Rajasthan High Court - Jaipur
Shakuntala Devi vs Leeladhar Agrawal on 18 December, 2001
JUDGMENT Madam, J.
1. This second appeal arises out of judgment dt. 21.3.2001 of ADJ No. 2 Kota in CRA No. 17/2000 affirming the decree dt. 21.1.99 of the Civil Judge (JD) South Kota in Civil Suit No. 763/92.
2. The facts, shorn in details are that Leeladhar Agrawal Advocate (respondent No. 1) (plaintiff) instituted a suit for eviction of shop situated at Main Road Kota Junction on the grounds of (a) bonafide need, (b) sub tenancy and (c) public nuisance. The suit shop was admittedly rented out at Rs. 500/- per month to the tenant appellant (Shakuntala Devi). Except the tenancy and monthly rent, all plaint averments as to the aforesaid trioka grounds of eviction were denied by the tenant in her written statement. Nine issues were framed on the basis of the pleadings by the trial Court. To prove his case, plaintiff examined himself beside other witnesses namely; Mohanlal (PW2), Dalip Sharma (PW3), Om Singh (PW 4) and Pyara Singh (PW 5) and got seven documents exhibited including Rent Note, family settlement, IT return, notice, postal receipt, A.D. receipt, (Ex. 1A to Ex. 7), whereas defendant (tenant) examined herself so also Ramkumar (DW2), Jagdish Prasad (DW 3) and Devdutt (PW 4) and got only two documents (invitation card & photo) exhibited. The trial Court decided issue No. 4 as to the sub tenancy against the landlord (plaintiff). Issue Nos. 5,6, & 8 - burden of proof of which was on the defendant-were decided against the tenant as she failed to prove the same. Thus, on the basis of findings arrived at on the Issue Nos. 1,2,3,8 & 9 in favour of the plaintiff, the trial Court decreed the suit for eviction of the defendant tenant only on the grounds of bonafide need, comparative hardship, partial eviction and nuisance. Against which, the tenant preferred an appeal before the first appellate Court but the first appeal was also dismissed affirming the decree of eviction by the impugned judgment. Hence, this second appeal against the concurrent findings.
3. Though the learned counsel for the appellant proposed in memo of second appeal as many as 14 questions describing them as substantial one being involved but on the other hand, learned counsel for the respondent vociferously contended that the questions proposed by the appellant in his appeal are neither involved nor they are substantial in the light of the provisions of Section 100 CPC inasmuch as in view of the concurrent findings of fact of both the Courts below, this appeal deserves to be dismissed having involved no substantial question of law much less any question of law with a view to invoke jurisdiction Under Section 100 CPC.
4. At the threshold, I may point out that the memo of second appeal suffer from a serious infirmity. The substantial questions of law proposed in the memo of second appeal are not properly formulated and they are, as if, grounds, urged or incorporated.
5. Having heard the learned counsel for the parties and considered their rival contentions and further carefully analysed the concurrent findings of facts arrived at by two courts below, though I reframe following questions for consideration while hearing this second appeal but at this juncture, I restrain from saying as to whether these questions of law are substantial, or are involved for admitting this second appeal within the purview of Section 100 CPC.
(1) Whether the suit shop is an HUF property and the plaintiff being coparcener could institute suit for eviction on the ground of personal bonafide need of himself or whether in that suit, personal need of other coparcener as to the suit shop could be considered or not?
(2) Whether the plaintiff is not an owner of the suit shop being HUF property or being its receiver of the rent for the suit shop could bring the suit against the tenant on all the grounds set forth in Section 13(1) of the Act except on the ground of bonafide need Under Section 13(1)(h)?
(3) Whether the findings of fact concurrently arrived at by the Courts below either on issue of comparative hardship of both the parties or bonafide need of the plaintiff are based on consideration of the case beyond pleading, proof or evidence or without considering admissibility of document (ExA2) which pertained to the partial partition?
(4) Whether the plaintiff has brought the eviction suit only for a part of the rented shop as pleaded in the plaint under description of suit property which is different than described in rent note (Ex.A. 1)?
(5) Whether failure on the part of plaintiff to reply contents of application seeking amendment allowed to the written statement does mean failure to rebut the defendant's evidence as to the factum allowed to be amended under Order 6 Rule 17 CPC and whether this significant aspect is completely missing of consideration in the impugned concurrent findings of fact on comparative hardship and bonafide need?
(6) Whether first appellate Court failed to consider all grounds taken in memo of first appeal and argued during hearing by a complete go-bye and whether it resulted in miscarriage of justice warranting interference in exercise of jurisdiction Under Section 100 CPC?
