Madhya Pradesh High Court
Manoj Kumar Jain vs Gopal Das on 14 December, 2023
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
SECOND APPEAL No. 71 of 2017
BETWEEN:-
MANOJ KUMAR JAIN, S/O SHRI NEMI
CHAND JAIN, AGED 62 YEARS, R/O
MAGRONI WALO KI KOTHI, A.B. ROAD
SHIVPURI (MADHYA PRADESH)
........APPELLANT
(BY SHRI S.K.JAIN - ADVOCATE)
AND
1. GOPAL DAS, S/O LATE SHRI KISHORI
LAL AGARWAL AGARWAL, R/O AGRAWAL
CHAI NAMKEEN CORNER ROADWAYS,
BUS STAND MADHAV CHOUK CHATRI
ROAD SHIVPURI (MADHYA PRADESH)
2. BUNTY AGARWAL @ VISHNU AGARWAL
S/O LATE SHRI KISHORI LAL AGARWAL
R/O PRIVATE BUS STAND CHATRI ROAD,
SHIVPURI (MADHYA PRADESH)
........RESPONDENTS
(BY SHRI KARAN VIRWANI - ADVOCATE)
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Reserved on : 21.11.2023
Pronounced on : 14.12.2023
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This Second Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Hon'ble Shri Justice
Signature Not Verified
Signed by: AMAN TIWARI
Signing time: 12/15/2023
2:20:37 PM
2
Rajendra Kumar Vani pronounced the following:
JUDGMENT
Heard on the question of admission.
2- This Second appeal under Section 100 of Civil Procedure Code (for brevity, CPC) has been filed by the appellant against the impugned judgment and decree dated 22/12/2016 passed by the Third Additional District Judge, Shivpuri in Civil Appeal No. 500012/2011 confirming the Judgment and decree dated 05.07.2011 passed by First Additional Civil Judge, Class - II, Shivpuri in Civil Suit No. 01- A/2011. 3- The facts necessary for disposal of the present appeal in brief are that appellant/plaintiff filed a civil suit against respondents/defendants for eviction from shop bearing No.4 situated at near private Bus stand Chatri Road, Shivpuri which is having 1 room. The case of the appellant is that the shop in dispute was taken by respondent No.1 on rent of Rs.150/- per month to sell sweets, however, subsequently he sublet the said shop to respondent No.2 who used to prepare sweets in the shop using local furnace thereby the value of shop is getting decreased and because of use of high temperature of furnace, there are chances of damage to the roof of shop, and smoke of furnace is also causing nuisance. Respondent no.1 has opened and started his own two shops near Roadways Bus stand Shivpuri in the name of Agarwal chai namkeen corner, and therefore, for selling of sweets, respondent No.1 is not having any requirement of suit shop. The respondent no.1 has done material alteration in front side of the shop without any permission and has opened door and established shed by removing wall of shop and also has raised shutter on the footpath of size 12 x 60 feet in length Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 3 which is a material alteration without any permission and, therefore, caused substantial damage to shop. The son of plaintiff, namely, Kapil Jain has completed M.B.A course and is unemployed and he wants to open hotel in the premises. The plaintiff is having sufficient financial resources, however, since there is no suitable vacant accommodation available in his possession in Shivpuri city, he is not able to start his business of hotel. For opening of hotel, he will make a hall by removing partition of nearby shops, therefore, a notice was sent to respondents which was returned by respondents intentionally. In spite of giving enough opportunity to respondents to vacate the shop, shop was not vacated by them. Thus, the suit for eviction was filed by appellant. 4- The respondents/defendants filed written statement and denied the allegations mentioned in the plaint. It was alleged that no material alteration has been done by respondents and he also denied that the shop getting damaged because of use of furnace and also denied causing any nuisance and that he is having any alternate accommodation at Government bus stand. It was also pleaded by the defendants that defendant No.1 has not sublet the shop to defendant No.2 who is his real brother and also denied the fact of installing shutter without any permission. It was also pleaded that said shutter was raised by father of plaintiff prior to 20-21 years ago. He also pleaded that there is no need of the suit shop to the plaintiff for starting business of hotel for his son, as plaintiff is already having enough property to start any business.
