Jammu & Kashmir High Court
Surinder Pal vs Narinder Khajuria on 20 September, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 11.09.2023
Pronounced on: 20.09.2023
CSA No. 25/2012
1. Surinder Pal, Age 58 years S/o .....Petitioners/Appellants
Late Sh. Puran Chand.
2. Ajit Kumar, age 55 years, S/o late
Puran Chand.
3. Dalip Kumar, age 45 years S/o
late Shri Puran Chand.
4. Mst. Chinta Devi, age 75 years
W/o late Shri Puran Chand.
-All residents of W. No. 2,
Basohli Tehil Basohli, District
Kathua.
5. Raj Rani, age 50 years D/o late
Shri Puran Chand, W/o Shri
Dayan Singh R/o House No. 503F
Resham Ghar Colony, Jammu.
6. Anita Kiran age 40 years D/o late
Shri Puran Chand, W/o Sh.
Salminder, R/o H. No. 452
Malikpur Tehsil Pathankote,
District Gurdaspur.
.
Through: Mr. Ved Raj Wazir, Sr. Advocate with
R.
Mr. Neeraj Magotra, Advocate
Vs
1. Narinder Khajuria,
S/o Om Parkash Khajuria R/o Ward No. 1,
Kathua
..... Respondents
Through: Mr. Rahul Pant, Sr. Advocate with
Mr. Anirudh Sharma, Advocate
2
CSA No. 25/2012
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) By concurrent judgments by the two Courts below i.e. the Court of Munsiff, Basohli (hereinafter to be referred as "the Trial Court") and the Court of Additional District Judge, Kathua (hereinafter to be referred as "the 1st Appellate Court"), have decreed the suit for eviction of the predecessor-in- interest of the appellants from the house and land appurtenant thereto, situated at Basohli, District Kathua in favour of the predecessor-in-interest of respondent/plaintiff. The appellants, who happen to be the succession-in-interest of defendant/tenant, have filed the present Second Appeal being aggrieved of the aforesaid judgments/decrees.
2) The 1st Appellate Court dismissed the appeal of the defendant vide impugned judgment dated 03.08.2012 affirming the judgment and decree of the Trial Court, which was rendered on 29.04.2006. The original suit was filed on 22.12.1988. The decree has been passed in favour of the landlord/predecessor- in-interest of the respondent herein, on the ground of personal bona fide necessity and on the ground of requirement for re-building of the suit property.
3) The appellants, who happen to be the successor-in-interest of the original defendant in the suit, have challenged the impugned judgments, mainly on the ground that by the time, the 1st Appellate Court decided the appeal, the provisions of Jammu and Kashmir (Residential and Commercial Tenancy) Act, 2012 (for short, the Act of 2012) had come into operation and Jammu and Kashmir Houses and Shops Rent Control Act, 1966 stood repealed. It is urged that in view of the aforesaid development, the learned 1st Appellate Court was 3 CSA No. 25/2012 required to transfer the proceedings to the Rent Controller or Appellate Rent Tribunal constituted in terms of the provisions contained under the Act of 2012 as the Civil Court had no jurisdiction to continue with the proceedings after enforcement of Act of 2012. It has been further contended that as per case of the landlord, she desired to use the suit property for commercial purpose, which is not permissible and this aspect of the matter has been ignored by both the Courts below. It is also contended that the learned 1st Appellate Court has not given reasons for its decision on each point independently and the judgment rendered by the said Court does not fulfil the requirements of Order 41 Rule 31 of CPC. It is further contended that there was no evidence before the learned Trial Court to show that the landlord had financial resources to effect re-construction of the suit premises and this aspect of the case has also been ignored. The appellants have also contended that the landlord has failed to establish the achievement of public benefit by reconstruction of the building and the Courts below have failed to assess comparative advantage and disadvantage of the parties before passing the impugned judgments.
4) I have heard learned counsel for the parties and perused the record of case including the impugned judgments and record of the Trial Court as well as the record of the 1st Appellate Court.
