class-II, Indore, in C.O.S. No. 357-A/85 on 20.09.1990 and ordering the dismissal of the suit to the extent of relief of eviction. 3. Facts lie in a narrow compass. The original tenant occupied the aforesaid accommodation as tenant. The appellant has a large family of 27 members. He and his wife suffered from ailments. His brother Mahesh Kumar is forced to live in tenanted accommodation. In the face of acute insufficiency of the accommodation, the appellant filed the civil suit for eviction and recovery of rent from 1.1.1982 and mesne profits thereafter. The defendant filed the written-statement of defence and offered his contest. The trial Court framed the issues. The material issue is Issue No.4. Parties led evidence. On evaluation of the evidence, the trial Court found the ground established and passed the decree of eviction under section 12 (1) (e) of the Act and also directed payment of rent/mesne profits from 18.4.1982 instead of 1.1.1982. The defendant filed the first appeal on 6.2.1991. The defendant died during the pendency of first appeal. His Legal Representatives were brought on record. The first appeal hibernated for a long time. As a result of enormous delay, the appellant filed writ petition No. 1506 of 1994 to obtain the direction against the respondents for early disposal of this appeal. By elaborate order dated 16.9.1994 this Court directed The first appellate Court to decide the appeal by 30.9.1994. The first appeal hibernated for a long time. As a result of enormous delay, the appellant filed writ petition No. 1506 of 1994 to obtain the direction against the respondents for early disposal of this appeal. By elaborate order dated 16.9.1994 this Court directed The first appellate Court to decide the appeal by 30.9.1994. The first appellate Court then heard the final arguments on 26.9.1994 and passed the judgment and decree on 29.9.1994. the first appellate Court to decide the appeal by 30.9.1994 to show compliance of the aforesaid direction and allowed the first appeal and vacated the judgment and decree of the trial Court to the extent of eviction form the suit accommodation. Dissatisfied the appellant filed this second appeal 4. By an elaborate order dated 11.10.1994, this second appeal was admitted on the following substantial questions of law: - "(a) Whether appellate Court has misapplied the 'objective test' and misappreciated the 'binding precedents' and has thus erred in law in reversing the decree on irrelevant considerations and whether decisions demonstrate 'flaw in law' as regards reasons on account of non-consideration of entire evidential material, particularly evidence of the respondents? (b) Whether the appellate Court has not appreciated properly the 'expression' "is required bona fide" as contained S.12(1)(e) of the Act and whether its conclusions are vitiated on account of 'perversity' and 'illegality'? (c) Whether Mahesh Kumar, member of the family in terms of section 2(e) of the Act, can be compelled to reside in tenanted premises and whiter landlord can be denied decree in such state of affairs? (d) Whether decree for rent/mesne profits till the date of appellate decision was required to be passed in any case. 5. Shri S.H. Agrawal and Shri Ravi Agrawal, learned counsel for the appellant. Shri B.K. Joshi, learned counsel for the respondents. Shri Joshi filed IA No. 2696/98 stating that one L.R. Laxmanrao refused the letter sent by him and this may lead to inference that counsel is not instructed. The appeal is entertain-able only on substantial questions of law. The appointment is not determined under order III rule 4 (2) of Code. The application is, thus, rejected. Elaborate reasons as contained in the proceeding of date. The counsel for both the sides are heard for final disposal today. 6. The counsel for the appellant submits that there were no material inconsistencies or inaccuracies. The appointment is not determined under order III rule 4 (2) of Code. The application is, thus, rejected. Elaborate reasons as contained in the proceeding of date. The counsel for both the sides are heard for final disposal today. 6. The counsel for the appellant submits that there were no material inconsistencies or inaccuracies. He further submitted that the conclusions of the trial Court were not unsound and perverse. He, therefore, submitted that the first appellate Court lightly interfered with the decree of the trial Court and thus committed an error of law in denying the relief under the law as granted by the trial Court. He thus submits that the judgment and decree of the first appellate Court merit to be mortalised and the judgment and decree passed by the trial Court deserve to be restored. 