5- The Trial Court after framing issues, recording evidence of both the parties, and hearing them, dismissed the suit. 6- Being aggrieved by the judgment and decree passed by the Trial Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 4 Court, the appellant preferred an appeal, which also has been dismissed by impugned judgment and decree dated 22.12.2016. 7- Challenging the judgment and decrees passed by the Courts below, it is submitted by the Counsel for the appellant that respondent No.1 sublet suit shop in dispute to respondent No.2 without any permission and consent of appellant, who prepares sweet in the shop by using local furnace, as a result, the value of shop is getting decreased and smoke of furnace is also causing nuisance. It is also submitted that respondent No.1 has also done material alteration in the front side of shop without any permission and has opened door and established shed by removing wall of shop and also has raised shutter on the foothpath size 12 x 60 feet in length. It is further submitted that a notice dated 01.08.2007 was sent to defendants, who after receiving the notice has not removed the encroachment.
8- It is also submitted by learned counsel for appellant that son of appellant Kapil Jain has competed MBA course and is unemployed and wants to open a hotel in the said premises and for that, plaintiff is having sufficient financial resources, however, since there is no such accommodation vacant in Shivpuri city, therefore, he is not able to start his business of hotel. For opening the hotel, he will make a hall by removing partition of nearby shops. The suit for eviction was filed by the appellant under Section 12(1)(B),(C),(M), (O) & (F) of M.P. Accommodation Control Act (for brevity, 'Act of 1961'), but both the Courts below dismissed the suit as well as appeal filed by the appellant and the Courts below did not consider the evidence adduced by the plaintiff. It is further submitted by learned counsel for appellant that it is well settled law that plaintiff/landlord is the best judge to decide his Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 5 necessity and also to select the premises more suitable for him; therefore, he prayed to allow the Second Appeal by quashing the judgment and decrees passed by the Trial Court as well as First Appellate Court.
9- Per contra, it is submitted by counsel for respondents that both the Courts below after considering the evidence and material on record in toto have given concurrent findings of fact that the plaintiff has failed to prove his case for eviction of the respondents from the suit shop. It is also submitted by learned counsel for the respondents that mainly, this Second Appeal has been filed with regard to ground of eviction under Section 12(1)(F) of the Act of 1961 but the case of the appellant/plaintiff is not covered by any ground for eviction. In this case, as no perverse finding was given by the Courts below and no substantial question of law is involved in this appeal, the appeal may be dismissed in limine.
10- Heard learned counsel for the parties and perused the record. 11- The Second Appeal is filed under the provisions of Section 100 of CPC which provides that Second Appeal is entertainable by the High Court if it is satisfied that the case involves a substantial question of law. Section 101 of CPC provides that no second appeal shall lie except on the ground mentioned in section 100 of CPC.