6. First of all, I must have a careful look and analysis of the decisions cited at the bar as to the scope of interference by this Court in exercise of its jurisdiction Under Section 100 CPC and the application of the dictum of law laid down therein to the facts of the present case.
7. Mr. Siddique for the appellant cited decisions in Kondiba Dagadu Kadam v. Savitri Sopan Gujar (1), Santosh Hazari v. Purshottam Tiwari (2), K.C. Mathew & Sons v. A. Sulalkha Beevi (3) and Nirmala v. Hari Singh (4).
8. In Nirmala v. Hari Singh (supra) while considering Order 23, Rule 1 (3) CPC, in a case of withdrawal of suit but subsequent filing of fresh suit, the Himachal Pradesh High Court held that fresh suit is not barred if suit is based on a different cause of action though in respect of same property. On another question as to the inclusion of affidavit in Section 3 of the Evidence Act, it has been held that affidavits are not included as evidence unless law specifically permits for proof of anything by affidavit. As regards interference by the High Court Under Section 100 CPC, it has been held that findings of fact can be interfered with only if relevant material is no considered or a finding is recorded on inadmissible evidence.
9. In M/s. K.C. Mathew & Sons (supra) the question whether tenant is entitled to protection of Land Reforms Act was held by the Apex Court as not substantial question of law, which is that question which has to be resolved for deciding the main issues involved in suit and the impugned judgment was set aside merely because it was bereft of reference to substantial question of law.
10. In Kondiba Dagadu Kadam v. Savitribai Sopan (supra) which was cited by both the parties, but if carefully read over, it goes against the appellant, because it is a case which prescribes as to what can be termed as substantial question of law, inasmuch as it has also been held that in a second appeal relief cannot be granted merely on equitable grounds and further more concurrent finding of facts howsoever erroneous cannot be interfered with. It has inter-alia been held that (a) the right of appeal is neither a natural nor an inherent right attached to the litigation; (b) being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time; (b) the substantial question of law has to be distinguished from a substantial question of fact; (c) it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact being the first appellate Court; (d) even where the lower appellate court rejected the witnesses accepted by the trial court, it is no ground for interference in second appeal once it is found that the appellate court has given satisfactory reasons for doing so; (e) in a case where two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal because adopting any other approach is not permissible; (f) the High Court can substitute its opinion for that of the first appellate court only when it finds that the conclusions drawn by the lower appellate court are erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.
11. The Apex Court further held that (a) where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law in second appeal; (b) mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law; (c) where it if found that the first appellate court has assumed jurisdiction which did not vest in it, is can be adjudicated in second appeal, treating it as substantial question of law; and (d) where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal.
12. It was a case where suit for specific performance was dismissed by the trial Court but reversing the dismissal of the suit and allowing the plaintiff's appeal the first appellate court granted the relief of specific performance in favour of the plaintiff but the learned Single Judge of the High Court had only appreciated the evidence but the Apex Court observed that the findings of the first appellate court being based upon appreciation of evidence cannot be termed to be either perverse or based upon no evidence and being finding of the last court on facts were binding on the parties.
13. According to the Apex Court it was a case where the provisions of Section 100 CPC had wrongly been applied by the High Court and the findings of fact of the first appellate court disturbed without adhering to the principles of and the limitations imposed by Section 100 CPC. Ultimately the Apex Court held that no question of law muchless any substantial question, was involved in the second appeal requiring interference by the High Court in exercise of its jurisdiction Under Section 100 CPC, and accordingly the order of the learned Single Judge holding it to be against the settled norms and contrary to the mandate to Section 100 CPC was set aside.
14. Next decision cited is Santosh Hazari v. Purshottam Tiwari (supra) where in a suit for declaration of title and recovery of possession the defendant raised plea of adverse possession the suit was decreed but was reversed by the first appellate court and second appeal was dismissed in limine hence the Apex Court held that it was not proper because the High Court ought to have given opportunity to appellant to frame substantial question of law or the Court should have framed substantial question of law and decide second appeal and hence the matter was remitted to the High Court for decision on merit. According to the Apex Court it was a case where the memo of second appeal filed by the plaintiff before the High Court suffered from a serious infirmity. Therefore, the Apex Court held that an obligation is cast on the appellant to precisely state in the memo of appeal, the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court.
15. It has categorically been held that the High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court, and the respondent is at liberty to show that the question formulated by the High Court was not involved. The Apex Court then held as under:-
"In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied : (1) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction."
