Holding

The High Court was justified in interfering with the first appellate court’s finding because the latter had not considered the entire evidence and relevant documents, and therefore the appeal is dismissed.

Summary

The respondent landlady served three notices to the tenant, first claiming the premises were needed for her husband's legal practice, then for a cloth business, and finally repeating the latter before filing an eviction suit. The trial court held that the landlady's requirement for the cloth business was bona fide and decreed eviction. The first appellate court reversed, reasoning that the landlady had changed her ground and that the earlier notice was relevant, thereby rejecting the bona fide claim. On a second appeal under Section 100 of the CPC, the High Court found that the appellate court had failed to consider the entire evidence, especially the later notices, and reinstated the trial court's decree. The Supreme Court upheld the High Court’s interference, holding that it was justified because the lower appellate court did not examine all relevant documents, and dismissed the appeal.

Issues considered

Whether the High Court can interfere with the factual findings of the first appellate court under Section 100 of the CPC when the lower court failed to consider the whole evidence.
Whether the ground stated in the notice immediately preceding the suit is the only relevant ground for determining bona‑fide requirement, rendering earlier notices immaterial.
Whether a change in the landlady's stated ground for eviction affects the assessment of bona‑fide requirement under the Madhya Pradesh Accommodation Control Act.

Legislation cited

Code of Civil Procedure, 1908s. 100

Subjects

evictionbona fide requirementnoticeSection 100 CPCMadhya Pradesh Accommodation Control Actrent controlchange of groundappellate jurisdictionevidence appraisal

Judgment

SMT. MEHRUNNISA AND ORS. A
v.
SMT. VISHAM KUMAR! AND ANR.

. ,i'
DECEMBER 2, 1997

(DR. A.S. ANAND AND K. VENKATASWAMI, JJ.] B

M.P. Accommodation Control Act, 1976 : Section 129(f).

Rent Control and Eviction-Bolla fide requirement of
lalldladyLalldlady issued a llotice for eviction stating that premises was C
required for the office of her husband, a practising lawyer-No suit filed on
this basis-Second notice issued statillg that premises was required for cloth
busilless-Again no suit was filed-171ird notice issued repeatillg the ground
stated in second notice-Suit filed Oil the basis of this notice--Held : Only
the ground stated ill the llotice preceding the suit is relevant for deciding the
issue--Ground stated in first llotice not relevant for deciding the bona fide D
requirement of the lalldlady--First appellate cowt failed to give due impor-
tance to the fact that the landlady has not taken any steps to file suit for
eviction pursuant to the notice issued on two earlier occasions.

Code of Civil Pmcedure, 1908 : Section 100.
E
First appellate court-Judgment of-lnte1ference with-By High
Court-In second appeaf--First appellate coult reversed the judgment of trial
coult without taking into account the documents necessary for giving a finding
on the issue-Held: High Cowt justified in interfering with the judgmelll of
the first appellate coult. F

The respondent-landlady issued a notice to her tenant terminating
the tenancy stating that the suit premises, a non· residential one, was
required for using it as an office for her husband, a practising lawyer.
However, no action was taken pursuant to the said notil.-e. The respondent
issued a second notice stating that the suit premises was required for her G
cloth business which she intended to start. Even on the basis of the second
notice, the respondent-landlady took no action. A third notice was also
issued by the respondent-landlady repeating the same ground contained
in the second notice. This time, the landlady filed a suit for eviction on the
basis of the third notice. H
81
,.
82 SUPREME COURT REPORTS [1997) SUPP. 6 S.C.R.

A The trial court decreed the suit on the ground of bona fide require-
ment by the respondent-landlady for starting the cloth business. The first ·
appellate court reversed the judgment and decree of the trial court on .the
ground that the respondent- landlady had changed her stand and put
forward an entirely new ground for eviction, namely, ,that the premises was
B required for starting a cloth business on the basis of a judgment of the
High Court.

