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Madhya Pradesh High Court · body

2011 DIGILAW 98 (MP)

Mohammad Ismail v. Sikhandar Azad

2011-01-24

ALOK ARADHE

body2011
JUDGMENT 1. This appeal has been preferred by the plaintiff landlord whose suit for eviction has been dismissed. This Court vide order dated 11.5.2007 had admitted the appeal on the following substantial question of law: "Whether the Courts below have committed illegality in negating the genuine requirement of the plaintiff without applying the objective test?" 2. The relevant facts necessary to answer the question of law framed by this Court are that the appellant/plaintiff instituted a suit on 11.11.1987 seeking the decree for eviction on the ground enumerated under section 12 (1) (a), (c), (f), (g) and (h) of the M.P. Accommodation Control Act, 1961 (in short 'the Act'). The plaintiff sought the decree under section 12 (1) (f) on the ground that the plaintiff is unemployed and needs the suit accommodation bona fide for opening a general store and he has no alternative accommodation. The defendant filed the written statement in which inter alia, the bonafide need of the plaintiff was denied on the ground that the plaintiff is engaged in the business of selling the cattle feed and is running a shop in which bicycles are let out on rent and is not unemployed. 3. The trial Court vide judgment and decree dated 29.12.1992 inter alia, held that the plaintiff is running shop in which bicycles are let out on rent and he is not unemployed. It was also held that in notices Exs. D-1 and D-2, dated 1.2.1985 and 27.7.1987, the bonafide need of the plaintiff's brother was set up. It was further held that the plaintiff has failed to prove that he has no alternative accommodation. Accordingly, the suit was dismissed. The plaintiff preferred an appeal against the decree of the trial Court only insofar as it related to his claim for eviction under section 12 (1) (f) of the Act. The appellate Court vide judgment and decree dated 1.11.1999 inter alia, held that if the plaintiff would have needed the suit shop bonafide, he would not have set up the need of his brother in notices Exs. D-l and D-2. Without discussing the statements of Sikhandar, the defendant and Naresh Kumar defendant Witness No.2 and merely by referring to their statements in paragraph 11 appellate Court recorded a finding that the plaintiff is carrying on the business of sewing of mattress and quilts, letting out the bicycle on rent and selling of cattle feed. D-l and D-2. Without discussing the statements of Sikhandar, the defendant and Naresh Kumar defendant Witness No.2 and merely by referring to their statements in paragraph 11 appellate Court recorded a finding that the plaintiff is carrying on the business of sewing of mattress and quilts, letting out the bicycle on rent and selling of cattle feed. Accordingly, the bonafide need of the plaintiff was not found to be proved. It was further held that though the plaintiff's father is carrying on the business in the shop situate in front of the house of the plaintiff and has stated that it is rented accommodation yet neither the rent receipts have been filed nor the landlord has been examined to prove that the accommodation where the business is carrying on by the plaintiff's father is rented accommodation. The plaintiff in paragraph 6 of his deposition has admitted that the shop situate in front of his house belongs to him therefore, the plaintiff has alternative accommodation. Accordingly, the decree passed by the trial Court was affirmed. 4. Shri P.N. Pathak, learned counsel for the appellant submitted that from the evidence on record it is established that the plaintiff is assisting his father in his business which is seasonal in nature. The findings recorded by the Courts below that the plaintiff is carrying on the business is perverse and is based on mis-appreciation of evidence on record. Learned counsel for the appellant further submitted that he has filed an application under Order 41 Rule 27 of the Civil Procedure Code with which copy of the judgment and decree passed in the suit for eviction instituted against the plaintiff's father has been filed which shows that plaintiffs father was carrying on the business in the rented accommodation. In support of his submissions learned counsel has placed reliance in K.S. Sundararaju Chettiar v. M.R. Ramachandra Naidu, AIR 1994 SC 2129 and Ragavendra Kumar v. Firm Prem Machinery and Co., 2000 (1) JLJ 186 = AIR 2000 SC 534 . On the other hand, learned counsel for the respondent submitted that both the Courts below on appreciation of the evidence on record have rightly held that bona fide need of the plaintiff is not genuine and no interference in exercise of power under section 100 of the Code of Civil Procedure is called for. 5. I have considered the submissions made on both sides. 