Supreme Court of India
SMT. JAHEJO DEVI & ORS.versusMOHARAM ALI
- Citation
- 1987 INSC 368
- Decided
- 9 December 1987
- Disposal
- Appeal(s) allowed
- Bench
- SABYASACHI MUKHERJI
Holding
The High Court erred in overturning the lower courts' findings; the tenant was a habitual defaulter and the landlords' claim of bona fide need was proved, justifying eviction.
Summary
The appellants, landlords residing in Meghalaya, filed a suit to evict the respondent tenant from a shop in Arrah, Bihar, on grounds of rent default and bona fide need under s.12(1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977. The trial court and the first appellate court held that the tenant was a habitual defaulter who, despite knowing the correct address, sent rent to a wrong address, and that the landlords had a genuine need for the premises. The High Court, on second appeal, reversed these findings, stating there was no proof of the landlord’s need or of the tenant’s knowledge of the proper address. The Supreme Court allowed the appeal, ruling that the High Court could not disturb the concurrent factual findings of the lower courts, confirming the tenant’s default and the landlord’s bona‑fide need, and thereby granting eviction.
Issues considered
- Whether the High Court in a second appeal can interfere with the concurrent factual findings of the trial court and first appellate court on rent default and bona fide need.
- Whether the tenant’s remittance of rent to an incorrect address, despite knowledge of the proper address, constitutes a valid tender.
- Whether the landlords have established a bona fide personal necessity for the suit shop under s.12(1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977.
Legislation cited
Subjects
evictionrent defaultbona fide needpersonal necessitylandlord‑tenantBihar Buildings Actsecond appealconcurrent findings
Judgment
SMT. JAHEJO DEVI & ORS. A
v.
MOHARAM ALI
DECEMBER 9, 1987.
[SABYASACHI MUKHARJI AND S. RANGANATHAN, JJ.] B
Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977:
S. 12 (I)-Eviction of tenant-Default in payment of rent-Bona fide
need of landlord-Concurrent findings of trial and first appellate court
in favour of landlord-Whether open to High Court to interfere in
second appeal. c
The appellants-landlords, residents of the State of Bihar, carry-
ing on business in Meghalaya, sought eviction of the tenant from their
suit shop in Arrah, Bihar on the ground of default in payment of rent
as well as on the ground of bona fide need, and for arrears of rent
under s.12(1) of the Bihar Buildings (Lease, Rent and Eviction) Con- D
trol Act, 1977. Their case was that the tenant had not paid the rent for
the 'period of default and that due to disturbances in Meghalaya their
business was completely disturbed and some of the children of the
family, who had grown up, were sitting idle. They, therefore, wanted
r to do their business in the suit shop which was adjacent to their resi-
dential house and there was a connecting door.
The tenant took the plea that he had sent the money-order to
E
their village address, and that there was no evidence to show that
there was no other house available to the landlord from which his need
could not be met.
F
The Trial Court came to the conclusion that the tenant was a
defaulter. He had full knowledge about the fact that the landlord and
her family members did not reside at the said village. So, even if the
rent had been sent that could not be a valid tender. It further found
that the case of the landlord about personal necessity was proved. The
findings of the trial court were affirmed by the First Appellate Court. G
These findings were, however, reversed by the High Court in second
appeal, which took the view that there was no evidence on record to
show that the tenant knew the proper address to which remittance
could have been made, and that there was no evidence of disturbances
in Meghalaya.
H
253
254 SUPREME COURT REPORTS [1988] 2 S.C.R.
A Allowing the appeal by special leave, J
HELD: 1. It was not open to the High Court in second appeal to
intr~fere with the concurrent findings of facts of the first two courts
both on default and bona fide need of the landlord. [259D I
B 2. The respondent-tenant was a habitual defaulter. Even after
the knowledge of the proper address he bad been deliberately remit·
ting the rent to a wrong address. There was, therefore, no valid
tender. f256A-B]
3. The appellants-landlords have been living and doing business
C in Meghalaya where there was disturbance and it was difficult for
them to have residence there. They allege that they have bona fide
reasonable need of the suit shop for doing their business, which was
adjacent to their residential house in Arrah and there was a connect·
ing door. There were grown up sons doing no business. There was no
evidence that there was some vacant premises which the landlord
D could conveniently occupy. The first two courts, therefore, in acting
on the basis of the reasonable need cannot be said to have committed
any such irregularity which could have been interfered with by the
High Court in second appeal. [258E·G I
M.M. Qasim v. Manohar Lal Sharma and others, AIR 1981 SC
E 1113 at page 1121, distinguished.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
3974of1987.
From the Judgment of Order dated 27.2.1987 of the High Court ,.
F of Patna in S.A. No. 103 of 1983. ~
Dr. Shankar Ghosh, and A.K. Srivastava for the Appellants.
B.B. Singh for the Respondent.
