M/S. BHANWARLAL DUGAR & ORS.versusBRIDHICHAND PANNALAL & ORS.

                    [2010) 7 S.C.R. 403


           M/S. BHANWARLAL DUGAR & ORS.                         A
                              v.
            BRIDHICHAND PANNALAL & ORS.
             (Civil Appeal· No. 4889 of 2010)

                        JULY 5, 2010
                                                                 B
   [B. SUDERSHAN REDDY AND SURINDER SINGH
                  NIJJAR, JJ.]

    Code of Civil Procedure, 1908:

     s.96 - Appeal from original decree - Scope of- HELD:
                                                                c
A regular first appeal is a rehearing of the suit and the
appellate court is bound to appreciate the evidence on record
and arrive at its own conclusion - In the instant case, the
 appellate court miserably failed to exercise its appellate
jurisdiction as it copied verbatim the judgment of trial court D
without any independent application of mind and appreciation
 of evidence - Rent Control and Eviction. ·
     s. 115 - Revisional jurisdiction of High Court - HELD:
High Court cannot re-appreciate the evidence and set aside E
concurrent findings of fact recorded by courts below, by taking
a different view of the evidence - It is open to High Court to
remit the matter if it finds that the courts below did not consider
the material evidence on record - In the instant case, though
the High Court rightly held that the appellate court failed to F
consider the material evidence on record, but it erred it
undertaking that responsibility upon itself - Order of High
Court set aside - Matter remitted to appellate court for hearing
and disposal of the appeal afresh - Rent Control and Eviction.
     The 'nstant appeal was filed by the plaintiffs-landlords G
against the judgment of the High Court passed in a
revision petition reversing the concurrent findings of fact
recorded by the trial court as affirmed by the appellate
court that the tenant-respondent was a wilful defaulter,
                             403                                 H
    404       SUPREME COURT REPORTS            (201 O] 7 S.C.R.

A   liable to be evicted and that the landlord-appellants bona
    fide required the premises for their own business.
          Allowing the appeal, the Court
         HELD: 1.1. The plaintiffs-appellants in their plaint in
B   clear and categorical terms have pleaded that the
    schedule premises is bona fide required by them for their
    own use as they and their sons have to do their own
    business from the schedule premises. The trial court
    upon appreciation of the evidence available on record
c   has found that the appellants/plaintiffs do not have any
    other suitable place to start their own business except the
    suit premises which is situated on the ground floor. The
    appellate court without appreciating the evidence
    available on record merely copied verbatim the findings
0   of the trial court. It committed the same mistake even
    while considering the issue relating to wilful default on
    the part of the defendants. [para 6-7 and 9) [407-A-B, G;
    408-G)
       1.2. A regular first appeal is nothing but a rehearing
E of the suit and the appellate court is bound to appreciate
  the evidence available on record and arrive at its own
  conclusions. Only such conclusions arrived at upon
  appreciation of the evidence are conclusive and not
  normally interfered with by the revisional court by re-
F appreciating the evidence. In the case on hand, the
  appellate court copied verbatim the judgment of the trial
  court without any independent application of mind and
  assessing the evidence. The appellate court miserably
  failed to exercise its appellate jurisdiction. [para 7) [407-
          .
G H; 408-A-B)
       2. It is settled law that the High Court cannot re-
  appreciate the evidence and set aside the concurrent
  findings of fact recorded by courts below by taking a
  different view of the evidence. It is always open to the
H High Court to remit the matter if in its opinion the courts
  BHANWARLAL DUGAR & ORS. v. BRIDHICHAND                 405
            PANNALAL & ORS.
below did not consider the material evidence on record.         A
In the instant case, the High Court instead of remitting the
matter for consideration afresh by the appellate court,
chose to undertake that responsibility upon itself, on the
ground that the appellate court failed to consider the
material evidence on record, which course cannot be             s
sust~ined. [para 8) [408-D-F]

     3. The order of the High Court is set aside. The matter
is rnmitted to the appellate court for hearing and disposal
01 the appeal afresh in accordance with law and C
expeditiously. [para 10) [408-H; 409-A]

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4889 of 2010.

    From the Judgment & Order dated 13.8.2009--0f the High      0
Court of Gauhati in Civil Revision Petition No. 157 of 2009.

    Vijay Hansaria, Aseem Mehrotra, Abhijat P. Medh for the
Appellants.

    P.S. Narsiman, Manish Goswami (for Map & Co.) for the       E
Respondents.

    The Judgment of the Court was delivered by

    B. SUDERSHAN REDDY, J. 1. Leave granted.
                                                                F
     2. This is a landlord's appeal by Special Leave against
the order of the High court reversing the concurrent decree of
eviction from commercial premises at Guwahati in Assam. The
Trial Court; the Appellate Court concurrently found that the
respondent was a wilful defaulter and liable to be evicted. They G
have also found that the appellants herejn required the
premises for their own business purpose. The High Court in
exercise of its jurisdiction under Section 115 of the Code of
Civil Procedure reversed the concurrent findings of facts and
                                                                H
    406     SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A   accordingly dismissed the suit for eviction filed by the
    appellants against the respondents.

         3. The premises in question is a commercial one. There
    is no dispute of landlord and tenant relationship between the
    parties. Only two substantial issues framed by the Trial Court
8
    were: (1) whether the respondent committed any default in
    payment of rents since April, 1993 as pleaded by the
    appellants? (2) Whether the appellants required the suit
    premises bona fide for their own use? On both the issues the
C   Trial Court as well as the Appellate Court concurrently held in
    favour of the appellants.