Therefore, the respondent-landlady preferred a Second Appeal
under Section 100 of the Code of Civil Procedure, 1908 before the High
Court. The High Court held that the first appellate court failed to read
C the whole evidence and all the documents exhibited in the trial court. The
High Court further held· that the notice issued and the circumstances
which prevailed just before the institution of the suit were relevant for
coming to a conclusion regarding the bona fide requirement of the
landlady. On this reasoning the High Court allowed the Second Appeal
D and decreed the suit for eviction. Hence this appeal.

Dismissing the appeal, this Court

HELD : 1. The first appellate court before reversing the finding of
the trial court on the issue of bona fide requirement of the landlady for
E starting a cloth business failed to read the entire evidence and take into
consideration all the documents placed before the trial court. Therefore,
the High Court was justified in interfering with the finding of the first
appellate court. The first appellate court has looked into the contents of
the first notice whereunder the landlady has stated that she required the
F premises for her husband's office and ignored the notice issuedjust before
the filing of the suit. The first appellate court has also failed to give due
importance to the fact that the landlady has not taken any steps to file suit
for eviction pursuant to the notice issued on two earlier occasions and the
ground stated in the notice preceding the suit is relevant for the purpose
G of deciding the issue. [88-B-E]
Sarvate T.B. v. Nemichand, (1996) MPW 26 (SC) and Mattula/ v.
Radhe Lal, [1974) 2 SCC 365, held inapplicable.

2. The first appellate court while reversing the judgment of the trial
H court has failed to take into account the documents necessary for giving a
MEHRUNNISA v. VISHAMKUMARI[K.VENKATASWAMI,J.) 83

finding on the issue of bona fide requirement. Therefore, the High Court A
was justified in interfering with the judgment of the first appellate court
. · in Second Appeal under Section 100 of the Code of Civil Procedure, 1908.
[89-H; 90-A-B; 88-E]
J.B. Shanna v. State of M.P., [1988] Supp SCC 451, Dilbagraj Punjabi
v. Sharad Chandra, [1988] Supp. SCC 710, Sundra Naicka Vadiyar (Dead) B
by LRs. v. Ramaswami AJ.Yar (Dead) by LRs., [1993] Supp 4 SCC 534 and
Koclmkakkada Aboobacker (Dead) by LRs. v. Attah Kasim, [1996] 7 SCC
389, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10798 of
~- c
From the Judgment and Order dated 15.1.96 of the Madhya Pradesh
High Court in S.A. No. 89 of 1988.

D.D. Thakur and Vivek Gambhir for the Appellants.
D
Dr. Shankar Ghosh, S.S. Khanduja, B.K. Satija and Y.P. Dhingra for
the Respondents.

The Judgment of the Co.urt was delivered by

K. VENKATASWAMI, J. This appeal by special leave is preferred E
by the legal representatives of the deceased tenant against whom an order
of eviction from the suit premises was passed by the High Court.

The respondent-landlady became the owner of the suit premises
under a registered sale deed dated 31.3.1975. On 12.7.1976, the respondent
F
issued a notice to the tenant terminating the tenancy stating inter alia that
the suit premises, a non- residental one, was required for using it as an
office for her husband, a practising lawyer. It was also stated that the tenant
has defaulted in payment of rent and has sub-let the premises without
written consent of the landlady. However, no action was taken pursuant to
the notice dated 12.7.1976. The respondent issued a second notice through G
lawyer on 9.7.1977 stating that the suit premises was required for her cloth
business which she intended to start. Even on the basis of the second
notice, no action was taken by the respondent landlady. A third notice was
also issued by the respondent-landlady on 12.10.1979 repeating the same
allegations contained in the second notice dated 9.7.1977. This time, the H
84 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.

