Madhya Pradesh High Court
Ram Charan Singh vs Brij Bhushan Pandey And Ors. on 2 August, 1996
Equivalent citations: 1997(1)MPLJ565, 1997 A I H C 847, (1997) 2 RENCJ 329, (1996) 2 RENCR 382, (1997) 2 RENTLR 146, (1998) 3 SCT 75, (1997) 1 MPLJ 565
ORDER T.S. Doabia, J.
1. This Second Appeal has been preferred by the plaintiff landlord. He succeeded in convincing the Trial Court that Brij Bhushan, respondent tenant had sublet the premises to respondent Sevapuri who has since died and is represented by his legal heirs. This finding was reversed by the First Appellate Court. This is how this appeal has come to be filed in this Court.
2. The brief facts for the purpose of disposal of this appeal be noticed :
A suit was filed in the year 1968. The plea taken was that the plaintiff appellant required the premises for his personal use. A plea was also taken that Brijbhushan, the tenant had sublet the premises to Sevapuri. The Trial Court as noticed above came to the conclusion that eviction on the basis of grounds provided in section 12(1)(b) of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as 1961 Act) stands established. The landlord was however non-suited with regard to the ground stipulated in section 12(1)(e) of the Act. Against the decree of eviction an appeal was preferred. The appellant wanted to urge before the appellate Court the ground that the Trial Court had wrongly appreciated the case vis-a-vis bona fide need. This plea was not permitted to be taken because the Court below came to the conclusion that a cross appeal had not been preferred. It further came to the conclusion that the plea of subletting had not been established. It accepted the version put forward by the sub-tenant that he was inducted in the premises in pursuance of an agreement to sell. The plea taken by the respondent Sevapuri in his written statement was to the effect that there was an oral agreement to sell the property in dispute. The sale consideration was said to be Rs. 7,000/-. It was further pleaded that a sum of Rs. 4,500/- was duly paid. This payment is said to have been made on 27th November, 1966, in the presence of Baburam, Laxmichand and Rafique. In para-2 of the written statement it was elaborated that the plaintiff is a close friend of one Ashajit who is related to respondent No. 2 Sevapuri. It was, therefore not thought necessary to have a written receipt. It was elaborated that the arrangement was that till a sale deed is executed Sevapuri would occupy the premises as tenant and he along with respondent No. 1 would keep on paying monthly rent at the rate of Rs. 35/-. It was accordingly pleaded that Sevapuri respondent No. 2 was inducted on the basis of the intention so expressed by the appellant landlord. With a view to further support the plea that there was an agreement to sell, it was pleaded that the plaintiff had written a letter asking this respondent Sevapuri to pay the balance of the amount and also pay the uptodate rent.
3. So the plea which is being taken by Sevapuri is that he was inducted in the premises in pursuance of an agreement to sell. He accordingly pleaded that the question of sub-letting does not arise. It had also been contended by Sevapuri that he had been inducted in pursuance of oral agreement which stand proved by Exhibit D-1. It was accordingly pleaded that the subletting should be taken to have come into existence with the consent of the landlord.
4. As indicated above, the Trial Court did not place reliance on exhibit D-1. The first appellate Court has however placed reliance on the above exhibit. It concluded that there was an agreement to sell and that Sevapuri who is now represented by his legal heirs was inducted by the appellant himself.
5. So far as main tenant Brijbhushan is concerned, he had submitted before the First Appellate Court that he is ready and willing to vacate the premises under his occupation. This plea was not taken note of by the Court below. The stand taken by the counsel for Brijbhushan in this Court is that there is no objection to a decree of eviction being passed against him. It has been stated that this tenant has been allotted a Government Quarter and therefore a ground has become available to the appellant to seek eviction under section 12(1) of the Act. In this view of the matter the appellant would be entitled to a decree of eviction so far as Brijbhushan is concerned.
6. The contention raised by Sevapuri be now examined. The sheet anchor of the argument is exhibit D-1. An examination of exhibit D-1 indicates that the appellant had asked the respondent Sevapuri to pay the rent and also to abide by the understanding arrived at between them. It may further be seen that exhibit D-1 does not indicate as to regarding which premises this writing pertains to. With a view to examine this aspect of the matter the statement of the parties have been perused. Ramcharan in his statement has stated in categoric terms that this writing pertains to another house which is under the occupation of Sevapuri. He admits that he had sent a letter exhibit D-1. This is so indicated in para 5 of his statement (cross examination). However in para-6 Ramcharan has elaborated that there is a joint family house. It is this house which is said to be under the tenancy of Sevapuri. He is in occupation of the first storey. In para 7 of the statement (cross examination) he has stated in categoric terms that exhibit D-1 pertains to the house which is under the occupation of Sevapuri as a tenant. He stated in categoric terms that this writing exhibit D-1 does not pertain to the house in question.