12- As regards the scope to entertain Second Appeal, the Supreme Court in the case of Municipal Committee, Hoshiarpur Vs. Punjab SEB, reported in (2010) 13 SCC 216 has held as under:-
"16. Thus, it is evident from the above that the right to appeal is a creation of statute and it cannot be created by acquiescence of the parties or by the order of the court. Jurisdiction cannot be conferred by mere acceptance, Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 6 acquiescence, consent or by any other means as it can be conferred only by the legislature and conferring a court or authority with jurisdiction, is a legislative function. Thus, being a substantive statutory right, it has to be regulated in accordance with the law in force, ensuring full compliance with the conditions mentioned in the provision that creates it. Therefore, the court has no power to enlarge the scope of those grounds mentioned in the statutory provisions. A second appeal cannot be decided merely on equitable grounds as it lies only on a substantial question of law, which is something distinct from a substantial question of fact. The court cannot entertain a second appeal unless a substantial question of law is involved, as the second appeal does not lie on the ground of erroneous findings of fact based on an appreciation of the relevant evidence. The existence of a substantial question of law is a condition precedent for entertaining the second appeal; on failure to do so, the judgment cannot be maintained. The existence of a substantial question of law is a sine qua non for the exercise of jurisdiction under the provisions of Section 100 CPC. It is the obligation on the court to further clear the intent of the legislature and not to frustrate it by ignoring the same. (Vide Santosh Hazari v. Purshottam Tiwari; Sarjas Rai v. Bakshi Inderjit Singh; Manicka Poosali v. Anjalai Ammal; Sugani v. Rameshwar Das; Hero Vinoth v. Seshammal; P. Chandrasekharan v. S. Kanakarajan; Kashmir Singh v. Harnam Singh; V. Ramaswamy v. Ramachandran and Bhag Singh v. Jaskirat Singh.)
17. In Mahindra & Mahindra Ltd. v. Union of India this Court observed*:
"12. ... it is not every question of law that could be permitted to be raised in the second appeal. The parameters within which a new legal plea could be permitted to be raised, are specifically stated in sub- section (5) of Section 100 CPC. Under the proviso, the Court should be 'satisfied' that the case involves a 'substantial question of law' and not a mere 'question of law'. The reason for permitting the substantial question of law to be raised, should be 'recorded' by the Court. It is implicit therefrom that on compliance of the above, the opposite party should be afforded a Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 7 fair or proper opportunity to meet the same. It is not any legal plea that would be alleged at the stage of second appeal. It should be a substantial question of law. The reasons for permitting the plea to be raised should also be recorded." [Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438, pp. 445- 46, para 10]
18. In Madamanchi Ramappa v. Muthaluru Bojjappa this Court observed: (AIR pp. 1637-38, para 12) "12. ... Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by Section 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of Section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid."
19. In Jai Singh v. Shakuntala this Court held as under:
(SCC pp. 637-38, para 6) "6. ... it is only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible -- it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 8 circumspection."
23. In Kulwant Kaur v. Gurdial Singh Mannthis Court observed as under: (SCC pp. 278-79, para 34) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity.
...
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
13- It is evident from the law settled by the Hon'ble Supreme Court in aforesaid case that every question of law could not be permitted to be raised in Second Appeal, there ought to be substantial question of law Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 9 for entertaining such appeal and such appeal is entertainable in very exceptional cases and on extreme perversity. It is a rarity rather then regularity but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, then Second Appeal should be entertained. In other words, perversity itself is a substantial question worth adjudication. Here in this appeal, it is to be seen as to whether any perversity was committed by the Courts below and as to whether any substantial question of law is involved in this Second Appeal?
14- So far as the 'perversity' is concerned, the Supreme Court in the case of Damodar Lal Vs. Sohan Devi and others reported in (2016) 3 SCC 78 has held as under :
"8. "Perversity" has been the subject-matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of the Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam, it has been held at para 11 that:
(SCC pp. 192-93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."
10. In Gurvachan Kaur v. Salikram, at para 10, this principle has been reiterated: (SCC p. 532) Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 10 "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
15- The Supreme Court in the case of Pakeerappa Rai Vs. Seethamma Hengsu Dead by L.R.s and others reported in (2001) 9 SCC 521 has held as under :
"2.......... But the High Court in exercise of power under Section 100 CPC cannot interfere with the erroneous finding of fact howsoever gross the error seems to be......."
16- The Supreme Court in the case of Gurdev Kaur Vs. Kaki reported in (2007) 1 SCC 546 has held as under :
"46. In Bholaram v. Ameerchand a three-Judge Bench of this Court reiterated the statement of law. The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law.
