Himachal Pradesh High Court
______________________________________________________________________ vs Of on 27 April, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.: 281 of 2006
Reserved on : 22.04.2016
.
Date of Decision: 27.04.2016
______________________________________________________________________
H.P. Housing and Urban Development Authority
through its Secretary-cum-Chief Engineer, Nigam Vihar,
Shimla-2 (HP).
.....Appellant/plaintiff.
Vs.
of
Tarsem Lal
.....Respondent/defendant.
Coram:
rt
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the appellant : Mr. C.N. Singh, Advocate.
For the respondents : Mr. N.K. Thakur, Sr. Advocate, with Ms.
Jamuna Devi, Advocate.
Ajay Mohan Goel, J. :
This Regular Second Appeal has been filed by the appellant against the judgment, dated 13.09.2005, passed by the learned Additional District Judge, Una in Civil Appeal No. 95/03 vide which learned Appellate Court has dismissed the appeal filed by the present appellant/plaintiff and upheld judgment, dated 02.08.2003, passed by learned Sub Judge 1st Class, Court No. II, Una, District Una, H.P.
2. Appellant/plaintiff- Himachal Pradesh Housing and Urban Development Authority had filed a suit for mandatory injunction for Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 20:11:52 :::HCHP 2demolition of unauthorized construction with regard to MIG-II, House No.269, situated in H.P. Housing Board Colony at Rakkar, Tehsil and District Una. Its case was that the respondent-defendant had applied for allotment of a house on the basis of Hire Purchase Tenancy Agreement .
and he was allotted MIG-II House No. 269 vide letter, dated 25.03.1987.
This was followed by execution of Hire Purchase Tenancy Agreement between the parties, in which the respondent-defendant had given an undertaking to abide by the terms and conditions of the allotment of envisaged in the allotment letter as well as Hire Purchase Tenancy Agreement, which conditions, inter alia, included that in case any rt extension has to be carried out by the defendant, then the same can be done after the approval of the proposed construction, additions or alteration plan by the plaintiff. The defendant had submitted a plan to carry out further constructions, which was approved with some modifications by the appellant/plaintiff. In the month of December, 1994, the official of the plaintiff posted at Rakkar, Una visited the premises of the defendant and found that defendant was raising unauthorized construction on the portion shown with letters 'EFGHIJ' on the allotted land. The matter was reported to the Assistant Engineer of the plaintiff posted at Rakkar, Una, who issued a notice, dated 09.12.1994. But despite this, the defendant continued to carry out unauthorized construction. In these circumstances, the appellant/plaintiff filed the suit for mandatory injunction by demolition of the unauthorized construction.
3. In his written statement, the defendant denied that he had carried out any unauthorized construction on the portion shown with ::: Downloaded on - 15/04/2017 20:11:52 :::HCHP 3 letters 'EFGHIJ' on the allotted land and that the addition and extension carried out were duly allowed by the plaintiff and such type of constructions were also allowed by the plaintiff in other houses constructed in the vicinity. He denied that any official of the plaintiff had .
visited his house, as alleged or that he had received any notice from the plaintiff.
4. In order to prove its case, plaintiff examined two witnesses.
PW-1 Sh. K.K. Kalia, Assistant Engineer of the plaintiff stated that the of defendant had sought permission to carry out extra construction, which permission was allowed. However, the defendant started carrying out rt unauthorized construction and his predecessor accordingly issued a notice to the defendant. But despite this, the defendant did not stop carrying out the unauthorized construction and he went on to complete the same. He further mentions that the unauthorized construction carried out by the defendant was in violation of the provisions of Hire Purchase Tenancy Agreement and the Rules. In his cross-examination, he has stated that he had not prepared any spot inspection report and there was no spot report of his predecessor with regard to unauthorized construction. The site plan was there, but the same was undated. He further deposed that he was not aware as to whether the notice issued to the defendant was received by him or not. He has also admitted that the construction carried out in House Nos. 270, 271 and 286 were similar.
He expressed his ignorance to the fact as to whether notices had been issued to the owners of House Nos. 270,271 and 286. Similarly, PW-2 Achhar Singh, Junior Engineer, H.P. Housing Board, Nalagarh has stated ::: Downloaded on - 15/04/2017 20:11:52 :::HCHP 4 that he had prepared the site plan Ex. P-7. In his cross-examination, he deposed that he has seen House Nos. 270, 271 and 286 and these houses were similar to the house of the defendant.