5) Before examining the merits of contentions raised by the appellants and in order to determine as to whether any substantial questions of law has arisen in this appeal, it would be necessary to understand the scope of Second Appeal as also the procedure for entertaining the same. In this regard, Section 100 of CPC is required to be noticed, which provides that an appeal shall lie from the decree 4 CSA No. 25/2012 passed in an appeal, if the High Court is satisfied that the case involves a substantial question of law. The term "substantial question of law" has been explained by the Supreme Court in the case of State Bank of India and Ors. vs. S. N. Goyal, (2008) 8 4 SCC 92. The Supreme Court after noticing the provisions of Section 100 of CPC, has explained as to what constitutes a substantial question of law, in the following manner:
"9.1) Second appeals would lie in cases which involve substantial questions of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this court (or by the concerned High Court so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the concerned High Court), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the concerned High Court) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this court (or the concerned High Court) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two view points, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a strait-jacket definition as to when a substantial question of law arises in a case. Be that as it may.
Procedure relating to second appeals 9.2) We may next refer to the procedure relating to second appeals as evident from section 100 read with order 42 Rules 1 and 2, of Code of Civil Procedure :
5CSA No. 25/2012
(a) The appellant should set out in the memorandum of appeal, the substantial questions of law involved in the appeal.
(b) The High Court should entertain the second appeal only if it is satisfied that the case involves a substantial question of law.
(c) While admitting or entertaining the second appeal, the High Court should formulate the substantial questions of law involved in the case.
(d) The second appeal shall be heard on the question/s of law so formulated and the respondent can submit at the hearing that the second appeal does not in fact involve any such questions of law. The Appellant cannot urge any other ground other than the substantial question of law without the leave of the court.
(e) The High Court is at liberty to reformulate the substantial questions of law or frame other substantial question of law, for reasons to be recorded and hear the parties or such reformulated or additional substantial questions of law.
9.3) It is a matter of concern that the scope of second appeals and as also the procedural aspects of second appeals are often ignored by the High Courts. Some of the oft-repeated errors are:
(a) Admitting a second appeal when it does not give rise to a substantial question of law.
(b) Admitting second appeals without formulating substantial question of law.
(c) Admitting second appeals by formulating a standard or mechanical question such as "whether on the facts and circumstances the judgment of the first appellate court calls for interference" as the substantial question of law.
(d) Failing to consider and formulate relevant and appropriate substantial question/s of law involved in the second appeal.
(e) Rejecting second appeals on the ground that the case does not involve any substantial question of law, when the case in fact involves substantial questions of law.
(f) Reformulating the substantial question of law after the conclusion of the hearing, while preparing the judgment, thereby denying an opportunity to the parties to make submissions on the reformulated substantial question of law.
(g) Deciding second appeals by re-appreciating evidence and interfering with findings of fact, ignoring the questions of law.
These lapses or technical errors lead to injustice and also give rise to avoidable further appeals to this court and remands by this court, thereby prolonging the period of litigation. Care should be taken to ensure that the cases not involving substantial questions of law are not entertained, and at the same time ensure that cases involving substantial questions of law are not rejected, as not involving substantial questions of law.
6CSA No. 25/2012
6) From a perusal of the aforesaid enunciation of law on the subject, it is clear that if an appeal does not involve a substantial question of law, the same cannot be entertained. At the same time, the Court has to ensure that the cases involving substantial question of law are not to be rejected. A substantial question of law would mean a question of law, which has not been finally settled by the Courts. In case, settled law is misinterpreted or ignored by the Court below, it would give rise to a substantial question of law. The question of law, which has not been finally settled by the Court, would also be a substantial question of law and finally, if it is shown that question of law already settled needs reconsideration that would also give rise to a substantial question of law.