47. In Kshitish Chandra Purkait v. Santosh Kumar Purkait a three-Judge Bench of this Court held: (a) that the High Court should be satisfied that the case involved a substantial question of law and not mere question of law;
(b) reasons for permitting the plea to be raised should also be recorded; (c) it has the duty to formulate the substantial questions of law and to put the opposite party on notice and Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 11 give fair and proper opportunity to meet the point. The Court also held that it is the duty cast upon the High Court to formulate substantial question of law involved in the case even at the initial stage.
48. This Court had occasion to determine the same issue in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor.
The Court stated that the High Court can exercise its jurisdiction under Section 100 CPC only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law.
49. A mere look at the said provision shows that the High Court can exercise its jurisdiction under Section 100 CPC only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned Single Judge. It is held by a catena of judgments by this Court, some of them being, Kshitish Chandra Purkait v. Santosh Kumar Purkait and Sheel Chand v. Prakash Chand that the judgment rendered by the High Court under Section 100 CPC without following the aforesaid procedure cannot be sustained. On this short ground alone, this appeal is required to be allowed.
50. In Kanai Lal Garari v. Murari Ganguly this Court has observed that it is mandatory to formulate the substantial question of law while entertaining the appeal in absence of which the judgment is to be set aside. In Panchugopal Barua v. Umesh Chandra Goswami and Santosh Hazari v. Purushottam Tiwari the Court reiterated the statement of law that the High Court cannot proceed to hear a second appeal without formulating the substantial question of law. These judgments have been referred to in the later judgment of K. Raj v. Muthamma. A statement of law has been reiterated regarding the scope and interference of the Court in second appeal under Section 100 of the Code of Civil Procedure.
51. Again in Santosh Hazari v. Purushottam Tiwari another three-Judge Bench of this Court correctly Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 12 delineated the scope of Section 100 CPC. The Court observed that an obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the Court. In the said judgment, it was further mentioned 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. According to the Court 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 and Article 133(1)(a) of the Constitution.
52. In Kamti Devi v. Poshi Ram the Court came to the conclusion that the finding thus reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding.
53. In Thiagarajan v. Sri Venugopalaswamy B. Koil this Court has held that the High Court in its jurisdiction under Section 100 CPC was not justified in interfering with the findings of fact. The Court observed that to say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible.
54. In the same case, this Court observed that in a case where special leave petition was filed against a judgment of the High Court interfering with findings of fact of the lower appellate court. This Court observed that to say the Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 13 least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court further observed that the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible.
55. This Court again reminded the High Court in Commr., HRCE v. P. Shanmugama that the High Court has no jurisdiction in second appeal to interfere with the finding of facts.
56. Again, this Court in State of Kerala v. Mohd. Kunhi has reiterated the same principle that the High Court is not justified in interfering with the concurrent findings of fact. This Court observed that, in doing so, the High Court has gone beyond the scope of Section 100 of the Code of Civil Procedure.
57. Again, in Madhavan Nair v. Bhaskar Pillai this Court observed that the High Court was not justified in interfering with the concurrent findings of fact. This Court observed that it is well settled that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same.
58. Again, in Harjeet Singh v. Amrik Singh this Court with anguish has mentioned that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the first appellate court. In this case, the findings of the trial court and the lower appellate court regarding readiness and willingness to perform their part of contract was set aside by the High Court in its jurisdiction under Section 100 CPC. This Court, while setting aside the judgment of the High Court, observed that the High Court was not justified in interfering with the concurrent findings of fact arrived at by the courts below.
59. In H.P. Pyarejan v. Dasappa delivered on 6-2-2006, this Court found serious infirmity in the judgment of the High Court. This Court observed that it suffers from the vice of exercise of jurisdiction which did not vest in the High Court. Under Section 100 of the Code (as amended in 1976) the jurisdiction of the Court to interfere with the Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 14 judgments of the courts below is confined to hearing of substantial questions of law. Interference with the finding of fact by the High Court is not warranted if it invokes reappreciation of evidence. This Court found that the impugned judgment of the High Court was vulnerable and needed to be set aside."
