Gujarat High Court
Urmilaba Kiritsinh vs Maharaja Vijayrajsinh Virbhadrasinh ... on 26 June, 2024
NEUTRAL CITATION
C/SA/353/2023 JUDGMENT DATED: 26/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 353 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/SECOND APPEAL NO. 353 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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URMILABA KIRITSINH
Versus
MAHARAJA VIJAYRAJSINH VIRBHADRASINH GOHIL & ANR.
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Appearance:
MR CB UPADHYAYA FOR MR. KIRTAN H MISTRY(10012) for the
Appellant(s) No. 1
for the Respondent(s) No. 2
ADITI S RAOL(8128) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 26/06/2024
ORAL JUDGMENT
1. Present Second Appeal under section 100 of Code of Civil Page 1 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined Procedure, 1908 ('CPC' for short) is filed by appellant challenging judgment and decree delivered in Regular Civil Appeal No.32 of 2019, whereby, learned Additional District Judge, Bhavnagar dismissed the appeal filed by the appellant herein and confirmed the judgment and decree delivered by learned Principal Senior Civil Judge, Bhavnagar in Regular Civil Suit No.623 of 2007 whereby, suit filed by the defendants - original plaintiff was allowed.
2. Brief facts of the case are as under :-
2.1. The respondent herein - original plaintiff filed Regular Civil Suit No.623 of 2007 against the appellant before the learned Trial Court seeking possession, declaration and mesne profit of a servant quarter situated at Neelambaugh Palace, Near Little Flower School, which was given to father of the appellant for his life time who was highly placed officer with Bhavnagar State and which was subsequently, allotted to the appellant in lieu of Plot No.74 (new plot no.64) of Neelambaugh Palace, Jamdarkhana, Bhavnagar.
2.2. That after the death of the father of the appellant, there arose a need of a caretaker for minor son of the then Maharaj i.e. respondent no.1. That after the respondent no.1 grew up, considering the educational qualification and skills of the appellant, the appellant was inducted as a teacher on 20.06.1978 in Shishu-Vidhya Bhavan Balmandir and was thereafter, the appellant was made a Principal/Administrator of the said school. As the appellant and her father had served the State for their entire life, the appellant was allotted Plot No.74 Page 2 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined (New Plot No.64), of Neelambaugh Palace, Jamdarkhana, Bhavnagar for her residence, wherein the appellant started construction in the year 1992. However, one Shreeji Land Development Corporation challenged the said allotment by filing Special Civil Suit No.225 of 1992 seeking declaration and permanent injunction over Plot Nos.58 and 84 of Neelambaugh Palace, Jamdarkhana, Bhavnagar, under a claim that opponents had entered into an Irrevocable Power of Attorney authorizing the said partnership firm to transfer net plotted land for a sum of Rs.5,79,750/-.
2.3. Having realized that appellant might lose her allotment in the said litigation and/or that the litigation was likely to take some time, father of opponent no. 1 herein, allotted the said quarter to the appellant herein, in lieu of the said plot having regard to the services rendered by the appellant to the Royal family. Since then, l.e. the year 1994, the appellant has been living in the said quarter. In the interregnum, due to the illness of her husband and few other family conditions the appellant had to live at various places with her husband, who was suffering from cancer, for some time, and when the family issues subsided the appellant returned to the said allotted quarter.
2.4. After returning to the said quarter, the appellant apprehended that the appellant would be removed from the said place and hence, the appellant was constrained to file a Regular Civil Suit No.1690 of 2005 on 04.10.2005, seeking Declaration and Injunction, wherein the appellant has made it unequivocally clear that the appellant is seeking residential rights over the said property till her lifetime only.Page 3 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024
NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined 2.5. That during the pendency of the said suit, the respondent no.1 preferred Special Civil Suit No.623 of 2007, on 04.08.2007, seeking vacant possession, declaration and mesne-profit of the said quarter. Having engaged an advocate, the appellant was under a bonafide belief that the learned advocate would attend to the proceedings and also inform the appellant of proceedings on regular basis. However, it appears that the advocate for the reasons best known to him neither updated the appellant nor attended the proceedings, which eventually lead to an ex-parte order being passed against the appellant on 25.04.2019. That thereafter the Appellant came to know that such a decree has been passed against her and therefore she approached the Ld. Advocate as to why he did not remain present before the Ld. Court. That the said advocate asserted and assured the Appellant that he will prefer an Appeal against the Decree seeking remand of the matter for according an opportunity to the Appellant. That thereafter the Appellant was not aware as to the passing of the Judgment in the Regular Civil Appeal No. 32 of 2019 dated 24/12/2019. That the concerned Advocate did not even indicate the said aspect to the Appellant herein. Even thereafter, the advocate despite even being aware of the Execution Petition No.655 of 2019 having filed against the appellant again, neither updated the appellant nor attended the said proceedings, leading to order dated 14.10.2022, being passed against the appellant.