        4. The High Court upon re-appreciation of evidence
    reversed the findings of the courts below.

0        5. In this appeal, Shri Vijay Hansaria, learned senior
    counsel appearing on behalf of the appellants strenuously
    contended that the High Court committed a manifest error in
    interfering with the concurrent findings of facts arrived at by the
    courts below by reappreciating the evidence which is
E   impermissible in law. He also contended that the appellants
    clearly made out and established their case that the respondent
    committed default in payment of rents since April, 1993 till the
    date of filing of the suit. The appellants have also successfully
    established that the premises in question is required by them
    for their own business purposes. His submission was that the
F   High Court exceeded its jurisdiction in interfering with the
    concurrent findings of facts. Shri P.S. Narasimha, learned
    senior counsel appearing on behalf of the respondent
    contended that the High Court on facts was justified in reversing
    the findings of the courts below inasmuch as the findings
G   recorded by the courts below were perverse in nature. It was
    submitted that the courts below committed serious error in
    exercise of their jurisdiction and ignoring vital evidence and in
    such circumsta1ces the High Court was well within its
    jurisdiction to correct the errors committed by the courts below
H   in exercise of their jurisdiction.
                                                        .•


   BHANWARLAL DUGAR & ORS. v. BRIDHICHAND                       407
   PANNALAL & ORS. [8. SUDERSHAN REDDY, J.]

 Bona fide Requirement of the Premises:                                 A
        6. The appellants in their plaint in clear and categorical
  terms pleaded that the schedule premises is bona fide required
. by them "for their own use as they and their sons have to do
  their own business from the schedule premises, ............." The     B
  respqndent in the wriUen statement pleaded that the sc;hedule
· premises is not required bona fide by the appellants for their
  own use. That apart, it was further pleaded that the appellants
  alread,y,started new business in the year, 1997 in their own
  p(er\1,\ses. "Besides this, the plaintiffs have a number of tenants   C
  4nder them such as Canara Bank, Madan Electricals etc. in the
  same building; but no case has been filed against them for
  vacating the premises which shows that the plaintiffs are not ih
  need of premises for their own use and occupation ......... ."
  Plaintiff No.2 examined himself as PW-1 in the present case.
  It is specifically stated by him that the premises is required for    D
  starting riew business for own sons for which purposes they
  have sufficient funds and also can manage required resources
  from the financial institutions for starting new business. In the
  cross-examination it was suggested to PW-1 that he did not
  state in the plaint as to what type of business the plaintiffs        E
  intended to start in that premises. It was not suggested that the
  appellants did not possess the financial resources for
  commencing their own/business in the suit premises. It was
  however, suggested that many other premises were under the
  occupation of the tenants which suggestion was accepted by            F
  PW-1.

     7. The Trial Court upon appreciation of evidence available
 on record found that the appellants/plaintiffs do not have any
 other "suitable place to start their own business except the suit G
 premises which is situated on the ground floor". The Appellate
 Court without reappreciating the evidence available on record
 merely copied the findings of the Trial Court in verbatim. It is
 needless to state that a Regular First Appeal is nothing but .
 rehearing of the suit and the Appellate Court is bound to H
    408     SUPREME COURT REPORTS                 [2010] 7 S.C.R.


A appreciate the evidence available on record and arrive at its
  own conclusions. Only such conclusions arrived at upon
  appreciation of the evidence are conclusive and not normally
  interfered with by the revisional court by re-appreciating the
  evidence. In the case on hand the Appellate Court verbatim
B copied the judgment of the Trial Court without any independent
  application of mind and assessing the evidence. The Appellate
  Court miserably failed to exercise its appellate jurisdiction. The
  High Court is right in observing that the Appellate Court merely
  reproduced the judgment of the Trial Court without any
c independent application of mind.

        8. But the question that arises for our consideration in the
  present case is whether the Revisional Court is justified in re-
  appreciating the evidence and substituting its own findings on
  the ground that the Appellate Court did not consider the
D evidence properly? It is settled law that the High Court cannot
  re-appreciate the evidence and set aside concurrent findings
  of facts by taking a different view of the evidence. It is always
  open to the High Court to remit th~ matter if in its opinion the
  courts below did not consider the material evidence on record.
E In the instant case the High Court instead of remitting the matter
  for fresh consideration by the Appellate Court on the ground
  that the Appellate Court failed to consider the material evidence
  on record had chosen to undertake that responsibility upon itself
  which we find it difficult to sustain.
F
    WILFULL DEFAULT:

        9. We find that the First Appellate Court committed same
  mistake even while considering the issue relating to wilful
  default alleged to have been committed by the respondent. On
G this issue also the Appellate Court merely re-produced verbatim
  judgment of the Trial Court.

      10. Considering all the facts and circumstances as noticed
  above, we are constrained to hold that the order of the High
H Court cannot be sustained and as such we set aside the same
  BHANWARLAL DUGAR & ORS. v. BRIDHICHAND                     409
  PANNALAL & ORS. [B. SUDERSHAN REDDY, J.]
and remit the matter to the First Appellate Court (Appellate        A
Court of the Civil Judge No. 2, Kamrup, Guwahati) for hearing
the appeal afresh for its disposal in accordance with law. It is
needless to observe that the Appellate Court shall re-hear the
matter and decide all the issues that arise for its consideration
by properly re-appreciating the evidence available on record.       B
The appeal shall be heard and disposed of within six months
from today.

     11. The appeal is, accordingly, allowed without any order
as to costs. '
                                                                    c
R.P.                                           Appeal allowed.