17- The Supreme Court in the case of Municipal Committee, Hoshiarpur Vs. Punjab SEB, reported in (2010) 13 SCC 216 has held as under:-
"16. Thus, it is evident from the above that the right to appeal is a creation of statute and it cannot be created by acquiescence of the parties or by the order of the court. Jurisdiction cannot be conferred by mere acceptance, acquiescence, consent or by any other means as it can be conferred only by the legislature and conferring a court or authority with jurisdiction, is a legislative function. Thus, being a substantive statutory right, it has to be regulated in accordance with the law in force, ensuring full compliance with the conditions mentioned in the provision that creates it. Therefore, the court has no power to enlarge the scope of those grounds mentioned in the statutory provisions. A second appeal cannot be decided merely on equitable grounds as it lies only on a substantial question of law, which is something distinct from a substantial question of fact. The court cannot entertain a second appeal unless a substantial question of law is involved, as the second appeal does not lie on the ground of erroneous findings of fact based on an appreciation of the relevant evidence. The existence of a substantial question of law is a condition precedent for entertaining the second appeal; on failure to do so, the judgment cannot be maintained. The existence of a substantial question of law is a sine qua non for the exercise of jurisdiction under the provisions of Section 100 CPC. It is the obligation on the court to further clear the intent of the legislature and not to frustrate it by ignoring the same. (Vide Santosh Hazari v. Purshottam Tiwari; Sarjas Rai v. Bakshi Inderjit Singh; Manicka Poosali v. Anjalai Ammal; Sugani v. Rameshwar Das; Hero Vinoth v. Seshammal; P. Chandrasekharan v. S. Kanakarajan; Kashmir Singh v. Harnam Singh; V. Ramaswamy v.Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 15
Ramachandran and Bhag Singh v. Jaskirat Singh.)
17. In Mahindra & Mahindra Ltd. v. Union of India this Court observed*:
"12. ... it is not every question of law that could be permitted to be raised in the second appeal. The parameters within which a new legal plea could be permitted to be raised, are specifically stated in sub- section (5) of Section 100 CPC. Under the proviso, the Court should be 'satisfied' that the case involves a 'substantial question of law' and not a mere 'question of law'. The reason for permitting the substantial question of law to be raised, should be 'recorded' by the Court. It is implicit therefrom that on compliance of the above, the opposite party should be afforded a fair or proper opportunity to meet the same. It is not any legal plea that would be alleged at the stage of second appeal. It should be a substantial question of law. The reasons for permitting the plea to be raised should also be recorded." [Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438, pp. 445- 46, para 10]
18. In Madamanchi Ramappa v. Muthaluru Bojjappa this Court observed: (AIR pp. 1637-38, para 12) "12. ... Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by Section 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of Section 100, it would inevitably Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 16 introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid."
19. In Jai Singh v. Shakuntala this Court held as under:
(SCC pp. 637-38, para 6) "6. ... it is only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible -- it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection."
20. While dealing with the issue, this Court in Leela Soni v. Rajesh Goyal observed as under: (SCC p. 502, paras 20-22) "20. There can be no doubt that the jurisdiction of the High Court under Section 100 of the Code of Civil Procedure (CPC) is confined to the framing of substantial questions of law involved in the second appeal and to decide the same. Section 101 CPC provides that no second appeal shall lie except on the grounds mentioned in Section 100 CPC. Thus it is clear that no second appeal can be entertained by the High Court on questions of fact, much less can it interfere in the findings of fact recorded by the lower appellate court. This is so, not only when it is possible for the High Court to take a different view of the matter but also when the High Court finds that conclusions on questions of fact recorded by the first appellate court are erroneous.
21. It will be apt to refer to Section 103 CPC which enables the High Court to determine the issues of fact:
***
22. The section, noted above, authorises the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations: (1) when that issue has not been determined both by the trial court as well as the Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 17 lower appellate court or by the lower appellate court; or (2) when both the trial court as well as the appellate court or the lower appellate court have wrongly determined any issue on a substantial question of law which can properly be the subject- matter of second appeal under Section 100 CPC."