2.6. The appellant got to know about the Warrant of the attachment in the month of November, 2022 passed in Execution Petition No.655 of 2019 where in after, the appellant immediately contacted her advocate Shri Jayeshbhai Arjunbhai Page 4 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined Pandya asking for explanation for his absence in the said matter and for the paper book of the said matter, however, to the shock of the appellant, the concerned advocate accepted his non- presence in the matter without any cogent reason. The learned advocate also refused to give any paper/paper book of the said matters. The appellant was constrained to make the application to the registry for procurement of the said document. Hence, being aggrieved and dissatisfied by the judgment dated 25.04.2019 passed in Regular Civil Suit No.623 of 2007 as well as the Judgment rendered in First Appeal No.32 of 2019 dated 24.12.2019, the appellant has approached this Hon'ble Court.
3. Learned advocate Mr.Upadhaya for the appellant firstly referred to following question of law as substantial question of law for admission of Second Appeal :-
"(i) Whether the finding of fact by the appellant Court is vitiated because of non- consideration, misdirection and/or misleading of the relevant evidence or by an erroneous approach to the matter?
(ii) Whether the appellant Court ought to have remanded the matter before the learned trial Court while exercising power under Order 41 Rule 31 of Code of Civil Procedure in light of the fact that the judgment rendered by the learned Civil Court was ex parte and that the Advocate for the appellant did not remain present?
(iii) Whether non-appearance of an Advocate engaged by a litigant and an ex parte order in such proceedings on Page 5 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined account of non appearance of the said Advocate could be entirely attributed to the said litigant?
(iv) Whether the learned Advocate engaged by the appellant herein was duty bound to inform the appellant about the interim orders passed by the learned trial Court and whether such non-intimation is a violation of substantial right of the appellant herein?
(v) Whether the appellant could be said to have been accorded an adequate opportunity of leading evidence in the facts and circumstances of the case?
(vi) Whether the appellate Court is justified in not granting an opportunity of leading evidence to the appellant herein?"
4. Learned advocate Mr.Upadhaya for the appellant firstly criticized judgment recorded by learned Appellate Court on the ground that learned Appellate Court has not given any separate reasons and has not independently examined evidence on record to reach to conclusion for dismissing the appeal. It is further submitted that learned Appellate Court has not followed procedure laid down in Order 41 Rule 31 of CPC, which itself render impugned judgment and decree passed by the learned Appellate Court illegal and against settled principles of law. In support of above submissions, learned advocate for the appellant has relied on following decisions :-
(i) Santosh Hazari v/s. Purshottam Tiwari [(2001) 3 Page 6 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined SCC 179
(ii) Janki Vasudev Bhojwani v/s. Indusind Bank Ltd. [ (2005) 2 SCC 217]
(iii) Vinod Kumar v/s. Gangadhar [(2015) 1 SCC 391]
(iv) Manjula v/s. Shyamsundar [(2022) 1 SCC 391] 4.1. On factual aspect, learned advocate Mr.Upadhaya would submitted that appellant joined as Teacher in school run by respondent herein viz. Little Flower School. Later on she was promoted as Principal. She was relieved from the post on 01.06.2005. It is further submitted that appellant was given immovable property in Neelambaugh Palace for permanent occupancy as she was serving under respondent - Maharaja of State of Bhavnagar. It is further submitted that learned Trial Court was required to decide the issue whether disputed premises was given permanently to the appellant or otherwise but the learned Trial Court framed the issue to the effect that whether original plaintiff proves that defendant is trespasser in the suit property. Learned advocate would further submit that issue of permanent occupancy of disputed premises was core and remained undecided. Learned Trial Court committed serious error in allowing the suit which is further confirmed by first appellate Court by dismissing the appeal preferred by the appellant.
