TMI Blog1974 (4) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... ges the judgment of the High Court in this appeal preferred by special leave. The respondent is the owner of a house situate in Lohia Bazar in the city of Gwalior. The house consists of a shop on the ground floor and residential accommodation on the first floor. 'The respondent is in occupation of the residential accommodation on the first floor since the past few years. The ground floor shop, which may hereinafter for the sake of convenience be referred to as the Lohia Bazar shop, has been in the possession of the appellant as a tenant for the last about thirty years. The appellant carries on business as a dealer in iron and steel materials in this shop. Originally the rent of this shop was ₹ 8/- per month but it was subsequently increased from time to time and ultimately in 1946 it was fixed at ₹ 25/- per month. It appears that towards the end of 1952 the respondent decided to evict the appellant from the Lohia Bazar shop and with that end in view, filed a suit for recovery of possession of Lohia Bazar shop. The respondent claimed that he genuinely required the Lohia Bazar shop for personal use and the Trial Court, accepting this requirement, passed a decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or eviction against the appellant. The Additional District Judge accordingly dismissed the suit by a judgment dated 4th August, 1962. Thereafter, the respondent, having failed in both his attempts to recover possession of the Lohia Bazar shop from the appellant, entered into a lease deed dated 15th September, 1962 with the appellant by which he gave a lease of the Lohia Bazar shop to the appellant for a period of two years with effect from 15th September, 1962 at the rent of ₹ 60/- per month. Though the period of the lease expired on 15th September, 1964, the appellant continued in possession of the Lohia Bazar shop as a monthly tenant of the respondent paying the same rent of ₹ 60/- per month. It appears that some time in 1964-the exact date does not appear from the record-the respondent voluntarily surrendered possession of the Phalke Bazar shop to the landlord and closed down his grocery business. The ap- pellant alleged that the, respondent gave up possession of the, Phalke, Bazar shop to the, landlord in consideration of receipt of premium in cash but this allegation was held not established both by the Trial Court as also by the First Appellate Court. The respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the Court of the Additional District Judge is the final court of fact, we would set out the findings of fact reached by the Additional District Judge in some detail. The Additional District Judge on an appreciation of the evidence came to the following findings. The respondent was about 63 years of age when he filed the suit but that was no ground for saying that he could not bona fide and reasonably think of starting a new business. Though it was stated by the respondent in his evidence that he had in the past carried on business as a dealer in iron and steel materials, that was contradicted by his own witness Chotelal and it was, therefore, evident that the business of dealer in iron and steel materials for which he claimed to require the Lohia Bazar shop, was totally a new business for him. The plea of the respondent was that he wanted to make a humble beginning in this new business but even so he asked for possession of the whole of the Lohia Bazar shop and not merely a portion of it. The respondent had not led any evidence to show that he had arranged for necessary capital to be invested or approached Iron Steel Controller for the required permits or made agreements t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lohia Bazar shop for starting such business. The High Court observed that when the respondent stated in his evidence that he required the Lohia Bazar shop for the purpose of starting business as a dealer in iron and steel materials, there was no cross-examination of the respondent challenging the truth or bona fide of his statement and no attempt was made on behalf of the appellant to show that the respondent was not in a position to start such business, or that he lacked the necessary resources for that purpose, and his statement coupled with the other objective and outward facts must, therefore, be taken as sufficient to establish that he required the Lohia Bazar shop for starting this new business and his requirement was bona fide. The outward and objective facts on which the High Court relied as supporting the assertion of the respondent were : firstly, the respondent had as far back as March 1959 sought to recover possession of the Lohia Bazar shop for the purpose of starting this new business and it was not for the first time in the middle of 1966 that he dishonestly put forward this idea only with a view to securing possession of the Lohia Bazar shop from the appellant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r appellate court is one of law or of mixed law and fact, the High Court can certainly examine its correctness, but if it is purely one of fact, the jurisdiction of the High Court would be barred and it would be beyond the ken of the High Court unless it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or %,as arbitrary, unreasonable or perverse. This position was indeed not disputed by the learned Advocate appearing on behalf of the respondent but his contention was that the. finding of the Additional District Judge in regard to the question of bona fide requirement of Lohia Bazar shop by the respondent was a mixed finding of law and fact and the High Court was, therefore, entitled to examine its correctness, and if it was found to be wrong, interfere with it even while exercising jurisdiction in second appeal. The question which, therefore, arises for consideration is whether the finding of the Additional District Judge that the respondent did not bona fide require the Lohia Bazar shop for the purpose of starting the business of a dealer in iron and steel materials was a pure finding ,of fact or a mixed finding of law and fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords : The District Court considered the evidence for the purpose of ascertaining whether the respondent honestly or in good faith required the premises and held that the respondent failed to establish the case pleaded by him. This finding of the District Court was based on appreciation of evidence and was binding upon the High Court and the High Court had no power to reverse that finding. The Legislature has imposed a restriction upon the jurisdiction of the Court to pass a decree against the tenant in a suit in ejectment by the landlord; and the onus of proving the conditions, on proof of which alone the protection may not be claimed, lies upon the landlord. The burden of proving that he genuinely requires non-residential accommodation within the meaning of section 4(h) therefore lies upon the landlord. Whether in a given case, that burden is discharged by the evidence on the record is a question of fact. It must however be observed that mere assertion by the landlord that he requires for his use the premises in the occupation of his tenant raises no presumption that be genuinely requires the premises for his use. The District Court held that the respondent failed to establis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st prefer to follow the decision in Sarvate T.B.'s case(2) as against the decision in Smt. Kamla Soni's case(C. A. No. 2150 of 1966, decided on 26th September, 1969.) as the former is a decision of a larger Bench than the latter. Moreover, on principle, the view taken in Sarvate T.B.'S case(1) commends itself to us and we think that is the right view. We must, therefore, hold that the finding 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 was a finding of fact and not a finding of mixed law and fact, The question would still remain whether there were proper grounds on which this finding of fact could be interferred with by the High Court. It is now well settled by several decisions of this Court including the decision in Sarvate T.B.'s case(2) and Smt. Kamla Soni's case(1966 M. P. Law Journal 26.) that mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for. the court to determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion takes an inordinately long time in reaching a final conclusion and then also it is uncertain as to how it will end and with what result and unless the respondent could be reasonably sure that be would within a short time be able to obtain possession of the Lohia Bazar shop and start a new business, it would be too much to expect from him that lie should make preparations for starting the new business. Indeed from a commercial and practical point of view, it would be foolish on his part to make arrangements for investment of capital, obtaining of permits and receipt of stock of iron and steel materials when he would not know whether he would at all be able to get possession of the Lohia Bazar shop, and if so, when and after how many years. So also we do not see how the respondent could possibly ask for possession of a portion of the Lohia Bazar shop. The Lohia Bazar shop was given on rent under a single tenancy and even if the requirement of the respondent extended only to a portion of this shop, he had no other option but to terminate the tenancy and seek to recover. Possession of the: whole shop. The Additional District judge was, therefore, clearly in error in relying on thes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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