21. In Jadu Gopal Chakravarty v. Pannalal Bhowmick the question arose as to whether the compromise decree had been obtained by fraud. This Court held that though it is a question of fact, but because none of the courts below had pointedly addressed the question of whether the compromise in the case was obtained by perpetrating fraud on the court, the High Court was justified in exercising its powers under Section 103 CPC to go into the question. (See also Achintya Kumar Saha v. Nanee Printers.)
22. In Bhagwan Sharma v. Bani Ghosh this Court held that in case the High Court exercises its jurisdiction under Section 103 CPC, in view of the fact that the findings of fact recorded by the courts below stood vitiated on account of non-consideration of additional evidence of a vital nature, the Court may itself finally decide the case in accordance with Section 103(b) CPC and the Court must hear the parties fully with reference to the entire evidence on record with relevance to the question after giving notice to all the parties. The Court further held as under:
(Bhagwan Sharma case, SCC p. 499, para 5) "5. ... The grounds which may be available in support of a plea that the finding of fact by the court below is vitiated in law, does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue. On a reappraisal of the entire evidence the ultimate conclusion may go in favour of either party and it cannot be prejudged, as has been done in the impugned judgment."
23. In Kulwant Kaur v. Gurdial Singh Mannthis Court observed as under: (SCC pp. 278-79, para 34) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 18 for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. ...
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
18- In Second Appeal, the reappreciation of evidence and interference with the findings of fact is not permissible. During the course of arguments, learned counsel for the appellant admits that he is pressing this appeal on the ground of Section 12(1)(F) of Act of 1961, alone. 19- Having gone through the evidence on record, it is found that the respondent No.2 is the brother of respondent No.1 and used to sit in the shop in dispute in that capacity alone. It is not proved that respondent No.1 has sublet the shop to respondent No.2. It is also evident from the evidence that respondent No.2 used to sit in the shop in absence of Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 19 respondent No.1 and he only extends support to his brother-respondent No.1. The fact of causing nuisance and unauthorized construction is also not found proved. Looking to the evidence on record, it appears that the appellant's son Kapil Jain has completed MBA course but neither he is having any experience to run a hotel nor having any qualification, degree or diploma in hotel management. It is also not clear from the evidence that what type of hotel plaintiff wants to open. On the contrary, it has come in the evidence that appellant filed civil suit in relation to other shop also on the ground of bonafide need for the business of his son Kapil but after getting possession of that shop, he sold it in April 2007, therefore, bonafide need has also not been proved. 20- It is the trite law that plaintiff is the best judge to decide his necessity and suitability of premises but before that initial burden is to be discharged by the plaintiff-landlord that he requires the premises/accommodation for the purpose of continuing or starting his business of his major son or unmarried daughter and such initial burden could not be discharged by the appellant/plaintiff/landlord in this case, therefore, argument in that behalf is not helpful for the appellant. 21- In the present case, no perverse finding was given by the Trial Court or First Appellate Court and no substantial question of law arises in this case. Neither the Courts below ignored any material fact nor considered any inadmissible evidence and, thus, the concurrent findings of the Court below are not liable to be interfered with. 22- Ex-consequenti, the judgment and decree dated 22/12/2016 passed by Court of Third Additional District Judge, Shivpuri in Civil Appeal No. 500012/2011 and the Judgment and decree dated 05.07.2011 passed by First Additional Civil Judge, Class - II, Shivpuri Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM 20 in Civil Suit No. 01- A/2011, are hereby affirmed. 23- The appeal fails and is hereby dismissed in limine.
(Rajendra Kumar Vani) JUDGE Aman Signature Not Verified Signed by: AMAN TIWARI Signing time: 12/15/2023 2:20:37 PM