4.2. Another argument canvassed by learned advocate Mr.Upadhaya was that suit was filed by power of attorney of plaintiff. Only power of attorney entered into witness box and not plaintiff. Power of attorney cannot be considered as plaintiff. . He remained only witness of the plaintiff. Whether disputed Page 7 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined premises was given with permanent occupancy to the appellant or not is personal knowledge of the plaintiff and only he can depose before the Court, though he was available for deposition, the plaintiff did not chose to enter into witness box which drew adverse inference.
4.3. In nutshell, argument canvassed by learned advocate Mr.Upadhyaya qua judgment delivered by learned Trial Court is that learned Trial Court has not decided the nature of possession of the appellant and therefore, the impugned judgment suffers from serious illegality. So far as Appellate Court judgment is concerned, it is assailed on the ground that learned Appellate Court has not followed procedure laid down in Order 41 Rule 31 of CPC.
4.4. Upon above submissions, it is submitted to allow this second appeal and to set aside impugned judgments and further to dismiss Regular Civil Suit No.623 of 2007.
5. Per-contra, learned advocate Ms.Aditi Raol for the respondent would submit that learned Civil Court has decided the issue within four corners of the law. The appellant in no uncertain terms in her deposition accepted that she has no documentary evidence to establish that plaintiff of the suit has given disputed premises to appellant on permanent basis. She would further submit that admittedly, the appellant was working as Teacher with Little flower school run by the respondent - original plaintiff, as such appellant was given disputed premises as part of service condition. She has been relieved from the service. In view of that appellant was required to vacate premises Page 8 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined which was part of service as soon as she has been relieved but she continued her possession.
5.1. Ms. Roal learned advocate for the respondent would further submit that since service of the appellant was discontinued from 01.06.2005, her possession over the disputed premises become illegal and she was required to hand over vacate possession to the owner. So far as deposition given by power of attorney is concerned, learned advocate Ms.Raol submitted that there cannot be any cavil on the aspect that power of attorney cannot give deposition in relation to personal knowledge of original plaintiff but present case is completely based on documentary evidence. It is not the case based upon personal knowledge of the plaintiff which could not be deposed by power of attorney holder, even otherwise power of attorney is legal agent and he can file suit on behalf of the principal i.e. original plaintiff.
5.2. Ms.Raol learned advocate further submitted that appellant has filed Regular Civil Suit No.1690 of 2005 against the original plaintiff seeking relief that she may not be dispossessed without following due process of law. She had also filed injunction application in the said suit. Learned Civil Court has not believed that possession of the appellant is legal and hence rejected the injunction application, which was carried to challenge in appeal being Appeal No.3 of 2006 and same was dismissed. It is further submitted that as of now even suit of the appellant is dismissed. She further submitted that appellant has been given sufficient opportunity before the Court below to pursue her case of legal possession but she failed and thereafter, Civil Court has passed decree believing that possession of appellant was possession on Page 9 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined behalf of original plaintiff and she has no right to continue with possession. Thus entire due process is completed.
5.3. It is submitted that appellant has no case. None of the questions framed by the appellant are substantial question of law. Learned Appellate Court has followed Order 41 Rule 31 of CPC in true spirit and addressed all the issued raised before it and gave reasons thereon to discard first appeal. Thus, submission to that extent also fails to stand.
5.4. Upon above submissions, it is submitted to dismiss the Second Appeal.
6. Heard learned advocate Mr.C.B.Upadhaya for the appellant and learned advocate Ms.Raol for the respondent.
7. Let refer section 100 of CPC, which reads as under :-
"100. Second appeal (1)[Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.(2)An appeal may lie under this section from an appellate decree passed ex parte . (3)In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4)Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.Page 10 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024
NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined (5)The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.] "
8. Scope and ambit of section 100 of CPC has been explained by Hon'ble Apex Court in the case of Chandrabhan (Deceased) Through Lrs. Versus Saraswati [2022 (13) Scale 777]. The Hon'ble Apex Court in para 33 has summarized principles relating to Second Appeal under section 100 of CPC as under :-
"33. The principles relating to Section 100 of the CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In Page 11 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well-
recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
9. Regard had been to rival submissions, let summarize dispute between the parties. Original plaintiff claims that appellant has no right to continue in disputed premises, which was given to her as part of service condition. The present appellant who is defendant in the suit claims that she has been given disputed premises with permanent occupancy right. In other words, she claims right to continue to occupy disputed premises till her death.