A landlady filed a suit for eviction on the basis of the notice issued on
12.10.1979. The grounds for eviction as given in the plaint were that the
landlady required the premises for starting a cloth business; that the tenant
has defaulted in payment of rent for the. period from 1.4.1979 to 30.11.1979
and that the tenant has sub-let the premises unauthorisedly.
B
The tenant resisted the suit for eviction denying the requirement of
the landlady for her new business. It was also denied by the tenant that
there was default in payment of rent. The allegation of sub-tenancy was
also denied.

c The trial court on the basis of the pleadings framed five issues. The
plaintiff (respondent herein) examined herself and three other witnesses in
support of her pleadings. Likewise, the deceased defendant-tenant, apart
from examining himself, .examined six other witnesses in support of his
pleadings.
D
The trial court in its detailed judgment found that the requirement
of the landlady for starting cloth business was bona fide and that she was
not in possession of any other vacant shop of her own for the said
requirement : that the· landlady failed to establish the case of sub-letting
E and also the case of default in payment of rent. In other words, out of three
grounds put forward in support of the suit for eviction, the trial court
decreed the ·suit only on the ground of bona fide requirement by the
landlady for starting the cloth business, we are, therefore, not concerned
with the other grounds for eviction.

F Aggrieved by the judgment of the trial court, the deceased tenant
preferred an appeal to the appellate court. The lower appellate court, after
re-appreciating the pleadings and evidence, came to a different conclusion
on the bona fide requirement of the landlady for starting a cloth business.
According to the lower appellate court, the landlady failed to establish her
G case of the requirement of the suit premises for starting a cloth business.
The lower appellate court reversed :he judgment and decree of the trial
court mainly on the ground that the landlady issued a first notice on
12.7.1976 giving out an entirely different ground .for eviction, namely, that
she required the premises for the use of ·her husband as lawyer's office.
H Subsequently, according to the first appellate court, in the light of ~he
MEHR.UNNISA v. VISHAMKUMARI[K VENKATASWAMI,J.) 85

judgments of the High Court that such a claim cannot be the basis for A
eviction under Section.12(1)(t) of the Madhya Pradesh Accommodation ·
Control Act, 1961 (hereinafter called the 'Act'), the landlady has changed
her stand and put forward an entirely new ground for eviction, namely, that
the premises was required for starting a cloth business. According to the
lower appellate court, the change in the stand of the landlady exposed her B
intention to evict the tenant for some other motive. The lower appellate
court dismissed the suit for eviction by allowing the appeal preferred by
the tenant on the ground that the landlady failed to establish her case viz.
that she required the premises bona fide for starting a cloth business.

Aggrieved by the reversing judgment and decree of the lower appel- C
late court, the respondent-landlady preferred a Second Appeal under
Section 100, CPC, before the Madhya Pradesh High Court. The High
Court after going into the judgments of the courts below found that the
lower appellate court, though entitled to re-appreciate the evidence and
come to a different conclusion failed to read the whole evidence and all D
the documents exhibited in the trial court before reversing the finding of
. the trial court on the issue of bona fide requirement of the landlady for
starting a cloth business. According to the High Court, the lower appellate
court failed to appreciate the notices issued on 9.7.1977 and 12.10.1979
taking a consistent stand regarding the bona fide requirement for starting E
a cloth business. The High Court has taken note of a number of judgments
to t.he effect that the notice issued and the circumstances which prevailed ·
just before the institution of the suit are relevant for coming to a conclusion
regarding the bona fide requirement of the landlady. By giving undue
importance to the first notice and ignoring the subsequent notices, accord-
ing to the High Court, the conclusion reached by the lower appellate court F
is vitiated. On that ground and also accepting the appreciation of evi4ence
by the trial court on the issue of bona fide requirement of the landlady, the
High Court allowed the Second Appeal and decreed the suit for eviction.

It is under these circumstances, the present appeal by special leave G
has been preferred by the legal representatives of the tenant who died
pending the proceedings.