G The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. Special leave granted and f
Appeal disposed of as follows:
This is an appeal against the judgment and order of the High
H Court of Patna in second appeal, which was in respect of evic-
255
•
SMT. JAHEJO DEV! v. MOHARAM ALI [MUKHARJI, J.]
tion from of a premises at Arrah in Bihar. This is the landlords' A
appeal. The landlord sued the tenant on the ground of default
in payment of rent, as well as on the ground of bona fide need
and also for arrears of rent. The eviction sought for was by a
suit and the learned Trial Judge, the learned Add!. Munsiff
decreed the suit on the ground of default in the payment of rent
as well as on the ground of bona fide need of the landlord. It is B
not necessary in the view we have taken to set out in detail the
grounds and the findings._ arrived at by the Trial Court. The
Trial Court came to the conclusion that the tenant was a defaul-
ter and that the defendant had full knowledge about the fact
that the landlord and her family members reside at Meghalaya.
The defendant had not paid rent for the period of default i.e. C
from July 1974 till the date of the suit to the plaintiffs at their
address in Meghalaya. It was urged on behalf of the tenant that
he sent money order to Sonabarsa address. It was proved that
the landlord and her family members do not live at village
Sonabarsa. So even if the rent had been sent, as alleged by the
defendant the Trial Court found as alleged by the landlord, that D
could not be a valid tender. Furthermore, the learned Add!.
Munsiff found that notice under section 106 of the Transfer of
Property Act had been given to the tenant on behalf of the
landlord which was dated 12th November, 1977 and it was
served on the tenant on 29th November, 1977 which was duly
r proved. The acknowledgement of receipt of that thing was also
proved. In the notice it had been clearly stated that plaintiff
E
...
(
No. 3 had been appointed attorney by the owners/plaintiffs
for realising arrears of rent and filing suit. It is further
admitted by the defenqant in his evidence that plaintiff
No. 3 resides just by the side of the suit premises on the up-
per floor. In spite of this the defendant wilfully neglected
to pay any rent to plaintiff No. 3 from 29.11.77 to 19.4.78 i.e.
F
the date of the suit. Accordingly, the learned Trial judge discus-
sed the evidence extensively and came to his finding as afore-
said. This finding of the learned Trial judge was affirmed by the
.... learned Subordinate Judge to whom the appeal was taken. The
learned Subordinate Judge in his judgment analysed the facts. G
He noted that the tenant has stated in his written submission
that he used to send the rent at Sonabarsa address though he got
information about the purchase of the suit land by the respon-
dent after a great delay. After discussing the relevant facts
which are more or less the same as discussed by the learned
Trial judge the learned Subordinate Judge being the First H
256 SuPREME COURT REPORTS [1988] 2 S.C.R~
Appellate Coun came to a conclusion that· rent was not paid
)
A
and he funher came to the conclusion that even· after the
knowledge of the proper address the tenant had deliberately
· remitted the rent at Sonabarsa address and held that the tender
was not valid.
B Inasmuch as one of the grounds taken in the Second Appeal
·before the High Coun was the finding on this ground. The High · :;.,
Coun discussed this aspect of the evidence and reversed the finding. l
The High Coun was of the opinion that the finding that there was _
default in payment of rent from 29th November,· 1977 to lOth April, 'lii
1978 was erro!leous. The High Coun noted that rent had been remit-.~
C ted for these months to Sonabarsa address. The High Coun was in ,
error in holding that there was valid tender when in spite of the
knowledge that Sonabarsa address was not the address they remitted
rent to that place. The High Coun funher weni on to say that there
was no evidence on record to show that the defendant knew. the
proper address. In view of the concurrent findings and in view of the
D . letter of the Attorney on behalf of the landlord this is an erroneous
conclusion of the High Court. The High Coun, further expressed the
· view that unless he knew the ·proper address no remittance could
have been made to that address. In our opinion, there was no logic in
the finding of the High Court that the defendant was justified guilty
in sending rent to Sonabarsa address and there was valid tender. The
E ' High Court, therefore was in error in not holding that the respondent
was a habitual defaulter. The other ground was the ground of bona
fide need of the landlord. So far as the bona fide need of the landlord <t
was concerned the learned Trial judge discussed the matter and it was
admitted that the · plaintiff-landlord did business in Meghalaya, ' .._.tl
.