10. In this regard, if we see record, learned Trial Court framed the following issues at Exh.22 which reads as under :-
"(1) Whether Plaintiff proves that the deft. is trespasser in the suit property and he is entitled to recover the possession of the same ?
(2) Whether the plaintiff proves that he is entitled to recover means profit of Rs. 1000/- P.M. from deft. ?Page 12 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024
NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined (3) Whether the plaintiff proves that he is also entitled to recover the means profit for the period 01.08.04 to 31.07.07 of Rs. 36,000/- from the deft. ?
(4) Whether the plaintiff proves that he is entitled for the cost of the suit as prayed for?
(5) Whether the plaintiff proves that he is entitled to the relief claimed by him?
(6) What Order and relief?"
11. Both the parties lead evidence but the appellant after filing affidavit in chief under Order 18 Rule 4 of CPC, after being cross examined did not remain present to proceed with the matter. Hence, her right to lead further evidence was closed. Evidence produced by both parties have been analyized by the Court below to answer issue no.1 and 4 in affirmative. Issue no.2 is partly affirmed with mense profit of Rs.1000/- per month. Issue no.3 and 5 were also answered partly affirmed.
12. If we address the issue between the parties, the appellant claims that she has been given disputed premises on permanent occupancy right. She entered into witness box (Exh.60). In her cross examination, she has admitted that she did pay penny as rent for the quarter. She has admitted that she has retired from service and she has no documentary evidence to show that said quarter was allotted to her till her death. She has no evidence to display that disputed premises is given to her on permanent occupancy rights.
13. Learned first appellate Court taking aid of section 52 of Easement Act, 1882 decided possession of the appellant as that Page 13 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined of lincensee as she continued to hold possession of disputed premises which was given to her as part of her service, even after she has been relieved from service term. Possession is abstract and is an incidence of ownership and can be transferred by the owner of an immovable property to another. Possession becomes important when there are no title document and other relevant records before the Court but, once the documents and records of titles comes before the Court, it is the title which has to be looked at first and due wieghtage be given to it. Possession cannot be considered in vacuum.
14. In Maria Margardia Sequeria Fernandes v/s. Erasmo Jack De Sequeria (dead) through LR [2012 (5) SCC 370], Hon'ble Apex Court has thoroughly discussed the concept of possession in context to the possession without title document and possession with title document and also discussed about title suit for possession. Relevant para 64 to 68 of the said judgment reads as under :-
"64. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the Courts.
65. A suit can be filed by the title holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession.Page 14 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024
NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined
66. A title suit for possession has two parts - first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected.
67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.
68. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents."
15. Coming back to the case on hand, the original plaintiff has filed suit based on title to get possession from the appellant seeking relief of ejectment as she was ex-employee, whereas, appellant - original defendant claims possession on the ground Page 15 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined that she has right to continue in possession as she has been given disputed premises on permanent occupancy rights. Though pleading is made by the appellant to claim right to continue in possession, no specific pleadings to the effect are made. On the contrary, in cross examination, the appellant in no uncertain terms or in black and white admitted that she has no evidence to show that disputed premises is given to her on permanent occupancy rights. This evidence is sufficient to believe that her possession over the disputed premises is in subordination to legal title and become crystallized once title holder discontinues permission.
16. Another aspect which can be noticed that appellant filed Civil Suit No.1690 of 2005 before the Civil Court to claim that she may not be dispossessed without due process of law. Claim of the appellant - plaintiff in Civil Suit No.1690 of 2005 has been rejected by the competent Civil Court. Injunction application was also rejected. Appeal preferred against injunction application was also rejected. Subsequently, suit was also dismissed finally. Claiming relief of due process of law itself is indicative that appellant claims her possession in subordination to legal title of original plaintiff of Regular Civil Suit No.623 of 2007. So appellant by her evidence as well as pleadings establish that her possession over the disputed premises is in subordination of title and became gratuitous on discontinue of permission by title holder.