7. The counsel for the respondents (LRs of the original defendant-tenant), however, supported the judgment and decree passed by the first appellate Court and submits that this appeal may be dismissed. 8. I proceed to examine worth of-rival contentions. But before doing that, right at the threshold, it is apt to emphasize that the first appellate Court cannot and should not lightly interfere with the findings of trial Court. In AIR 1974 SC 405 (Baburao Bagaji Karemore and others v. Govind and others), it is laid down that – "Trial Judge who had the opportunity of observing the demeanour of witnesses while giving evidence should not be lightly interfered with merely because an appellate Court which had not the advantage of seeing and hearing the witnesses can take a different view. Before a finding of fact by a trial Court can be set aside it must be established that the trial Judge's findings were clearly unsound, perverse or have been based on grounds which are unsatisfactory by reasons of material inconsistencies or inaccuracies. " 9. So the question imprimis is whether findings of trial Court are unsound, perverse or unsatisfactory by reasons of material inconsistencies or inaccuracies? This question, for proper answer, takes me to evidential' material. 10. PW 1 Bhaurao proved medical bills (Exs. P/1 to P/5) showing ailments of appellant and his wife Smt. Omwati. PW 2 Susheel proved tenancy of Mahesh Kumar, brother of the appellant. He corroborated PW 3 Mahesh Kumar. PW 4 Dr. This question, for proper answer, takes me to evidential' material. 10. PW 1 Bhaurao proved medical bills (Exs. P/1 to P/5) showing ailments of appellant and his wife Smt. Omwati. PW 2 Susheel proved tenancy of Mahesh Kumar, brother of the appellant. He corroborated PW 3 Mahesh Kumar. PW 4 Dr. Kalyan proved ailments of appellant and his wife and need to occupy ground floor in possession of the tenant. PW 5 Jagdeesh Prasad (appellant) deposed about bona fide need in pressing shape. 11. The defendant Balwantrao (DW 1) examined himself in rebuttal. Contrary to pleadings of desire to enhance rent from Rs. 18/- to Rs. 100/- (Para 4 of written statement), he stated that demand was only for Rs. 20/- from Rs. 18/(Paras 4 and 9). DW 2 Chhotelal is examined to show size of the family of the appellant particularising seven members. 12. The following facts and features are at once visible – (a) The suit house is of the ownership of Hindu undivided family and appellant is Karta receiving rent (Para 1 of Plaint). A co-owner landlord can maintain suit as held in AIR 1976 SC 2335 (Sri Ram Pasricha v. Jagannath and others). That is the finding on Issue No.1. (b) The bona fide need is pleaded in Para 4 of the plaint with particulars about "insufficiency" and need of appellant and his wife to occupy two rooms on ground floor due to insufficient accommodation as in possession, that is remaining portion of the house, and ailments inhibiting use of stair-case and need of brother (PW 3) coparcener, to occupy two rooms on first floor. Written statement contains vague denial. PW 1 to PW 5 are examined to support averments on oath. Exs. P-1 to P-15A are proved. (c) The only plea is about design to enhance rent. This is meretricious in view of contradiction in deposition vis-a-vis written statement as pointed above. (d) DW 1 and DW 2 have given vague statements. (e) The family is quite large and accommodation in possession is not sufficient. (f) Trial Court scrutinised evidence and documented reasons in Paras 8 to 12 (Issue No.4) of the judgment. The first appellate Court reversed the findings on reasons chronicled in Paras 12 to 15. (d) DW 1 and DW 2 have given vague statements. (e) The family is quite large and accommodation in possession is not sufficient. (f) Trial Court scrutinised evidence and documented reasons in Paras 8 to 12 (Issue No.4) of the judgment. The first appellate Court reversed the findings on reasons chronicled in Paras 12 to 15. (g) PW 3 Mahesh Kumar, though coparcener and entitled to occupy, is living in a tenanted accommodation -- House No. 109, Jankinagar Extension, Indore at monthly rent of Rs. 250/- due to insufficiency of accommodation in suit house as against the rent of Rs. 18/- being paid by the tenant. It is an evidence that landlord of Mahesh Kumar has asked' him to vacate the tenanted accommodation occupied by him due to insufficiency of accommodation in the suit house for his occupation. No other accommodation is• available and none is pleaded or proved by defendant. 