5. The plaintiff has placed reliance on Ex. P-3, Hire Purchase .
Agreement, sanction letter Ex. P2, site plans Ex. P4 and Ex. P5 to substantiate its case. On the other hand, the defendant examined his power of attorney Anil Kumar, who deposed that no unauthorized construction was carried out, as alleged.
of
6. The learned trial Court on the basis of the material placed on record concluded that the plaintiff had failed to prove that any rt unauthorized construction had been carried out by the defendant in violation of the Hire Purchase Tenancy Agreement or approved site plan.
In appeal, the learned Appellate Court confirmed the findings of the learned Court below by holding that the learned trial Court had correctly come to the conclusion that the defendant had not raised any unauthorized construction and had not violated the Hire Purchase Tenancy Agreement. It was further held that the plaintiff had failed to prove as to what was the extent of the alleged unauthorized construction stated to have been raised by the defendant in contravention of the terms and conditions of the Hire Purchase Tenancy Agreement.
7. I have gone through the records of the case and also heard the learned counsel for the parties.
8. Mr. C.N. Singh, learned counsel for the appellant has strenuously argued that both the learned courts below have erred in coming to the conclusion that there was no unauthorized construction ::: Downloaded on - 15/04/2017 20:11:52 :::HCHP 5 carried out by the defendant. According to him, the plaintiff had placed sufficient material on record to demonstrate that the construction carried out by the defendant was in excess of what was permitted and, therefore, was unauthorized.
.
9. On the other hand, Sh. N.K. Thakur, learned Senior Advocate appearing for the respondent has contended that there is neither any infirmity nor any perversity in the judgment passed by either of the Courts below. He has further argued that when both the Courts below of have returned a finding that the defendant had not indulged in any unauthorized construction, then it was not open for the appellant to now rt raise this issue by way of a Second Appeal, because under Section 100 of the Code of Civil Procedure, only a substantial question of law can be raised. In the present case, there was no substantial question of law involved at all, leave aside a substantial question of law. As per him, whether or not the defendant had raised any unauthorized construction was a question of fact, which stood conclusively decided in his favour by the two Courts below and it required no interference from this Court.
10. The Hon'ble Supreme Court in Santosh Hazari Vs. Purushottam Tiwari (2001) 3 Supreme Court Cases 179 has held that 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 to -technical, of no substance or consequence, or academic merely. The proper test for determining ::: Downloaded on - 15/04/2017 20:11:52 :::HCHP 6 whether a question of law raised in the case is substantial would be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by Apex Court .
or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.
11. rt Paragraph-14 of the said judgment reads as under:
"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. 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. 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 court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the ::: Downloaded on - 15/04/2017 20:11:52 :::HCHP 7 paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
.
12. The Hon'ble Supreme Court in Union of India Vs. Ibrahim Uddin and another (2012) 8 Supreme Court Cases 148 has held as under:
"59. Section 100 CPC provides for a second appeal of only on the substantial question of law. Generally, a Second Appeal does not lie on question of facts or of law. In State Bank of India & Ors. v. S.N. Goyal, AIR 2008 SC 2594, this Court explained the terms "substantial question of law" and rt observed as under :
"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.
........... 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 on the final outcome, will not be a substantial question of law. There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case." (Emphasis added)
60. Similarly, in Sir Chunilal V. Mehta & Sons Ltd.
v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 ::: Downloaded on - 15/04/2017 20:11:52 :::HCHP 8 SC 1314, this Court for the purpose of determining the issue held:-
"The proper test for determining whether a question of law raises in the case is substantial, would, in our opinion, be whether it is of general public importance .
or whether it directly and substantially affects the rights of the parties....." (Emphasis added)
61. In Vijay Kumar Talwar v. Commissioner of Income Tax, New Delhi, (2011) 1 SCC 673, this Court held that, a point of law which admits of no two opinions may be of a proposition of law but cannot be a substantial question of law. 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 on the rt decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. 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 court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. It will, therefore, depend on the facts and circumstance of each case, whether a question of law is a substantial one or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." (See also: Rajeshwari v. Puran Indoria, (2005) 7 SCC 60).
62. The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a ::: Downloaded on - 15/04/2017 20:11:52 :::HCHP 9 sine-qua-non for the exercise of jurisdiction under the provisions of Section 100 CPC. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence.
.
63. There may be a question, which may be a "question of fact", "question of law", "mixed question of fact and law" and "substantial question of law." Question means anything inquired; an issue to be decided. The "question of fact" is whether a particular factual situation exists or not. A question of fact, in the Realm of of Jurisprudence, has been explained as under:-
"A question of fact is one capable of being answered rt by way of demonstration. A question of opinion is one that cannot be so answered. An answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong." (Vide: Salmond, on Jurisprudence, 12th Edn. page 69, cited in Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb Vikhe Patil & ors., AIR 1994 SC 678).
