Bhagirath Prasad And Others vs Avinash Bihari Mishra

This second appeal has been preferred under Section 100 of Civil Procedure Code by the appellants/defendants against the judgement and decree dated 21.09.2017 passed in Civil Appeal no. 64A/2016 by Third Additional District Judge, Gwalior, whereby the judgment and decree dated 2.7.2016 passed by Thirteenth Civil Judge Class-2, Gwalior, in Civil Suit No. 470071-A/2014 (Avinash Bihari vs. Bhagirath Prasad Rathore) has been set aside and decree of eviction has been passed in favour of the respondent/plaintiff.

The respondent/plaintiff filed a suit against appellants under Sections 12(1)(a), 12(1)(e) and 12(1)(f) of the MP Accommodation Control Act, 1961 (for brevity, the 'Act'). The Trial Court dismissed the suit under Sections 12(1)(a), 12(1)(e) and 12(1)(f) of the Act. Against which, civil appeal was filed and the First Appellate Court though dismissed the suit under Section 12(1)(a) of the Act, but decreed the suit under Sections 12(1)(e) and 12(1)(f) of the Act. Feeling aggrieved thereby, the appellants/defendants have preferred this second appeal.

Learned counsel for the appellants contended that the judgment and decree passed by the First Appellate Court is contrary to the documents and evidence available on record. From the pleadings and documentary evidence adduced by the plaintiff, it is evident that the property in dispute was given on rent as an open plot to the appellants/defendants and the defendants with the help of traders and government grant had constructed the house over the said plot and were occupying the same, thus no vacant possession of the house could be given and the First Appellate Court has committed error in law while passing the decree of eviction. It is further contended that the First Appellate Court has erred in ignoring the conduct of the parties. The evidence of the parties has not been properly appreciated. The Appellate Court has erred in passing the decree under Section 12(1)(e) of the Act on the basis of pleadings which were not proved by the plaintiff. The plaintiff is having suitable alternative accommodation. Therefore, the judgment and decree passed by the First Appellate Court is liable to be set aside.

On the contrary, learned senior counsel appearing on behalf of the respondent/plaintiff has submitted that the First Appellate Court has rightly passed the judgment and decree giving detailed reasons. He submitted that the findings given by the Appellate Court being final Court of fact are not questionable unless suffer from legal infirmity. In the present case, composite need of the plaintiff has been proved. No substantial question of law arises in the appeal filed by the appellants/defendants and the same is liable to be dismissed.

Heard learned counsel appearing for the parties and perused the record.

Section 100 of the Code of Civil Procedure reads as under:-

"100. Second Appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex-parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) the appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."

As per section 12(1)(e) of MP Accommodation Control Act, the accommodation let for residential purposes is required for bonafide need by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held and that the landlord or such person, who has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned, may get the suit property vacated.

In Kashibai vs. Parwatibai [(1995) 6 SCC 213] , the Hon'ble Apex Court has observed that this Court has no jurisdiction to entertain the second appeal on the ground of erroneous finding of fact based on appreciation of relevant evidence.

In Padmashree S.N. Swamy Vs.Smt. Gowramma, [AIR 1993 Kant 208], it was held that finding of fact recorded by the first appellate court cannot be interfered with in second appeal unless perverse.

In Union of India Vs. Ibrahim Uddin, [(2012) 8 SCC 148], it has been reiterated by Hon'ble Apex Court that existence of a substantial question of law is sine-qua-non for the exercise of jurisdiction under the provisions of section 100 of the Code. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence .

The only question before the trial Court was as to whether the plaintiff/landlord wanted the suit premises for the bonafide requirement and this issue does not give rise to a sustantial question of law, rather this issue could only be decided by appreciation of evidence and it was well established by the evidence of the plaintiff that the plaintiff/respondent is having bonafide requirement of the disputed premises.

This Court is not in a position to reverse the finding of facts recorded by the first appellate Court on the issue of non-existence of bonafide need of the respondent/plaintiff for the suit accommodation. In case of Guruvachan Kaur Vs. Salikram [(2010) 15 SCC 530], the Hon'ble Apex Court has held as under -

"It is settled law that in exercise of power under Section 100 of the Code of Civil Proceudre, the High Court in second appeal cannot interfere with finding of fact recorded by first Appellate Court which is final court of fact, unless the same is found to be perverse."

It is well settled in Premkumar vs. Kanahyalal [2000(2) MPWN 4] that in eviction suit choice of the owner should be honoured. Similarly in Raghvendra Kumar vs. Firm Prem Machinery and Company [AIR 2000 SC 534], it is observed that the owner is the best judge of his necessity. The appellant/defendant has been failed to prove that alternative accommodation is available with the plaintiff.

In the present case, as discussed above, the bonafide need is proved to the hilt and it is also proved that no suitable alternative accommodation is available as per the need of plaintiff/respondent. Thus, no substantial question arises in this appeal warranting interference in the findings arrived at by the First Appellate Court and the appeal deserves to be dismissed.

Consequently, this appeal does not involve any substantial question of law and the same being devoid of such question, deserves to be and is hereby dismissed. There shall be no order as to costs.