13. The oppugnation is inutile and 1iltile and "cat is out of bag" when the defendant-tenant (DW 1) virtually dented and destroyed averments in written statement and gave up the fight deposing in Para 9 as under: - ** ;g lgh gS fd esjs ls 100 #- ekgokj fdjk;k ugha ek¡xk x;kA oknksÙkj esa **, ls ,** Hkkx esa fy[kh ckr xyr gSA** ** eS bl ckjs esa dqN ugha crk ldrk fd] oknh dks fuokl dk LFkku vko’;drk ds eku ls de iM+rk gks o mudks esjs fdjk;snkjh ds LFkku dh vko’;drk gksA** This shows that there is no rebuttal of bona fide need. Yet the first appellate Court ignored this and dislodged the conclusion of the trial Court. Now if first appellate Court did not find it fit to place reliance on PW 1 to PW 5 for proof of ground of eviction, more so in the face of aforesaid statement' of DW 1, then what more was required for proof? Manifestly, it has gone wrong. DW 1 also• stated in Para 10 that - **;g lgh gS fd oknh ds cPps ‘kknh yk;d gks x, gS] cM+s gks x, gS rks ‘kknh gksxh ghA** 14. Manifestly, it has gone wrong. DW 1 also• stated in Para 10 that - **;g lgh gS fd oknh ds cPps ‘kknh yk;d gks x, gS] cM+s gks x, gS rks ‘kknh gksxh ghA** 14. It is also difficult to understand as to what is meant by observation, made by first appellate Court, that ''requirement in presenti" is neither pleaded, nor proved (Para 15 of judgment Such an observation is possible only when evidence furnished by PW 1 to PW 5 and aforesaid statement of DW 1 are ignored and no attention is paid to necessity of 'objective test' and no effort is made to apply binding precedents. The conclusion is evidently erroneous which vitiates the reversing verdict. 15. The findings of trial Court are not found to be unsound, perverse or unsatisfactory. There are no inconsistencies or inaccuracies, much less material ones. On the other hand, I find that the first appellate Court is in error in reversing findings on untenable grounds. 'Flaw in law' is obvious. Section 12(1)(e) and section 2 (e) are not properly appreciated. As noted in Para 9 above, this then is the answer in favour of the appellant. 16. Aptly I set this answer because when first appellate Court, obligated to examine evidence minutely and required to adhere to section 3 of the Indian Evidence Act, 1872, upsets findings of trial Court illegally and illogically, then interference in Second Appeal is not only permissible but also desirable. In 1988 (II) MPWN 199 (Dayakrishrw v. M/s. Sher Bidi Agency), this Court restored the decree of eviction passed by the trial Court. Dislodging the decree of first appellate Court, this Court held that -- "I am unable to agree with the submission made by the learned counsel for the respondent that the plaintiffs have not succeeded in proving their bona fide requirement." 17. The case on hand is akin to this. 18. I have to render to the appellant' 'his due", being one of the three percepts of law inscribed on the wall of Harvard Law School Library, as pointed out by Paul A. Freund, and exercise control to ensure 'sense of confidence' in the justice system. 19. The case on hand is akin to this. 18. I have to render to the appellant' 'his due", being one of the three percepts of law inscribed on the wall of Harvard Law School Library, as pointed out by Paul A. Freund, and exercise control to ensure 'sense of confidence' in the justice system. 19. Burger CJ of American Supreme Court once observed that – 'A sense of confidence in the Courts is essential to maintain the fabric of ' ordered liberty for a free people and it is for the subordinate judiciary by its action and the High Court by its appropriate control to ensure it." 20. New Testament conveys that "We walk by faith, not by sight". Faith and confidence must be seen to exist in matter of delivery of justice system particularly. 21. The case on hand shows as to how a good cause suffers and how matter is unduly prolonged? Here section 190 of the Code of Civil Procedure corrects the' 'error" and delivers justice to a wronged landlord, first by tenant and then by first appellate Court. When "action:' of first appellate Court is wrong and unsustainable, I, by appropriate control, undo the wrong done. 22. The Court has to act in a fair and reasonable manner. In (1956) AC 696, Lord Radcliffe put it elegantly thus – "their actual persons should be allowed to rest in peace. In their place there rises the figure of the fair and reasonable man. And the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the Court itself." 23. Ex consequenti, I allow this appeal, vacate the judgment and decree of the first appellate Court and restore the judgment and decree of the trial Court with orders as to costs payable by respondents throughout. Counsel fee is fixed at Rs. 750/-, if certified. Let a decree be drawn up. 24. The 'Omega has thus been said because law and justice should live in harmony. 25. Transmit a copy of this judgment to concerning Court as well as to concerning Judge, whose judgment is incinerated, wherever he may be posted at present. This is one way of exterminating "darkness" and ensuring "light" in administration of justice. 26. Return the record of Courts below.