17. So far as right to continue in possession is concerned, it is already proved that appellant has no right to continue in possession. Learned advocate Mr.C.B.Upadyaya call into play Page 16 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined phrase "due process of law". This issue has been addressed by Hon'ble Apex Court in Maria Margardia Sequeria Fernandes (supra). Relevant para 81 to 83 of the said judgment reads as under :-
"81. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court.
82. The High Court of Delhi in a case Thomas Cook (India) Limited v. Hotel Imperial 2006 (88) DRJ 545 held as under:
"28. The expressions `due process of law', `due course of law' and `recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed `forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing -- ejectment from settled possession can only be had by recourse to a court of law. Clearly, `due process of law' or `due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner. Now, this `due process' or `due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for Page 17 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the `bare minimum' requirement of `due process' or `due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the `recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."
83. We approve the findings of the High Court of Delhi on this issue in the aforesaid case."
18. The expression 'due process of law' and/or 'recourse of law' have been interchangeably used in the decisions. This means a person should not be condemned unheard. But due process of law shall be settled once opportunity for defendant to file pleadings including written statement and documents before the Court of law has been given along with hearing. Whole trial is not due process of law. It satisfies the moment rights of the parties are adjudicated by the competent court. It is important to highlight this aspect in this case, on the reason that due process of law was satisfied when competent Civil Court had dismissed Page 18 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined injunction application in Regular Civil Suit No.1690 of 2005 filed by the appellant and confirmed in AO No.3 of 2006, whereby the appellant had claimed that she may not be dispossessed without due process of law. The right crystallized in favour of the respondent herein - original plaintiff on the day when appellant lost both the proceedings. So she had no right to continue in possession of disputed premises. Yet, respondent herein - original plaintiff being law abiding citizen moved Civil Suit for recovery of possession disputed premises. Civil Court believed case of the plaintiff in Regular Civil Suit No.623 of 2007 and in Regular Civil Appeal No.32 of 2019, claim of the appellant is disbelieved.
19. So far as filing of suit by recognized agent is concerned, it is permissible in view of Order 3 Rule 1 and 2 of CPC. There is no cavil that power of attorney cannot depose facts which is in personal knowledge of the plaintiff. As discussed herein above, right of the appellant to continue in possession was de- crystallized and mustered in favour of the plaintiff on the day when appellant lost proceedings in Regular Civil Suit No.1690 of 2005 and confirmed in AO No.3 of 2006 and subsequently, also when Regular Civil Suit No.1690 of 2005 was dismissed.
20. One more argument was canvassed by learned advocate Mr.Upadhaya for the appellant that learned Appellate Court has not framed independent point for determination while dismissing the appeal. Judgment of learned Appellate Court is therefore, Page 19 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined suffers from illegality. Let refer Order 41 Rule 31 of CPC, which reads as under :-
"Order 41 Rule 31 of the CPC reads as under:-
"The judgment of the Appellate Court shall be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
21. At this juncture, I may refer to the decision of this Court in case of Kikubhai Parshottambhai Patel Vs. Babubhai Vallabhbhai Patel reported in 2005 (1) GLH 602, the relevant observations are as under:-
"17. Another point which is canvassed by Mr. Shah, learned advocate of defendants, is that under Order 41, Rule 31 of the Code, the appellate Court must have framed points for determination. According to this Court, the said contention is also without substance. In the case of Dumala Vighpara Gram Panchayat (supra), this Court has held that serious issues tried by trial Court were required to be enquired into and scrutinised by appellate Court. In that case, instead the appellate court merely considering that there was an earlier suit in which the permission for construction was granted decided the appeal in favour of the plaintiff. Therefore, the case was remitted to the trial court. The said judgment is of no assistance to the case of the defendants. Further more, the said judgment does not lay down an absolute proposition of law that non-framing of points for determination in appeal by the first appellate Court vitiates the well-reasoned judgment delivered by the Page 20 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined first appellate Judge and hence the same cannot be considered as a substantial question of law.