64. In Smt. Bibhabati Devi v. Ramendra Narayan Roy & Ors., AIR 1947 PC 19, the Privy Council has provided the guidelines as in what cases the second appeal can be entertained, explaining the provisions existing prior to the amendment of 1976, observing as under:-
"..... that miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happen not in the proper sense of the word 'judicial procedure' at all. That the violation of some principles of law or procedure must be such erroneous proposition of law that if that proposition to be corrected, the finding ::: Downloaded on - 15/04/2017 20:11:53 :::HCHP 10 cannot stand, or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding, is such a question of law.
.
'That the question of admissibility of evidence is a proposition of law but it must be such as to affect materially the finding. The question of the value of evidence is not sufficient reason for departure from the practice......"
of
65. In Suwalal Chhogalal v. Commissioner of Income Tax, (1949) 17 ITR 269, this Court held as under:-
rt "A fact is a fact irrespective of evidence, by which it is proved. The only time a question of law can arise in such a case is when it is alleged that there is no material on which the conclusion can be based or no sufficient evidence."
66. In Oriental Investment Company Ltd. v.
Commissioner of Income Tax, Bombay, AIR 1957 SC 852, this Court considered a large number of its earlier judgments, including Sree Meenakshi Mills Ltd., Madurai v.
Commissioner of Income Tax, Madras, AIR 1957 SC 49, and held that where the question of decision is whether certain profit is made and shown in the name of certain intermediaries, were, in fact, profit actually earned by the assessee or the intermediaries, is a mixed question of fact and law. The Court further held that inference from facts would be a question of fact or of law according as the point for determination is one of pure fact or a "mixed question of law and fact" and that a finding of fact without evidence to support it or if based on relevant or irrelevant matters, is not unassailable.
::: Downloaded on - 15/04/2017 20:11:53 :::HCHP 1167. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in .
the court below are perverse. (Vide: Jagdish Singh v. Nathu Singh, AIR 1992 SC 1604; Smt. Prativa Devi (Smt.) v. T.V. Krishnan, (1996) 5 SCC 353; Satya Gupta (Smt.) @ Madhu Gupta v. Brijesh Kumar, (1998) 6 SCC 423; Ragavendra Kumar v. Firm Prem Machinary & Co., AIR 2000 SC 534;
of Molar Mal (dead) through Lrs. v. M/s. Kay Iron Works Pvt. Ltd., AIR 2000 SC 1261; Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., AIR 2010 SC 2685; and Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740).
rt
68. In Jai Singh v. Shakuntala, AIR 2002 SC 1428, this Court held that it is permissible to interfere even on question of fact but it may be 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 thus 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." Similar view has been taken in the case of Kashmir Singh v. Harnam Singh & Anr., AIR 2008 SC 1749."
13. The present appeal has been admitted on the following substantial question of law:
"Whether the two Courts below have not appreciated the evidence on record correctly while returning the finding that the plaintiff has failed to prove the allegation that ::: Downloaded on - 15/04/2017 20:11:53 :::HCHP 12 unauthorized additions have been made by the respondent- defendant to his house No. 269?
14. A perusal of the judgments passed by both the Courts below .
will demonstrate that after taking into consideration the evidence led by the plaintiff, the learned Courts below have come to the conclusion that the plaintiff has failed to prove that any unauthorized construction was carried out by the defendant.
15. In my view, in order to prove its case, it was incumbent upon of the plaintiff to have had placed on record material to suggest as to what actually could have been constructed as per Hire Purchase Tenancy rt Agreement by the defendant, what was the actual permission granted in his favour by the plaintiff, when he moved an application for making additional construction and what was actually constructed by him on the spot which was in violation of the approvals granted in his favour by the plaintiff. There is no such material placed by the plaintiff on record. In the absence of the same, in my view, both the Courts below have rightly come to the conclusion that the plaintiff has failed to prove that any unauthorized construction has been carried out by the defendant. The plaintiff has miserably failed to discharge its onus in this regard. The witnesses produced by it have also not been able to prove its case.
Similarly, the documentary evidence led by it is also sketchy and has failed to substantiate its claim. Therefore, it cannot be said that the evidence on record has not been correctly appreciated by the Courts below. Substantial question of law is answered accordingly.
::: Downloaded on - 15/04/2017 20:11:53 :::HCHP 1316. In view of the above, I do not find any merit in this appeal and the same is dismissed. No order as to costs.
(Ajay Mohan Goel) Judge .
April 27, 2016 (bhupender) of rt ::: Downloaded on - 15/04/2017 20:11:53 :::HCHP