7) In light of the aforesaid position of law, let us now advert to the grounds of challenge, that have been raised by the appellants through the medium of instant appeal. As already noticed, according to the appellants, once the Act of 2012 came into force, it was not open to the 1st Appellate Court to decide the appeal, as in terms of the provisions of Act of 2012, the proceedings were to be transferred to the Rent Controller or Appellate Rent Tribunal. In this regard, it is to be noted that Act of 2012 was stayed by the Division Bench of this Court in terms of order dated 12.09.2012 passed in WP(PIL) No. 22/2012, titled, C. M. Sharma vs. State of J&K and others.
8) Learned Senior Counsel appearing for the appellants has submitted that the impugned judgment was passed by the Appellate Court on 03.08.2012 and at that time, the Act of 2012 had not been stayed by the Division Bench, as such, 7 CSA No. 25/2012 the only course open to the 1st Appellate Court was to transfer the proceedings to the forum constituted under the Act of 2012.
9) In the above context, it is to be noted that the Division Bench of this Court in the aforesaid writ petition passed yet another order on 13.12.2012. The operative portion of the said order is reproduced as under:
" Keeping in view the significance and constitutional issue raised, we are of the view that the matter requires consideration at length and cannot be decided at the motion stage. Accordingly, all the petitions are admitted which may be listed for hearing on 04.03.2012. Meanwhile, the mechanism which was postulated under the old Act shall continue. The interim order is modified to the extent that suits and appeals which were pending or which have been withdrawn by virtue of the provision of Section 42(4) of 2012 Act shall continue to be adjudicated by the Rent Controller or Appellate Rent Tribunal who had been earlier clothed with the power. The withdrawal of earlier suits or appeals would be deemed to be restored on the board of the Court of competent jurisdiction on filing of appropriate application by the party concerned."
10) From a perusal of the aforesaid contents of order passed by the Division Bench, it is clear that the mechanism that was postulated under the old Act, has been allowed to continue. It has been also clarified that the suits and appeals that were pending or that had been withdrawn by virtue of Section 42(4) of 2012 Act would continue to be adjudicated by the Rent Controller or Appellate Rent Control Tribunal, who had been earlier clothed with the power and that withdrawal of earlier suits or appeals would be deemed to be restored on the board of Court of competent jurisdiction on filing of proper application by the party concerned. This clearly shows that the order of stay passed by the Division Bench on 12.09.2012 has been given retrospective effect. In view of this position, it cannot be stated that the learned 1st Appellate Court has, while passing the impugned judgment, committed any jurisdictional error, as stay of the Act of 2012 by the Division Bench of this Court in terms of its order dated 8 CSA No. 25/2012 12.09.2012, read with order dated 13.12.2012 has saved the proceedings conducted by the 1st Appellate Court. Thus, no question of law, much less, a substantial question of law, arises on this score.
11) Regarding nature of user of tenanted premises by the landlord, the Trial Court as well as the 1st Appellate Court have, on the basis of evidence on record reached at a conclusion that the landlord needed the said premises for the purpose of residence and for the purpose of running a sewing centre for earning livelihood. The said finding is based upon the evidence led by the plaintiff before the Trial Court. Merely because the landlord desired to use a portion of the suit house for operating sewing machine from there, does mean that she was intending to use the premises for commercial purpose. Operating a sewing machine in a portion of a house does not qualify to be termed as a commercial activity. There is no ground to interfere with the concurrent finding of facts recorded by Courts below in this regard.
12) It has been contended by the appellants that the judgment of the 1st Appellate Court does not conform to the provisions contained in Order 41 Rule 31 of the CPC. If we have a look at the judgment of the 1st Appellate Court, it has dealt with all the contentions that were raised by the appellants while assailing the judgment of the Trial Court. The learned Appellate Court has recorded its findings on each issue after discussing the evidence on record. It is not necessary that the Appellate Court should reproduce the statements of the witnesses while passing its judgment. The reference to relevant portions of the statements of witnesses to support the conclusion is good enough to conform to the requirements of law. Even otherwise, the contents of the judgment passed by 9 CSA No. 25/2012 the Appellate Court would show that the Court has applied its mind to the facts and drawn its independent conclusion on the basis of applicable law. The judgment of the 1st Appellate Court demonstrates substantial compliance to Order 41 Rule 31 CPC and no prejudice can be said to have been caused to the other side on account of failure to formulate detailed points for determination by the Appellate Court, which at best would amount to mere irregularity. I am supported in my aforesaid view by the judgment of Bombay High Court in the case of Benba Sahadu Modak vs. Suryakant Vitthal Modal and ors., AIR 2006 (Bombay) 62.