16. As held in Santosh Hazari v. Purshottam Tiwari (supra), the High Court cannot hear a second appeal without formulating the substantial question of law involved in the appeal otherwise it being illegal is in abnegation of the duty cast on Court and the existence of substantial question of law is the sine quo non for the exercise of the jurisdiction Under Section 100 CPC (See Kshitish Chandra v. Santosh Purkait (5), Panchugopal Barua v. Umesh Goswami (6) and Kandila Dagadu Kadam v. Savitribai Sopan (7), 1 must quote as under:-
"12. The phrase 'substantial question of law.', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying 'question of law', means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of 'substantial question of law' by suffixing the words 'of general importance' as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law in which a second appeal shall be heard need not necessarily be a substantial question of law of general importance."
17. While lending support of the dictum of law in Santosh Hazari (supra), I reiterate that to be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned, and further to be a question of law involving in the case, there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the Courts of facts. As a matter of law, if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on surmises or conjectures, the appellate Court is entitled to interfere with the finding of fact (See Madhu Sudan Das v. Narayani Bai (8).
18. However, if there is conflict of oral evidence of the parties on any issue and the decision hinges upon the credibility of witnesses, then only upon a peculiar situation as to the evidence of a particular witness having escaped notice of the trial Court or only if there is a sufficient balance of improbability to displace his opinion the first appellate Court may interfere with finding of the trial Court on a question of fact (See Sarju Prasad v. Jwaleshwari PN Singh (9),
19. Once the first appellate Court is required to come into close quarters with the conclusions drawn by the trial Court and then to assign its own reasons while reversing a finding of fact and for arriving at a different finding. Thus, undoubledly the first appellate Court continues as before to be a final Court of facts, pure findings of fact remain immune from challenge before the High Court in second appeal. That being so, the first appellate Court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court are now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even no questions of law unless such question of law be a substantial one.
20. Here let me have a look at the plaint and written statement. In para 1 of the plaint which was not denied in written statement of the tenant (appellant), the rented premises has been described to be one shop known as "Teendari" situated at Main Road Kota Junction' which has been rented out to the defendant at Rs. 500/- per month.
21. As per plaint the plaintiff required suit shop because the shop adjacent to the suit shop (in which he has been carrying on his legal profession of advocacy) having only 7 ft. width has been inadequate in view of increase in his profession for which he required sufficient space to accommodate not only his 3-4 junior advocates, staff members (typist and advocate clerk) but also incoming litigants approx. 15 per day) to consult him and his office of an advocate so according to him, the plaintiff has bonafidely needed suit shop with a view to enhance his office situated adjacent to the rented shop by converting into it a big hall to suffice his felt necessity.
22. In her amended written statement, the tenant appellant specifically contended that the suit shop was taken on rent at Rs. 250/- per month on 2.9.77 and this monthly rent was raised to Rs. 500/- on 1.1.88 in continuation to her tenancy. The appellant tenant produced certified copy of Ex. 1A which is rent note admittedly executed by her on 2.9.77 and as per which as averred in para preceding to para (1), the suit shop included the tenancy of the portion of Chabutri and Patan (platform) situated just ahead the suit shop itself.
23. As regards alternative accommodation available to the plaintiff, the tenant (appellant) in her amended written statement at paras 18 to 20, inter-alia urged that on 20.7.91 the plaintiff has started an advocate office at his own residential house situated at Vigyan Nagar Kota so also in his another house located at Masjid Street Bhimganj Mandi, Kota having a room of 12x10 ft. in size, in addition to his an office owned at Ghantaghar Main Road. To prove these facts, issue No. 8 was framed; onus of proof was laid on the tenant, to which she failed.
24. In his evidence the plaintiff denied to have his office being started at his residential house of Vigyan Nagar so also at Ghantaghar. Once description of the suit shop as pleaded in the plaint and mentioned in the rent note Ex. 1A, has not been denied rather admitted in her amended written statement by the tenant who further could not have pleaded otherwise beyond the contents of the rent note Ex. 1A executed by her, 1 am of the considered view that it makes no difference even if there remained indifference in the description of the suit rented shop either in the pleadings or evidence or in the rent note itself and such an indifference would not render the plaintiff disentitled for eviction of the suit shop by holding it to be for partly eviction sought in the suit, itself inasmuch as it cannot be held in the absence of specific pleading of the tenant that the suit was for eviction of a part of suit shop or for a suit shop excluding a chabutri & patan (platform) situated just ahead it in view of the pleading, proof and evidence, I find that the plaintiff has brought the present suit for eviction of the tenant from suit shop including its annexed chabutri & patan situated just ahead it.
