Madhya Pradesh High Court

Uday Chand vs Mahendra Kumar on 21 September, 2023

Author: Avanindra Kumar Singh

                                  1

       IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR

                              BEFORE

            HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH

                  ON THE 21st Day of SEPTEMBER, 2023

                    SECOND APPEAL No. 2207/2019

Between:-

1.   UDAY CHAND S/O DEEP CHAND
     AGED 70 YEARS R/O BIHARIJI
     WARD, KHURAI, DISTRICT
     SAGAR (MADHYA PRADESH)




                                                         ....APPELLANT
(BY SHRI K.S. JHA - ADVOCATE)

AND

1.   MAHENDRA KUMAR S/O DHANNALAL
     JAIN AGED 64 YEARS,

2. ABHISHEK S/O MAHENDRA KUMAR JAIN
   AGED 33 YEARS,
   BOTH RESIDENTS OF DEENDAYAL
   UPADHYAYA WARD TEHSIL KHURAI,
   DISTRICT SAGAR (MADHYA PRADESH)


                                                       .....RESPONDENTS


(SHRI R.P. AGRAWAL - SENIOR ADVOCATE WITH SHRI SHARANSH
KULSHRESHTHA - ADVOCATE FOR THE RESPONDENTS)

RESERVED ON           :     06.09.2023
PRONOUNCED ON         :     21.09.2023
                                          2




      This second appeal having been heard and reserved for orders, coming on for
pronouncement this day, the Court passed the following :


                                   JUDGMENT

This Second Appeal has been filed by the appellant/defendant

assailing the judgment and decree dated 22.07.2019 passed in regular

Civil Appeal No. 4-A/2016 by the learned IInd Additional District Judge,

Khurai, District Sagar (M.P.), affirming the judgment and decree dated

26.11.2015 passed in Civil Suit No. 183-A/2010 by the learned IInd Civil

Judge, Class II Khurai, District Sagar (M.P.).

2. The learned trial Court has directed the defendant/appellant to hand

over the vacant possession of the suit shops situated at Dindayal Upadhya

Ward, House No.142, which is shown in plaint map as A. B. C. D., and

hand over the vacant possession to plaintiff No. 1.

3. These facts are not disputed between the parties that respondent

No.1, Mahendra Kumar is owner of the suit shop and by order of the Rent

Control Authority dated 23.11.2007, monthly rent of Rs.500/- is being

paid. This is also an admitted fact between the parties that plaintiff No. 1

and plaintiff No.2 are father and son respectively, carrying on business in

a shop adjacent to suit shop jointly. It is also not disputed that notice to

vacant suit shop was given to the defendant, who replied to the notice.

4. Against the concurrent findings of the learned courts, the grounds

raised in this second appeal in briefly are that the courts have erred in

holding that plaintiffs bona fide need is proved, or that the suit shop is

required bona fide by them, for starting business of plaintiff No. 2 and that

they are not possessed with any other reasonably suitable alternate

accommodation of their own in the town. It should have been seen from

the available evidence on record that other suitable accommodations were

available, therefore, bona fide need is not proved. It is further argued that

plaintiff No. 1 is about 69 years of age at present and he actually does not

participate in running the shop. The shop is being run solely by plaintiff

No.2, thus he is not unemployed, therefore, need of plaintiff No.2 is

satisfied. In the year 2000 to 2002, two shops on the main road itself,

situated towards the other side of the house were let out by the plaintiff to

two other different tenants. The need of the plaintiff No.2 is also alleged to

have arisen, near the time, if need was genuine, then plaintiff would not

have let out the other two shops, therefore, prayer is made to allow the

appeal and set aside the judgments of both the learned courts.

5. This appeal was admitted on 18.11.2019 on the following

substantial questions o law :-

"Whether in view of the fact that plaintiff No.1 is now being old and aged person, has bona fide need of suit shop for commencing business for his son-Abhishek, for which they have no alternative suitable accommodation in the town?"

6. Both the learned counsels for the rival parties have been heard

finally on the merit of the appeal. Record of the trial Court as well as first

appellate court is also perused. Both the learned counsels for the parties

relied on the following judgments to argue whether substantial questions

of law can be answered in affirmative or in negative.

The appellant has relied on the following citations :-

i. It was argued that, at present, no bona fide requirement of

the plaintiff exists. Requirement must exist till the end of

litigation i.e. the decree is passed by the final court. Reliance has

been placed on Hasmat Rai and anr. v. Raghunath Prasad,

(1981) 3 SCC 103 in which the Hon'ble Supreme Court in Para

29 has held that bona fide needs should exist when the

proceedings is finally disposed of either by the appellate or

revisional court.

ii. It is also argued that no bona fide need is there. In fact, it is

just a desire to get the suit shop vacated. Plaintiff letting out shop

in the year 2000 - 2002. Conduct shows that they are not entitled

for eviction decree. Reference has been made to Rakhav Lal v.