7. The evidence of defendant in this regard be also seen. In para-8 of his statement, he stated that exhibit D-1 pertains to the house in question and that he had never been a tenant in any other house. He had stated that he was a tenant in the accommodation in question. Two other persons who are said to be witnesses to oral transaction have also appeared in the witness box. With a view to support the theory regarding oral agreement, they have stated that there was a talk regarding the sale of property. Baburam DW-1 stated that there was a talk with regard to the house located at Kampoo. He stated that he has seen the house but he had not taken note of its accommodation.
8. It be seen that the trial Court appreciated the facts and reached a correct conclusion. The trial Court had the advantage of recording the evidence and noticing the demeanour of the witnesses. In such a situation the view is that the first appellate court should be slow to interfere with the findings recorded by the trial Court. There is limitation on the power of the appellate Court to dislodge finding of fact, recorded by the trial Court on reappreciation of oral evidence. The elaboration of the principle is found in 'The Supreme Court Practice' (white book 1988 Edn. Vol. II). This is relevant and may be noticed :
"Great weight is due to the decision of a Judge of first instance whenever in a conflict of testimony the demeanour and manner of witnesses who have been seen and heard by him are material elements in the consideration of the truthfulness of these statements. It was further noticed that in case parties seek interference at the hands of Court of appeal then the Court cannot excuse itself from the task of weighing conflicting evidence and drawing its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.
The Higher Court ought not to take the responsibility of reversing conclusions so arrived at merely as the result of their own comparisons and criticisms of the witnesses and of their view of the probabilities of the case...."
"...But while the Court of appeal is always reluctant to reject a finding by a Judge of the specific or primary facts deposed to by the witnesses, especially when the finding is based on the credibility or hearing of a witness, it is willing to form an independent opinion upon the proper inference to be drawn from it....."
9. In Sarju Prashad v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120 B. K. Mukherjee, J. has stated the principle with regard to the appreciation of evidence as under at page 121 :-
"In such cases the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact."
10. The speech of Lord Thankerton in Watt v. Thomas, 1947 Appeal Cases 484 again brings out the principles on the subject and it is useful to quote the same.
"I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus : (1) Where a question of fact has been tried by a Judge an appellate Court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge's conclusion. (2) The appellate Court may take the view that without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate Court either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence may be satisfied that he has not taken proper advantage of his having seen or heard the witnesses and the matter will then become at large for the appellate Court."
11. The position may however be different in cases where the credibility or reliability of a witness is not in question and what is required to be done is to draw a proper inference from proved facts. Lord Reid in Benimax v. Austin Moto Co. Ltd., (1955) 2 WLR 418 at page 422 observed :
"But in cases where there is no question of the credibility or reliability of any witness and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal Court is generally in as good a position to evaluate the evidence as the trial Court and ought not to shrink from that task though it ought of course, to give a weight to his opinion."
12. In the above case, Viscount Simonds pointed out the need to keep distinction between a finding on a specific fact on one hand and a finding which is an inference from the proved facts on the other. According to him there is a distinction between what the term 'perception' and 'evaluation'. The limitation on the power of the Court to come to conclusion on its own after reappreciation of evidence is clearly confined to the former. It is observed as under :-
"A Judge sitting without a jury would fall short of his duty if he did not first find the facts and then draw from them the inference of fact whether or not the defendant had been negligent. This is a simple illustration of a process in which it may often be difficult to say what is simple fact and what is inference from fact, or to repeat what I/you actually perceive by the five senses. It is a datum of experience as distinct from a conclusion."
"It is obvious that in almost all cases tried by a Judge without a jury an appellate Court, which has not had an opportunity of seeing the witnesses must assess his conclusions of fact because it cannot tell on what grounds he reached them and what impression the various witnesses made on him."
13. In the light of the above legal situations, I am of the view that the Court below should not have upset findings recorded by the trial Court. Exhibit D-1 is silent. It is difficult to conclude that exhibit D-1 pertains to the house in question. Two of the witnesses to the oral transaction are silent as to the description of the house. Even otherwise it is difficult to conclude that a tenant in possession would give up his possession to accommodate the landlord. As such exhibit D-1 does not come to the rescue of Sevapuri and his heirs. Sevapuri in his statement (Para-6) stated that he came to occupy the premises in 1964. This year would not fit in with the date i.e. 27-11-1966 as given in Exhibit D-1. The fact that Sevapuri took no step to enforce the oral agreement can also be not ignored. The findings recorded by the Court below is accordingly reversed and the finding recorded by the trial Court is restored. The heirs of Sevapuri would be liable to eviction being sub-tenant inducted without the consent of the landlord.
14. The plea regarding bona fide need may also be examined. The statement of the landlord brings out that he is residing in the ancestral house with his brothers. He has stated that there was a partition of the joint family property. Only one room is with the appellant. According to him, there are nine members in his family and all of them are staying in one room. He has further stated that the joint family house has since been partitioned and the requisite entries regarding this stand incorporated in the Municipal Record.