5. I have considered the submissions made on both sides. Vide order dated 20.1.2011 this Court has struck out the defence of the respondent defendant against eviction. However, still the plaintiff has to satisfy the Court that he has fulfilled the statutory conditions which enable him to seek a decree for eviction. [See: Modula India v. Kamakshya Singh Deo, AIR 1989 SC 162 ]. The jurisdiction of this Court to interfere with concurrent findings of fact is well defined by catena of decisions. If the Courts have misread the material on record and have misdirected himself in the matter of legal principle and have wrongly cast burden on the plaintiff, this Court would be justified in interfering with the finding of the fact. [See: Hafazat Hussain v. Abdul Majeed, (2001) 7 SCC 189 ]. It is well settled in law that if while recording a finding the Court does not bear in mind the statutory mandate such finding would not be a mere finding of fact. [See: Deenanath v. Pooranlal, 2001 (2) JLJ 196 = (2001) 5 SCC 705 ]. Under section 100 of the Civil Procedure Code interference with the finding of fact can be made in the finding is perverse. [See: Kulwant Kaur and others v. Gurdial Singh Mann (Dead) By LRs., (2001) 4 SCC 262 and Bharath Matha v. R. Vijaya Renganathan, (2010) 11 SCC 483 ]. 6. In the backdrop of well settled legal position, facts of the case may be seen. The plaintiff who has been examined as plaintiff witness No.1 in paragraph 1 in his deposition has said that he is unemployed. In paragraph II of his deposition he has stated that cycle shop is run by his brother. He has further stated that he assists his father in his business of sewing of mattress and quilts which is seasonal in nature. Similarly plaintiff witness No.2, Ramprasad in paragraph 4 of his statement stated that the plaintiff assists his father in his business of sewing of mattress and quilts. Similarly plaintiff witness No. 3-Mohd. Ibrahim, father of the plaintiff has stated that he is carrying on the business of sewing of mattress and quilts which is seasonal in nature and the plaintiff is unemployed. He has no alternative accommodation for business of his son. In paragraph 3 of the cross-examination a suggestion has been given to Mohd. Similarly plaintiff witness No. 3-Mohd. Ibrahim, father of the plaintiff has stated that he is carrying on the business of sewing of mattress and quilts which is seasonal in nature and the plaintiff is unemployed. He has no alternative accommodation for business of his son. In paragraph 3 of the cross-examination a suggestion has been given to Mohd. Ibrahim that the plaintiff assists him in his business of sewing mattress and quilts. However, by misreading the evidence on record the trial Court has recorded a findings that plaintiff is running a shop in which bicycles are let out. The first appellate Court which is the final Court of facts must record its finding only after deciding the issues of law and facts. The appellate Court is under an obligation to give its reason in support of its conclusion. The first appeal is a valuable right and the parties have right to be heard on question of law as well as question of fact. [See: Madhukar and others v. Sang ram and others, (2001) 4 SCC 756 ]. However, in the instant case the appellate Court without discussing the material evidence on record, merely by making a statement of DW-1 and DW-2 and even without assigning any reasonings, have recorded a conclusion that the plaintiff is engaged in business of sewing mattress and quilts. Merely, because in the notices Ex. D-1 and Ex. D-2 1.2.1985 and 26.6.1986 need of the brother was mentioned, no inference can be drawn that need of the plaintiff is not bona fide. The plaintiff has stated in his deposition that his brother is now running the shop in which bicycles are let out on rent. The suit has been filed on 11.11.1987. A landlord cannot be non-suited on the ground that he has failed to disclose a ground for eviction in notice even though in the suit he has proved the same. The plaintiff as well as his father has stated that they do not have any alternative accommodation. The burden of proof is on the person who asserts the positive. The defendant has failed to prove that the plaintiff has any alternative accommodation. Therefore, the Courts below have clearly erred in placing the burden of proof on the plaintiff and holding that he has no suitable alternative accommodation. The burden of proof is on the person who asserts the positive. The defendant has failed to prove that the plaintiff has any alternative accommodation. Therefore, the Courts below have clearly erred in placing the burden of proof on the plaintiff and holding that he has no suitable alternative accommodation. No orders are necessary to be passed on the application under Order 41, Rule 27, as this Court has held that plaintiff has no alternative accommodation. Thus, the finding recorded by the Courts below that need of the plaintiff is not bona fide is perverse. 7. Thus, it is apparent that the plaintiff has fulfilled the statutory mandate and has proved that he bona fide needs the suit accommodation and he has no other suitable alternative accommodation. Thus, the Courts below have negatived the bonafide need of the plaintiff without applying the objective test. Thus, the substantial question of law framed by this Court has to be answered in the affirmative. 8. In the result, the appeal succeeds. The judgment and decree of the Courts below are set aside and the plaintiff's suit for eviction under section 12 (1) (f) of the Act is decreed with costs.