18. In the case of Navinchandra Nathalal Doshi (supra) this Court has held that all the courts, including the appellate Bench of the Small Causes Court, are required to frame appropriate points for determination at the time of deciding such appeal. When the appellate court is deciding an appeal under the Bombay Rent Act, it is necessary to comply with the provisions of Order 41, Rule 31 of the Code, which also require that the points for determination are framed by the Court. The appellate Court, therefore, should take appropriate care in all such cases to frame appropriate points for determination. In fact, it is the duty of the appellate Court to see that such points for determination are framed. In the said decision this Court has also held that simply because the appellate Bench has not framed the points for determination, that itself cannot vitiate the judgment of the appellate Bench on the aforesaid point. This judgment is squarely applicable to the facts of the instant case and is the complete answer to the contentions raised by Mr. Suresh M. Shah, learned advocate of the defendants. It is true that in this judgment it has been held that it is the duty of the appellate Court to see that points for determination are framed. However, the said judgment has also laid down the proposition that non- framing of points for determination, that itself cannot vitiate the judgment of the appellate Court.
19. One more contention advanced by Mr. Shah, learned advocate of the defendants, is that Rule 414 of the Civil Manual also stipulates that the appellate Court should frame points for determination in appeal as framed in the trial Court but in instant case since the appellate Court has not framed points for determination and since there is a breach of the provisions of Rule 414 of the Civil Manual committed by the first appellate Judge, this matter requires consideration and this being a substantial question of law, the appeal requires to be admitted. This Court finds no substance and merit in the aforesaid contention raised by Mr. Shah. According to this Court, Page 21 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined Rule 414 of the Civil Manual is based on Order 41 Rule 31 of the Code and since this Court has held that no framing of points for determination that itself cannot vitiate the well reasoned judgment of the appellate Court, the aforesaid contention is also required to be rejected and accordingly it is also rejected."
22. At this stage, I may also refer to judgment of this Court in the case of Patel Harji Shamji Versus Dharmshi Meghji Shivla [2019 (1) GLR 67]. Relevant para 63 and 68 of the said judgment reads as under :-
"63. Order 41 Rule 31 CPC provide guidelines for the appellate Court as to how the Court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate Court that the Court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate Court's judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate Court are well founded and quite convincing. It is mandatory for the appellate Court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final Court of fact, the first appellate Court must not record mere general expression of concurrence with the trial Court judgment rather it must give reasons for its decision on each point independently to that of the trial Court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the Court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146; Girijanandini Devi & Ors.Page 22 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024
NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380)
68. Thus, the principle discernible from the case law referred to above, is that whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 of the CPC has to be determined on the nature of the judgment delivered. Noncompliance with the provisions by itself would not vitiate the judgment and make it wholly void. If it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. The judgment of the appellate Court should reflect an honest endeavour to consider the controversy between the parties and that there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations. If all relevant aspects of the matter are gone into by the appellate Court and discussed properly, then the same would be a valid judgment even though it may not have framed the points for determination."
23. Recently, the Hon'ble Apex Court in case of Mrugendra Indravadan Mehta And Others Versus Ahmedabad Municipal Corporation reported in 2024 (0) INSC 401 addressed this issue. The relevant para is 14 and 27, which reads as under:-
"14. Perusal of the impugned judgment reflects that the High Court noted the contentions of both parties and then extracted the issues framed by the Trial Court in extenso. The High Court, however, did not frame the points that arose for determination in the appeal, in terms of Order 41 Rule 31 CPC. The High Court then referred to the arguments advanced on behalf of the parties and started the discussion on merits from para 5.1 of the judgment.Page 23 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024
NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined The High Court observed that compensation had been paid for the shortfall of 974 sq. mts. @ Rs. 25/- per sq. mt. and noted that it was not in dispute that the said compensation amount had been accepted without protest. The High Court also noted that the plaintiffs had not challenged the second varied Town Planning Scheme No. 6, Paldi, under which they were allotted Final Plot No. 187, admeasuring 2278 sq. mts., in lieu of the originally allotted Final Plot No. 463, admeasuring 3890 sq. yds. The High Court also took note of the fact that the plaintiffs supported the second varied scheme before the Division Bench of the High Court in Special Civil Application No. 3980 of 1992 and concluded that they could not make out a grievance with regard to the non- delivery of the remaining 974 sq. mts. of land.