Mr. D.D. Thakur, learned Senior Counsel for the appellants,
strenuously .argued contending that the High Court exceeded its
jurisdiction under Section 100, CPC, by going into the evidence and H
86 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A reversing the conclusion of the lower appellate court on a question of fact.
On that ground, according to the learned Senior Counsel, the judgment of
the High .Court is liable to be set aside. He also submitted that the First
Appellate Court was justified in commenting upon the· ground for eviction
as given in the first notice and the subsequent change in the stand taken
B by the landlady. In other words, the learned counsel justified the
conclusions reached by the lower appellate court reversing the conclusions
of the trial court. Mr. Thakur in support of his contention placed reliance
on two judgments of this Court in Smvate T.B. v. Nemichand, (1966) MPLJ
26 SC and Mattulal V. Radhe Lal, (1974) 2 sec 365.

c Dr. Shankar Ghosh, learned Senior Counsel appearing for the
respondent-landlady contending contrary submitted that the High Court
was fully justified in reversing the finding of the lower appellate court as
the lower appellate court failed to read the entire evidence and all the
documents before coming to a conclusion contrary to the one reached by
....
D the trial court. Learned Senior Counsel further submitted that this Court
has consistently taken the view that if the first appellate court while
reversing the finding of the trial court failed ,to take note of all the
documents exhibited before the trial court and failed to read the entire
evidence, the High Court can interfere with such finding while exercising
E jurisdiction under Section 100, CPC. He also laid stress on the fact that
the lower appellate court ought not to have looked into the contents of first
notice issued by the landlady when the relevant notice for the purpose was
the last one issued just before the filing of the suit. The landlady having
not taken any steps pursuant to first and second notices, the contents in
those notices ought to have been ignored. Learned Senior Counsel sub-
F mitted that the High Court was right in observing that the circumstances
prevailing before the filing of the suit are relevant and not the circumstan-
. ces that prevailed long earlier to the filing of the suit.

We have considered the rival submissions and carefully gone through
G the judgments of all the three courts. It is true that this court in Nemi
Chand's case (supra) has, in unmistakable terms, held while deciding a case
under the Madhya Pradesh Accommodation Control Act 23 of 1955 that
the finding of the District Court based on appreciation of evidence was
binding upon the High Court and the High Court had no power to reverse
H that finding. This Court further observed as follows :
MEHRUNNISA v. VISHAM KUMAR! [K VENKATASWAMI, J.] 87

"The criticism made by the High Court that the District Court's A
finding was vitiated "due to very imperfect understanding of the ·
meaning of the expression 'genuinely requires'. occu~ring in clauses
(g) and (h) of Section 4 of the Act," and that the District Court
had "arrived at a finding which is totally unrelated to the legal
connotation of the phrase 'genuinely requires' and almost borders B
on perversity", does not appear to be merited. In our judgment,
the District Court committed no error in the examination of the
evidence in the light of the Full Bench judgment in Damodar's
case."

Likewise in Mattulal's case (supra), this court after referring to Nemi C
Chand case held as follows :-

-- "Now it is obvious that the issues whether the respondent required
the Lohia Bazar shop for the purpose of starting a new business
as a dealer in iron and steel materials and if so, whether his D
requirement was bona fide were both questions of fact. Their
determination did not involve the application of legal principles to
the facts established in the evidence. The findings of the Additional
District Judge on these issues were no doubt inferences from other
basic facts, but that did not alter the character of these findings
and they remained findings of fact. There is, therefore, no doubt E
that the conclusion of the Additional District Judge that the
respondent did not bona fide require the Lohia Bazar shop for the
purpose of starting business as a dealer in iron and steel materials
represented a finding of fact and it could not be interfered with
by the High Court in second appeal unless it was shown that in F
reaching it a mistake of law was committed by the Additional
District Judge or it was based on no evidence or was such as no
. reasonable man could reach. This was precisely the ground on
which a Bench of four Judges of this Court in Swvate T.B. v.
I Nemichand set aside the judgment of the Madhya Pradesh High
Court which had interfered which the decree passed by the District G
Court dismissing a suit for eviction filed by the landlord against
the tenant. The District Court, sitting as a court of first appeal,
had taken the view, on an appreciation of the evidence, that the
requirement of the premises by the landlord for his residence was
not genuine, but in second appeal the Madhya Pradesh High Court H
88 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.

A reversed this finding and passed a decree for eviction against the
tenant. This Court set aside the judgment of the Madhya Pradesh
High Court on the ground that the finding reached by the District
Court on an appreciation of the evidence that the landlord did not
genuinely require the premises for his residence was a finding of
fact and the Madhya Pradesh High Court had no jurisdiction in
B second appeal to disturb this finding".