25. Similarly, there is no pleading either in the written statement or the plaint that the suit shop was an HUF property or it having come into the share of the plaintiff as its coparcener nor it has been a case on behalf of the tenant objecting or denying the title of the plaintiff over the suit shop either as landlord or owner as coparcener, in her any of the pleadings or evidence, nor it has been her case that she was a tenant of an HUF property having coparcenership of the plaintiff nor she ever pleaded or objected that the plaintiff was not the landlord of the suit shop, inasmuch as she never denied to have executed rent note Ex. 1A which established the tenancy and her relationship with the plaintiff as tenant and landlord w.e.f. 1977 @ Rs. 250/- per month and w.e.f. 1.1.1988 @ Rs. 500/- per month. Similarly, it has never been her case even by amendment of her pleading that she has been paying monthly rent @ Rs. 500/- to the plaintiff as a Receiver or Representative being coparcener of the suit shop which was either HUF property or otherwise. Merely because the plaintiff has adduced in evidence a family settlement (Ex. 2), the tenant cannot be allowed to raise an issue as to the tenancy over the suit shop at the instance of the plaintiff as coparcener.
26. The suitability of alternative accommodation has to be seen from the convenience of the landlord and his family members and on the basis of the totality of the circumstances including their profession, vocation, style of living, habits and background. The question whether the landlord has any other reasonable suitable residential accommodation is a question intermixed with issue as to be bonafide necessity. Whether other accommodation is more suitable than the suit premises, would not solely depend upon pleadings or non-disclosure by the landlord. Thus the landlord having another accommodation would not be fatal to the eviction proceedings if both the parties place materials on record.
27. Similarly if the landlord wishes to live with comfort in a house of his own the land does not command or compel him to squeeze himself tightly into lesser premises or unsuitable premises, protecting the tenant's occupancy. In the instant case, there have been concurrent findings arrived at by both the courts below in favour of the plaintiff that the plaintiff has bonafidely needed the suit shop with a view to enhance his office situated adjacent to the rented shop by converting into a big hall to suffice his felt necessity as disclosed in his pleadings and proved in evidence on record. The plaintiff landlord by his profession is a practising advocate and his clients and litigants usually visiting or likely to visit his office, know where their advocate would be easily approached and available. The plaintiff's office extension whereof is intended by seeking eviction of the suit shop in occupancy of the tenancy, is very well known having acquaintances being also amiliarity with area of market nearer to the Kota Junction (Railway) and environment suitable to them. In my considered opinion, even if there may be case of the tenant that the landlord is having alternative accommodation at his residential house to suffice his need felt in the case, though the tenant failed to prove such a case here, but the alleged availability of the Vigyan Nagar situated in a residential locality, is not of any relevance or germane to determining the need and bonafide of the necessity of the landlord. Thus, the premises at Vigyan Nagar cannot be said to be reasonably suitable alternative accommodation.
28. Further I may reiterate that the question of bonafide personal necessity is essentially a question of fact on which both the two courts below have concurrently held against the appellant. Weighing the present use of the suit premises by the tenant and the need for its use by the landlord, the trial Court held that the balance for weighing the comparative hardship titled in favour of the landlord. Such a finding has been accepted by the appellate Court. The finding in my view, being based on admissible evidence and not erroneous and not contrary to the mandatory provision of law applicable or settled by the Apex Court, does not suffer from any serious infirmity muchless any illegality. There are no convincing assertions on behalf of the tenant against the concurrent findings, which in my considered view, do not at all warrant any interference by invoking jurisdiction of this Court Under Section 100 CPC, because no substantial question of law arises for consideration requiring admission to hearing and since I am satisfied that the case does not involve any substantial question of law, worth admitting this second appeal to hearing, there is no requirement to formulate question before deciding the same. The questions framed and proposed by the tenant (appellant) in her memo of appeal stating them as substantial questions of law, which as opined above are not properly formulated on behalf of the tenant, and which, in my considered view, cannot be held or termed as substantial muchless questions of law. Moreover even if the findings of fact reached by the courts below are against the weight of evidence or not, such is a question of fact because it will remain in the realm of appreciation of evidence and such a question does not project any question of law muchless any substantial question of law to upset such a finding of fact. The findings arrived at by both the courts below on the issues of bonafide need, comparative hardship, partial eviction and nuisance, since, in my considered opinion, are well sustained on record cannot be interfered with by this Court in second appeal, because of the reason also that it is not open for this Court to reappreciate the evidence rendering conclusion of facts with a view to substitute its own independent conclusions that too on the assertions made in this second appeal, referred to and analysed above. The substitution of conclusions by reappreciation of evidence is patently erroneous in law and cannot be sustained. Thus viewed from this angle as well, I do not find any merit in any of the contentions of the appellant to invoke jurisdiction of this Court Under Section 100 CPC.
29. Resultantly, this second appeal is dismissed without any order as to costs. The judgment & decree dated 21.3 2001 of the ADJ No. 2, Kola affirming the decree granted by the trial Court (supra) on 21.1.1999 are upheld.