Sardar Kripal Singh 2008 (1) MPLJ 278, in which in para 16,

it has been held that when the courts below gave a concurrent

finding that no bona fide requirement exists, in the facts and

circumstances of the case that no interference can be made in

second appeal.

iii. In case of Chainmal v. Rani Bai 2004 (4) MPLJ 354 in

para 14 to 17, it has been held that when plaintiff and her son had

entered into agreement to sell the entire building including the

suit shop - Adverse inference could be drawn against the plaintiff

for examining vendee who was an important witness, hence,

bona fide requirement is not proved.

iv. In case of Sarju Prasad Patel v. Nanakchand and others

2000 (1) MPHT 531, that alternative accommodation available,

plaintiff's explanation not proper, therefore, bona fide

requirement is not proved.

v. It is further held that burden on plaintiff is to prove non-

suitability of alternative accommodation, in absence of

explanation of non-suitability of alternative accommodation, suit

is liable to be dismissed. Reference has been made to Raj

Kumar Jain v. Smt. Usha Mukhariya 2009 (1) MPLJ 343, in

paras 14 to 16, it is held that non-suitability of an alternative

accommodation should be proved otherwise an eviction decree

should not be granted. In case of Gyasi Nayak v. Gyanchand

Jain 2010 (3) MPLJ 203 in paras 20 to 24, it has been held that

in order to show the bona fide for the alleged need the landlord is

duty bound to plead the available vacant accommodation with

him and also the circumstances as to how the same are not

suitable to him for the alleged need.

The respondents have relied on the following citations :-

i. Ram Prasad Rajak v. Nand Kumar and bros. and anr.

(1998) 6 SCC 748 in which the Hon'ble the Supreme Court in

paras 8 and 9 has held that in Second Appeal under Section 100

of C.P.C., there must exist some substantial questions of law,

where there was bona fide requirement of the premises by the

landlord does not involve such a question - Findings of the first

appellant court on the question based on appreciation of evidence

cannot be interfered with by High Court in Second Appeal on

reappreciation of evidence.

ii. In case of R.P. Tiwari v. Smt. Sulochna Choudhary

(2001) Madhya Pradesh Series on page 839, it has been held

that under Section 100 of C.P.C., in Second Appeal suit for

eviction - the question relating to the bona fide requirement does

not give rise to any substantial question of law. Concurrent

findings of fact cannot be reversed in second appeal.

iii. In case of Sujata Sarkar v. Anil Kumar Duttani, 2009

(2) MPLJ 156 in paras 17 to 20, it is held that bona fide

requirement of landlord, once the plaintiff establishes her bona-

fide need for the accommodation then it is not for the Courts to

decide as to the sufficiency or insufficiency of the

accommodation as a need of landlord is paramount and he cannot

be directed or forced to make do with the accommodation

available with him nor can a decree of eviction be denied on the

ground that the accommodation available with him is sufficient

once the bona fide need of the landlord is established.

iv. In case of Gurnam Singh (Dead) by legal

representatives and ors. v. Lehna Singh (Dead) by legal

representatives (2019) 7 SCC 641 in paras 13.1 and 19 has held

thus :-

"13.1. The suspicious circumstances which were considered by the learned trial Court are narrated/stated hereinabove. On reappreciation of evidence on record and after dealing with each alleged suspicious circumstances, which was dealt with by the learned trial Court, the first appellate court by giving cogent reasons held the will genuine and consequently did not agree with the findings recorded by the learned trial court. However, in second appeal under Section 100 of the CPC, the High Court, by impugned judgment and order has interfered with the judgment and decree passed by the first appellate court. While interfering with the judgment and order passed by the first appellate court, it appears that while upsetting the judgment and decree passed by the first appellate court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that High Court has not at all appreciated the fact that the High Court was deciding the second appeal under Section 100 of the CPC and not first appeal under Section 96 of the CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of ''a substantial question of law'' is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case

of Kondiba Dagadu Kadam, in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:

(i) Contrary to the mandatory provisions of the applicable law;

(ii) Contrary to the law as pronounced by the Supreme Court;

(iii) Based on inadmissible evidence or no evidence.

It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal.

19. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the courts below and/or the first appellate court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even

in the case of Narayanan Rajendran v. Lekshmy Sarojini, despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the first appellate court, either without formulating the substantial question of law or on framing erroneous substantial question of law."

v. In case of C. Doddanarayana Reddy (Dead) by legal

representatives and ors. v. C. Jayarama Reddy (Dead) by

legal representatives and ors. (2020) 4 SCC 659 in para 30, it

has been held that under Section 100 of C.P.C., the concurrent

findings of the trial Court and the appellate court cannot be

interfered when the view taken is a plausible view and the

findings of the facts are not perverse.

vi. In the case of Arumugham (Dead) by legal

representatives and ors. v. Sundarambal and anr. (1999) 4

SCC 350 in para 16 it is held as under :-

"16. On the question of burden of proof we are of the view that even assuming that burden of proof is relevant in the context of the amended provision of section 100 CPC, the same would not be relevant when both sides had adduced evidence. It would be relevant only if a person on whom the burden of proof lay failed to adduce any evidence altogether. In the present case both sides had adduced oral as well as documentary evidence

and therefore even assuming that it was erroneous for the lower appellate court to say that the burden of proof lay on the first defendant to prove that the plaintiff was not the son of the late Haritheertham, that would not, in our opinion, have any material bearing on the conclusion reached by the lower appellate court. The appellate court had considered the oral and documentary evidence adduced on both sides and preferred to accept the evidence adduced on the side of the plaintiff and it also rejected the evidence adduced on the side of the defendants. In fact, reading the judgment of the High Court, we are left with the impression that the High Court thought that it was dealing with the case as if it was a first appeal. Therefore, for the reasons given above, the judgment of the High Court cannot be sustained and the same is accordingly set aside. The judgment of the lower appellate court is restored."

vii. In the case of Raghunathi and anr. v. Raju Ramappa

Shetty 1991 Supp (2) SCC 267 in para 3 it is held as under :-

"Having heard learned counsel for the parties, we find substance in the above submission. A perusal of the judgment appealed against indicates that the aforesaid concurrent finding of the courts below was set aside by the High Court on two grounds. Firstly, it was held by the High Court that the fact that the alleged sub-tenants had left the premises showed that the dominant intention behind the agreements between the defendant and those persons was to create a leave and licence and not a lease. The second ground for setting aside the finding of the Courts below was that the burden of proof was wrongly placed upon the respondent. Both these grounds cannot be

sustained. With regard to the first ground referred to above suffice it to point out that the tenant's liability to eviction arises when the fact of unlawful subletting is proved. At the date of the notice, if it is proved that there was unlawful subletting, the tenant is liable to be evicted. The mere fact that the sub-tenants may have left the premises after that date would be of no consequence. The view which we take finds support from the decision of this Court in Gajanan Dattatraya v. Sherbanu Hosang Patel. Insofar as the second ground is concerned it is again settled law that once the parties have been permitted to produce evidence in support of their respective cases and it is not their grievance that any evidence was shut out the question of burden of proof loses significance and remains only academic. In the instant case it is not the case of the respondent that he was precluded by the trial court to produce any evidence. In this view of the matter, the High Court apparently committed a manifest error of law in setting aside the decrees of the courts below on the ground of burden of proof."

viii. In case of Lohia Properties (P) Ltd., Tinsukia,

Dibrugarh, Assam v. Atmaram Kumar (1993) 4 SCC 6 in

paras 13, 14 and 15 it is held as under : -

"13. Order 8 Rule 5(1) reads as follows:

Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:

Provided that the Court may in its discretion require any fact so admitted to be provided otherwise than by such admission."

14. What is stated in the above is, what amount to admitting a fact on pleading while Rule 3 of Order 8 requires that the defendant must deal specifically with each allegation of fact of which he does not admit the truth.

15. Rule 5 provides that every allegation of fact in the plaint, if not denied in the written statement shall be taken to be admitted by the defendant. What this rule says is, that any allegation of fact must either be denied specifically or by a necessary implication or there should be at least a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation shall be taken to be admitted.

7. On going through the judgments as cited above by learned counsels

for the rival parties, it is clear that question of plaintiff No.1, being old and

aged person and on that ground, bona fide need of the son (Plaintiff No.2)

is satisfied, cannot be a substantial question of law. In fact, it is purely a

question of fact and there is no law or on facts barring a 64 years old

respondent/plaintiff (Mahendra Kumar), to do business and, in fact, the

appellant/defendant is of 70 years of age, if he can do business, there is no

bar that plaintiff No. 1 cannot do business.

8. Regarding suitable alternative accommodation in the town, there is

nothing on record that any alternative accommodation at relevant point of

time or soon before i.e. date of filing Civil Suit on 13.01.2010, was

available or fall vacant subsequent to suit. Accordingly, in the facts and