.• Assam, and their occupation was business. The defendant had not
F produced any document that plaintiffs had another house and land
r
except the suit house. This was an averment and assenion of the
landlord. In the premises, the learned Trial Court came to the conc-
lusion that the landlord had got only one house. The suit shop is
attached with the Janani Kita of the Plaintiffs, which is the house of
the landlord. The case of the landlord was that they were residents of -.Ill
G the State of Bihar and due to disturbance in Assam and Meghalaya
their busi!less was completely disturbed, and it was not possible for
them to do their business there, which was the only source of mainte-
nance of their family members. The Plaintiffs' family and some of the
children of the Plaintiffs family had grown up and were ·sitting idle
according to the landlord. Hence the plaintiffs wanted to do their
H business at Arrah in the suit shop. The suit shop aomittedly, it was
/
SMT. JAHEJO DEV! v. MOHARAM ALI [MUKHARJI, J.J 257
l found, was situated on the main road and it was suitable for the busi- A
ness and it was connected with the residential portion of the landlord
through a door. Under those circumstances the landlord alleged that
she had bone fide reasonable need of the suit shop for doing their
business. The case of the landlord regarding personal necessity was
found to be conclusively proved by several witnesses as noted by the
learned Trial judge. The learned Trial judge also found that there B
was disturbance in Assam and Megbalaya and it was difficult to have
residence in another State. This fact according to the learned trial
judge was proved by plaintiffs' witnesses. It was also proved by the
admission of the Plaintiff No. 9 in paragraph 11 and Plaintiff No. 6 in
paragraph 2 in support of the case of the plaintiff regarding personal
'-uecessity. On the basis of the aforesaid evidence the learned Trial c
judge found that the case of the landlord about personal necessity
was proved. On the same, this finding was affirmed by the First
Appellate Court as follows:
"The second question is whether there is a personal
requirement of the suit house by the respondent. In the D
W.S. vide para-9 the appellant has stated that the plaintiff
Nos. 1 and 2 have got a prosperous business in Mehga-
laya. In his evidence the appellant (D.W. 9 vide para 9)
has stated that agitation is going on in Assam and the
Assamese are driving out the citizens of other States from
Assam. While the arguments in this appeal were being E
heard the learned counsel for the respondent argued that
the condition in Assam has further deteriorated and it has
become inhabitable for the residents of other states. He
submitted that the judicial notice of this development can
be taken of because of this provides strength to the origi-
nal contention of the plaintiff. He relied on a decision F
reported in 1981 B.B.C.J. S.C. 165. From the evidence of
appellant himself it is clear that the Biharies better say not
Assamies are being driven out from Assam. It is fact then
definitely the requirement of the suit house by the respon-
dent is reasonable and bona fide, because they will defi-
nitely require the suit house for their maintenance at G
Arrah. Moreover the defendant D. W. 9 vide para 8 has
also admitted that the many persons in the respondent's
family have attained majority. Naturally these major
members of the family, in the aforesaid background,
require for the family a place to settle themselves in busi-
ness. It has been argued that some other shops of the H
respondents are vacant, and so the requirement of the suit
258 SUPREME COURT REPORTS [1988] 2 S.C.R.
A house is not bona fide. What shop is suited best to the )
interest of the respondent is a prerogative of the landlord
and the tenant can't question his choice. Therefore, even \I
if some houses are vacant since the family of the respon-
dent has become large and the members have become
major then the requirement of the suit house is bona fide
B and reasonable. I have also gone through the oral evi-
dence adduced from both the sides very carefully Md also
considered the effect of each of the documents proved by
both the sides and their bearing on the merit of the suit."
As mentioed hereinbefore being aggrieved thereby the appel-
C !ants went up in Second Appeal before the High Court. The High
Court on this aspect was of the view that personal necessity was not
proved. According to the High Court the said findings were based on .)
conjectures. The High Court by its reasoning stated that the plaintiffs
were not in Assam and there was no such evidence of disturbance or •
failure in Meghalaya from which it could be proved that people from
0 Bihar could feel apprehensive. The High Court held that there was
no evidence of any movement in the State of Meghalaya nor were
there any evidence that Biharis had been driven out from that State.
Firstly, it appears to us that on the basis of the evidence that the first
two courts have acted, it was not open to the High Court to interfere
in a matter like this in Second Appeal. Be that as it may the need, it '
E appears, was reasonable. The landlords are not living in Assam.
They are living and carrying on their business in Meghalaya. The
plaintiffs allege that they have bona fide reasonable need of the suit
shop for doing their business, which was adjacent to the residential1
house and there was a connected door. There are grown up sons
doing no business. In that view of the matter if the Trial court and
F the first appellate Court had acted on the basis of the reasonable
need, this cannot be said that the courts have committed any such "'
irregularity which could have been interfered with by the High Court
in second appeal. In our opinion, the High Court was unjustified in
interfering with the concurrent findings of facts. Section 12(1)(c) of
the Bihar Buildings (Lease, Rent and Eviction) Control Act 1977
G provided for partial eviction in certain circumstances. ~
Learned counsel for the respondent submitted to us that in this ~
case there was no evidence to show that there was no other house
available to the landlord from which the need of the landlord could
not be met. He drew our attention to certain observations of this
H Court in M.M.Qasim v. Manohar Lal Sharma and others AIR 1981
SMT. JAHEJO DEV! v. MOHARAM ALI [MUl(HARJI, J.[ 259
SC 1113 at page 1121 to the following effect: A
"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 B
aspect by saying that the landlord has an unfettered right
to choose the premises is to negative the very raison d'etre
of the Rent Act."
In our opinion these observations do not have any application
to this case mainly because in this case there was no evidence that
there was some vacant premises which the landlord could convenien- C
tly occupy. The occasion to examine this aspect did not arise.
In our opinion the High Court was in error in upsetting the
-'I concurrent findings of facts both on default and bona fide need of the
landlord and the judgment and order of the High Court of Patna
therefore; are set aside. Accordingly, the appeal is allowed in the D
facts and circumstances of the case. There will be no order as' to
costs.
P.S.S. Appeal allowed.
')<
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