In the case on hand unfortunately the lower appellate court before
reversing the finding of the trial court on the issue of bona fide requirement
of the landlady for starting a cloth business failed to read the entire
C evidence and take into consideration all the documents placed before the
trial court. Therefore, it was rightly contended by Dr. Ghosh, learned
Senior Counsel for the respondent, that the High Court was justified in

-
interfering with the finding of the first appellate court. A reading of the
judgment of the lower appellate court leaves no doubt that it has looked
into the contents of the first notice where under the landlady has stated that
D she required the premises for her husband's office and ignored the notice
issued just before the filing of the suit. The lower appellate court has also
failed to give due importance to the fact that the landlady had not taken
any steps to file suit for eviction pursuant to the notice issued on two earlier
occasions and the ground stated in the notice preceding the suit is relevant
E for the purpose of deciding the issue.

The judgments cited by the learned Senior Counsel for the respon-
dent on the scope of Section 100, CPC, are apposite in the circumstances
of this case. In J.B. Sha1111a v. State of Madhya Pradesh & Another, (1988)
Sup. SCC 451, this Court while considering the scope of Section 100, CPC,
F observed thus :

"It will thus be seen that the first appellate court while recording
the finding acted on an assumption not supported by any evidence
and further failed to consider the entire document on the basis of
which the finding was recorded. The High Court was, therefore,
G
justified under Section 100 of the Code of Civil Procedure to set
aside the finding."

In Dilbagrai Punjabi v. Slwrad Chandra, [1988) Supp. SCC 710 again
this Court while considering the scope of section 100, CPC, held as
H follows:-
MEHRUNNISA v. VISHAM KUMARI [K. VENKATASWAMI, J.) 89

"It is true that the High Court while hearing the appeal under A
Section 100 of the Code of Civil Procedure has no jurisdiction to
reappraise the evidence and reverse the conclusion reached by the
first appellate court, but at the same time its power to interfere
with the finding cannot be denied if when the lower appellate court
decides an issue of fact a substantial question of law arises. The B
court is under a duty to examine the entire relevant evidence on
record and if it refuses to consider important evidence having
direct bearing on the disputed issue and the ·error which arises is
of a magnitude that it gives birth to a substantial question of law,
the High Court is fully authorised to set aside the finding."
c
To the same effect, another judgment of this Court in Sundra Naicka
Vadiyar (Dead) by LRs. & Anr. v. Ramaswami A)l)lar (Dead) by His LRs.,
[1995] Supp. 4 SCC 534, this Court observed as follows :-

"A Perusal of the impugned judgment of the High Court shows
that there were good reasons for treating the finding on the D
question of possession recorded by the first two courts to be
vitiated. Apart from the reasons given by the High Court, it appears
· to us that ignoring some of the documents which were vital for
deciding the question of possession also vitiated the finding on the
question of possession recorded by the trial court as well as the E
first appellate court."

Recently also in Kochukakkada Aboobacker (Dead) by LRs and
Others v. Attah Kasim and Others, [1996] 7 SCC 389, this Court again
observed on the scope Af Section 100, CPC, as follows :-
F
"The appellate court had not considered these .documents in a
proper perspective and the effect of these documents on the rights
of the parties. Accordingly, the learned Judge reluctantly had
reconsidered the evidence and, in our view, quite rightly since it
is not a mere appreciation of evidence but drawing inferences from G
the admitted documents. Since proper construction of the docu-
ments and inferences have not legally been drawn by the appellate
court, the High court has gon~ in detail and recorded the finding".

In the light of the pronouncements of this Court and for the reasons
given by the High Court, namely, that the lower appellate court has failed · H
90 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A to take into account document necessary for giving a finding on the issue
of bona fide requirement, we are of the view that we cannot find fault with
the High Court in interfering with the reversing judgment of the lower
appellate court. Accordingly, the appeal fails and it is dismissed. However,
there will be no order as to costs.

B v.s.s. Appeal dismissed.