13) As regards the finding relating to achievement of public benefit, it has been clearly stated by the learned Trial Court in its judgment that by rebuilding of the suit house, which is in a dilapidated condition, the public is going to be benefited. It has been concluded by the Trial Court on the basis of the evidence on record that the suit house is located in Basohli market and if it is left in a dilapidated condition, it may cause danger to the public, therefore, its re- building is for the public benefit. No evidence to the contrary has been led by the appellants before the Trial Court. Therefore, there is no ground to interfere with the finding recorded by the Trial Court in this regard.
14) That takes us to the question of assessment of comparative advantage and disadvantage. In this regard, a specific issue was framed by the leaned Trial Court and on the basis of evidence on record, it has been concluded that requirement and need of the landlord is more than that of the tenant. It has been noted by the learned Trial Court that the tenant owned a plot at Sairi Mohalla, Basohli, in which plinth has been filled, whereas the landlord has no residence at 10 CSA No. 25/2012 Basohli. This finding of the Trial Court has been affirmed by the 1st Appellate Court in its impugned judgment. The concurrent findings of the Courts below as this aspect of the matter, cannot be interfered with by this Court in this Second Appeal.
15) Lastly, it has been argued by the learned senior counsel appearing for the appellants that during the pendency of this appeal, respondent-landlord has died and in her place, respondent-Narinder Khajuria has been impleaded as respondent. It has been submitted that said respondent is not even the legal heir of landlord and he is only claiming to represent the estate of the deceased landlord on the basis of a Will, which is under challenge. On this ground, it has been submitted that a question of law arises as to whether with the death of landlord, her bona fide personal need for the suit house can be stated to be still in subsistence.
16) In the above context, it is to be noted that as per Clause (h) of 3rd proviso to Sub Section (1) of Section 11 of J&K Houses and Shops Rent Control Act, 1966, one of the grounds on the basis of which a landlord may seek eviction of a tenant is where house or shop is reasonably required by the landlord either for purposes of building or re-building or for his own occupation or for the occupation of any person for whose benefit the house or shop is held. The personal requirement of the house or shop has to be proved at time of filing of the suit and it has to subsist till the decree is passed by the Trial Court. Merely because the death of the landlord has taken place subsequently during the pendency of the Second Appeal, it cannot be stated that the decree of the Trial Court would get defeated. The subsequent event of death of the landlord is not 11 CSA No. 25/2012 relevant. Bona fide need of the landlord is to be examined on the date of institution of the proceedings and with the death of the landlord, it cannot be stated that the bona fide need has lapsed. In this regard, support can be had from the ratio laid down by the Supreme Court in the cases of Kamleshwar Parshad vs, Pradumanju Agarwal , 1997 AIR (SC) 2399 and Shakuntala Bal and ors. vs. Naryan Das and ors. AIR 2004 SC 3484
17) For what has been discussed herein before, this Court is satisfied that the Trial Court as well as the 1st Appellate Court, have passed well reasoned judgments after rendering findings on each issue after proper application of mind and appreciation of evidence on record. There is neither misreading of relevant evidence nor inadmissible evidence has been considered. Therefore, the judgment of the 1st Appellate Court satisfies the requirements of Order 41 Rule 31 CPC as well. No question of law, much less, substantial question of law arises in the present appeal. Therefore, this Court is not inclined to interfere with and upset the findings of facts and judgments and decree of Courts below granting eviction of suit house.
18) The appeal is, therefore, found to be devoid of any merit. The same is, accordingly, dismissed.
(SANJAY DHAR) JUDGE Jammu 20.09.2023 Karam Chand/Secy Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No