27. This being the legal position vis-a-vis the Act of 1976, it was contended before us by the plaintiffs that the impugned judgment of the High Court is liable to be set aside on the short ground that no points for determination were framed therein, as required by Order 41 Rule 31 CPC. Reliance was placed on Malluru Mallappa (Dead) through Lrs. vs. Kuruvathappa and others, (2020) 4 SCC 313 wherein this Court observed that the first appellate Court is required to set out the points for determination, record the decision thereon and give its own reasoning. It was further observed that, even when the said Court affirms the judgment of the Trial Court, it has to comply with the requirements of Order 41 Rule 31 CPC as non-observance thereof would lead to an infirmity in its judgment. However, it may be noted that no absolute proposition was laid down therein to the effect that failure to frame points for determination, in itself, would render the first appellate Courts judgment invalid on that ground."
24. On going through the impugned judgment of learned First Appellate Court, it appears that learned Appellate Court has discussed all the evidence produced by the parties, re- appreciated the same and while upholding judgment and decree delivered by learned Trial Court even gave fresh reasons after re-
Page 24 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined scanning all the entire evidence. In view of that Order 41 Rule 31 of CPC is substantially complied with.
25. One more argument canvassed by learned advocate Mr.Upadhaya was that learned Appellate Court has not given separate reasons for dismissing the appeal while concurring judgment of learned Trial Court. Identical argument was made before the Hon'ble Apex Court in the case of Laliteshwar Prasad Singh v/s. S.P.Srivastava [ 2017 (2) SCC 415]. Hon'ble Apex Court in para 13 has held as under :-
"13. The points which arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. Even though the appellate court would be justified in taking a different view on question of fact that should be done after adverting to the reasons given by the trial judge in arriving at the finding in question. When appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court; expression of general agreement with reasons given by trial court would ordinarily suffice. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasonings of the trial court is erroneous."
26. While learned Appellate Court concurring with the view taken by the learned Trial Court on evidence, there is no reason for the learned Appellate Court to restate effect of evidence or reiterate reasons given by Trial Court. Therefore, the argument does not sustain.
27. Learned advocate for the appellant submitted that defense of the appellant is jeopardized as learned advocate for the Page 25 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined appellant did not remain present before the Court below and lead necessary evidence. However, in view of above discussion, submission canvassed by learned advocate for the appellant does not survive. To be noted that appellant entered into witness box and she allowed her to be cross-examined. Then she on her own did not file any evidence. To be noted that in cross examination, she has admitted that she has no documentary evidence to establish that her possession on disputed premises is of permanent occupancy. Even otherwise, the submission is afterthought. It was never contended before the first appellate Court when appeal was filed challenging judgment and decree passed by the learned Trial Court. No application for producing additional evidence under Order 41 Rule 27 of CPC was ever made by the appellant before the learned Trial Court. It can be noticed that appellant who submits that because of her advocate did not remain present, she could not produce necessary evidence before the learned Trial Court. But she had produced all the evidence in Regular Civil Suit No.1690 of 2005 when she had claimed that she may not be dispossessed without due process of law. Yet, her claim was not believed by the competent Civil Court. Thus, it is one more attempt on the part of the appellant.
28. In fact, attempt of appellant is calling to quantify costs. Dishonesty on the part of the appellant can be envisioned. Frivolity and vexatiousness is on record and is conspicuous. It was duty of the appellant that once she is relieved from service, she was required to hand back disputed premises to landlord, as disputed premises was given to the appellant as part of service condition but in acquisitiveness and greed she continued illegal Page 26 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024 NEUTRAL CITATION C/SA/353/2023 JUDGMENT DATED: 26/06/2024 undefined possession. She entered into one after another legal proceedings to frustrate and protract right of the title holder. This, it is fit case to impose realistic costs. However, as appellant is female, this Court refrains from imposing costs.
29. For the foregoing reasons, no questions are found to be substantial question of law. The Second Appeal is dismissed at admission stage. Decree be drawn accordingly. Record and proceedings be send back.
30. Consequently, Civil Application does not survive and stands disposed of.
(J. C. DOSHI,J) SATISH Page 27 of 27 Downloaded on : Mon Jul 01 20:41:30 IST 2024