15. The learned counsel for the respondent has argued that as a cross-appeal was not preferred by the landlord before the Court below challenging the finding vis-a-vis bona fide need, the First Appellate Court has rightly refused to look into this aspect of the matter. On the other hand the argument raised by the Learned Counsel for the appellant is that the Court below had erred in not examining the issue regarding bona fide need. Reliance has been placed on the provision of Order 41, Rule 22 of the Code of Civil Procedure. According to him he could have supported the judgment by contending that finding on this issue has been wrongly recorded by the trial Court.
16. It would be apt to notice the provision of Order 41, Rule 22 at this stage :-
"Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour) and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow."
17. It be seen that the word "but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour" have been added with a purpose by Amendment Act 104 of 1976. As to why this amendment was made is apparent from the objects and reasons. These objects and reasons be also taken note of.
"Clause 90, sub-clause (xi) (now Clause xi). - Rule 22 gives two distinct rights of the respondent in appeal. The first is the right of upholding the decree of the court of first instance on any of the grounds on which that court decided against him, and the second right is that of taking any cross-objection to the decree which the respondent might have taken by way of appeal. In the first case the respondent supports the decree and in the second case he attacks the decree. The language of the rule, however, requires some modification because a person cannot support a decree on a ground decided against him. What is meant is that he may support the decree by asserting that the matters decided against him should have been decided in ms favour. The rule is being amended to make it clear.
An Explanation is also being added to Rule. 22 empowering the respondent to file cross-objection in respect to a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour."
18. A perusal of the objects and reasons which led to the amendment being made in Order 41, Rule 22 makes it apparent that the respondent/plaintiff could urge the ground of bona fide need even though he had not filed specific cross objections. As a matter of fact such was the view expressed even earlier to the amendment made in the year 1976. Reference in this regard be made to the decision of the Supreme Court reported as Virdhachalam Pillai v. Chaldeam Syrian Bank Ltd., Trichur, AIR 1964 SC 1425. It was held that the respondent is entitled to contend that the finding recorded against him by the Court below is wrong and can raise argument in order to support the decree that has been passed against the appellant. As such the objection raised by the learned counsel for the respondent is found to be without merit. Another objection has been taken in this appeal. According to the learned counsel on account of the main tenant having offered to vacate and the premises having become available, the need of the landlord should have been held to have been satisfied. I am of the view that this argument cannot be accepted. Taking into consideration the number of family members of the appellant/plaintiff and the accommodation regarding which he was seeking eviction, it cannot be said that the need of the landlord would be met, if he shifts to the first floor. The law is well settled.
19. The genuineness of the need is to be seen and this need is never static. It varies from person to person, place to place and from profession to profession. The meaning to be given to the term need or requirement should neither be artificially extended nor its language should be unduly restricted as such a course would defeat the very purpose of the Act. At the same time the proposition that the landlord is the sole arbitrator of his need is not be accepted as the only view on the matter. There is no doubt that the subjective choice exercised in a reasonable manner by the landlord should normally be respected by the Court. Where the need for accommodation is proved the court is not to dictate the landlord to continue in the same premises. The term bona fide represents something more than a desire or wish to occupy. It is quite clear. It docs not convey the idea of absolute necessity in the sense that there would be no other possible alternative for the landlord for meeting his requirement except by occupying his property. The Rent Controlling Legislation is primarily meant for protecting the tenants against the tactics of greedy and unscrupulous landlords who are taking advantage of the difficulties and helplessness of the tenants and extract exorbitant rents from them. It docs not appear to be designed to penalise the owners by enabling them from occupying theft own property when they bona fide require it. There is adequate provision in the Act safeguarding against a possible abuse of the privilege or the right of eviction on their part.
20. In Rekhachand Doorgar v. J.R.D.'Cruz, AIR 1923 Cal 223 Buckland J., observed that "I do not think it is enough that a plaintiff in order to defend a plea under the Calcutta Rent Act should merely say that he desires the premises bona fide for his occupation. The word in the Act is not desires but requires. This is my opinion involved something more than a mere wish and it involves an element of need to some extent at least."
21. In this case landlord appellant has a family of nine persons. They are all staying in one room. They want to live in a better accommodation. The tenant to some extent understood the need of the landlord and has offered to vacate. Sevapuri took plea of an oral agreement to sell. This was found to be unestablished by the trial Court. I find that the view taken by the trial Court is more plausible.
22. This appeal is allowed. A judgment and decree passed by the Court below is set aside and that of trial Court is restored. The appellant landlord is held entitled to a decree of eviction. The heirs of Sevapuri are allowed two months time to vacate the premises. This is subject to the condition that they would deposit the uptodate arrears and also give an undertaking that they would hand over the vacant possession of the premises to the landlord. Let the requisite undertaking be given within a period of two weeks from today.
There would be no order as to costs.