Patna High Court
Krishna Kumar Singh vs Satya Narain Prasad And Anr. on 26 September, 2005
Equivalent citations: 2006(3)BLJR2303
JUDGMENT J.N. Bhatt, C.J.
1. In this appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter to be called 'the Code'), the appellant original unsuccessful plaintiff, has assailed the judgment and decree passed by the first appellate Court, refusing an order for eviction against the respondent-defendant tenant on the ground that 'the building is reasonably and in good faith required by the landlord for his own occupation', which is a non-residential premises, in terms of the provisions of the Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter called as 'the BBC Act'), while dismissing the appeal and confirming the view of the trial Court in dismissing the suit.
2. The learned counsels for the parties are heard and the entire record has been examined and evaluated.
3. The eviction suit, bearing Eviction Suit No. 1 of 1995, came to be dismissed by the trial Court upon examination and appreciation of the evidence on record and holding that the original plaintiff landlord has failed to establish reasonable and "bona fide, requirement of the demise premises for the commencement of his own business. The learned first appellate Judge has, also, upon consideration of the facts and circumstances and the relevant provisions of law, found no substance in the appeal and confirmed and affirmed the view and the ultimate conclusion recorded by the trial Court in dismissing the suit of the plaintiff on the ground of the provisions of Section 11(1)(c) of the BBC Act. Hence, this second appeal under Section 100 of the Code.
4. Needless to reiterate that the jurisdictional sweep has been very much circumscribed while entertaining the merits of the Second Appeal under Section 100 of the Code, unlike Section 96 of the Code. Section 100 of the Code prescribe appeals from appellate decrees. It is one of the incumbencies upon the Court under Section 100(4) of the Code that in Second Appeal, the Court has to be satisfied that a substantial question of law has been involved and, after formulation of such question, if it is found so, the Second Appeal could be entertained and decided. It is, therefore, very clear that satisfaction of the Court has to be about existence of the factum of involvement of not only question of law, but, in reality, such question of law should be the substantial question of law. Upon true analysis and correct appraisal of the facts and evidence on record and the judgment under challenge, it is undoubtedly found that, as such, there is no any question of law involved in this Second Appeal, much less, substantial question of law, as prescribed under Section 100(4) of the Code.
5. It is well established that in a first appeal, the scope is wider, as the appellate Court can reappreciate and re-examine the facts and circumstance and the evidence on record. Such is not the proposition applicable to the Second appeal against the appellate decrees, in terms of the provisions of Section 100 of the Code. The trial Court, upon examination of the entire testimony and documentary evidence on record, reached to the conclusion that the plaintiff has failed to establish his case for reasonable and bona fide requirement of the business premises. This finding is a pure and simple finding of fact. Not only that it has been re-examined and reconsidered in the first appeal by the learned first appellate Judge in terms of the provisions of Section 96 of the Code, but the learned first appellate Judge has, also, reached to a very unambiguous conclusion that the materials on record and the evidence led by the parties could not be said to be sufficient to establish the material ingredients provided under Section 11(1)(c) of the BBC Act, like reasonable and in good faith requirement for personal necessity of the original plaintiff-landlord. It is, therefore, the verdict of the trial Court, dismissing the suit for eviction, filed by the landlord, confirmed and affirmed by the first appellate Court, which is directly under the challenge in this Second Appeal under Section 100 of the Code.
6. Upon correct appreciation of the facts and circumstances and the entire evidence on record, nothing has been successfully pointed out, nor has it been spelt out from the record that there is any question of law, much less, substantial question of law involved, which is a condition precedent for entertainment of the Second Appeal against the appellate Court decree.
7. Learned counsel for the appellant original plaintiff placed reliance on a decision of the Hon'ble Apex Court in the case of Mattulal v. Radhe Lal . It was a case under the provisions of the Madhya Pradesh Accommodation Control Act, 1961 and the question was under Section 12(1)(f) of the said Act. It was, also, a case of 'bona fide' requirement by the landlord. The question as to whether it was 'a finding of fact or a finding of mixed law and fact' was examined in such a case. After examining the entire case law, it cannot be said that, in any way, it helps the appellant-landlord. On the contrary, it runs counter. In the opinion of this Court it supports the case of the respondent tenant. When there are concurrent findings of fact by the two Courts, whose decrees are under challenge in the Second Appeal under Section 100 of the Code, the Second Appellate Court cannot reappreciate and re-examine the finding of facts.
8. Reliance is also placed on another decision of the Hon'ble Apex Court in the case of Ram Prasad Rajak v. Nand Kumar and Bros and Anr. , rendered in relation to Section 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act (4 of 1983). There was a suit for eviction by the landlord on the ground of 'bona fide' requirement. The finding of fact of the appellate Court in favour of the landlord was found to be based on threadbare examination and evaluation of the evidence in proper perspective. The re- appreciation of the finding of facts and re-examination of the evidence by the Second Appellate Court under Section 100 of the Code was not approved and it was quashed and set aside. This decision, also, does not support the appellant. As such, it lends material reinforcement to the case of the respondent-original defendant-tenant.
9. After having taken into consideration the provisions of Section 11(1)(c) of the BBC Act and the entire testimony and documentary evidence on record coupled with the text and tenor and content and colour of the impugned judgment of the Courts below, this Court has not the slightest hesitation in finding that the concurrent findings recorded by both the Courts below are quite justified, weighty and trustworthy requiring no interference by this Court in exercise of its powers under Section 100 of the Code. Consequently, this Second appeal shall stand dismissed with costs.