Madhya Pradesh High Court
Kishanchand S/O Lavvuram Punjabi vs Ramkrishna S/O Purushottamdas Vaishya on 22 April, 1991
Equivalent citations: 1993(0)MPLJ655
Author: R.C. Lahoti
Bench: R.C. Lahoti
JUDGMENT R.C. Lahoti, J.
1. The defendant/tenant has come up in appeal aggrieved by the judgment and decree of the lower appellate Court directing his ejectment from the suit accommodation, non-residential one, under Section 12(1)(b) and (f) of the M. P. Accommodation Control Act, 1961 (hereinafter referred to as the 'Act'). The scope of the hearing in appeal stands circumscribed, as will be noticed hereafter.
2. Admittedly, the appellant was a tenant in the suit accommodation owned by the plaintiff/respondent. The trial Court dismissed the suit for eviction. On appeal preferred by the landlord/respondent, the lower appellate Court allowed the appeal and held that grounds for ejectment, both under Clauses (b) and (f) of Sub-section (1) of Section 12 of the Act, were made out on evidence.
3. The appeal was preferred on 2-7-1977. However, the decree was already executed and the possession delivered to the plaintiff/respondent on 20-3-1977.
4. On 21-8-1978, when the appeal came up for hearing on the question of admission, this Court passed a detailed order holding that the finding as to the availability of ground for ejectment under Section 12(1)(f) of the Act was not open to challenge. The appeal was admitted for hearing parties only on the question whether there was no sub-letting as contemplated by Clause (b) of Sub-section (1) of Section 12 of the Act. This Court opined that in view of the finding as to the availability of ground under Clause (f) having been confirmed, the decree for eviction would stand, nevertheless availability of ground under Clause (b) was being taken up for consideration in second appeal because in the event the finding being reversed on that issue, the tenant/appellant would be entitled to compensation under Section 12(6) of the Act. In short, this Court was definitely of the opinion that the decree for eviction was not open to challenge in second appeal and the only effect of admitting the appeal for hearing would be on the entitlement of the tenant to compensation under Section 12(6) of the Act.
4-A. On 5-4-1991, the tenant/appellant has moved two applications before this Court : one, seeking amendment in the written statement so as to take a plea that the alleged requirement of the plaintiff had come to an end on account of subsequent events, also that the plaintiff/landlord had other alternative accommodation available now to him, the same having come into possession of the plaintiff during the pendency of the appeal, which accommodation would satisfy the requirement of the plaintiff, if there be any; and the other, under Order 26, Rule 9, Civil Procedure Code, seeking an inspection of the suit accommodation by appointment of a Commissioner to bring on record the fact that the accommodation was still lying vacant unutilised for the purpose for which the eviction was sought. A plea has also been attempted to be brought on record that the alleged delivery of possession on 20-3-1977 in execution of the decree under appeal was false, also illegal and hence liable to be set aside.
5. The learned counsel for the appellant has forcefully submitted relying on Variety Emporium v. R.M. Mohd. Ibrahim, AIR 1985 SC 207, Hasmatirai v. Raghunath Prasad, AIR 1981 SC 1711, P Vyankateshwar v. Motor and General Traders, AIR 1975 SC 1409, Tarabai v. Kubra Bai, 1981 MPRCJ SN 153, Onkarlal v. Firm Rambhajan Ramniwas, 1983 MPRCJ SN 160, and, Baburam v. A.D.J., Dehradun, AIR All. 170 DB that this Court should notice the subsequent events. True it is that an appellate Court is not only entitled but is duty bound to take note of such subsequent events as have a material bearing on right to relief of the parties and the decree under appeal. But the question arises -- until when? Whether before the decree has achieved a finality or even thereafter?
6. The Code of Civil Procedure, 1908, as it stood prior to the Amendment Act of 1976 (No. 104 of 1976) permitted a second appeal being heard fully once the Court was convinced that one or more of the grounds contemplated by Clauses (a), (b) and (c) of Section 100 existed. Under Rules 11 and 12 of Order 41 unless the appeal was dismissed in limine, the appeal had to be heard on the day appointed. There was no provision restricting the scope of hearing of the appeal so long as the contentions advanced at the hearing fell within the scope and ambit of Section 100, Civil Procedure Code. By Amendment Act of 1976, Section 100 has been recast making entertainability of appeal dependent on the satisfaction of the High Court that the case involves a substantial question of law. It will be interesting to read the old and new Section 100 in juxtaposition : --
Section 110--Old Section 100--New "100. Second Appeal. --(1) Save where 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 a High Court, or any of the following grounds namely :--
"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.
(a) the decision being contrary to law or to the some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(c) a substantial error or defect in the procedure provided by the Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision case upon the merits.
(3) In appeal under this section, the memorandum of appeal shall precisely state that substantial question of law involved in the appeal.
(2) An appeal may lie under this section from an appellate decree passed ex parte."(4)
Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(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 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 by it, if it is satisfied that the case involves such question."
Sub-sections (3), (4) and (5) make it clear that memorandum of appeal must state not merely the grounds of appeal but substantial questions of law involved in the appeal. On the date of hearing contemplated by Rule 11 of Order 41, Civil Procedure Code, the appellant shall have to satisfy the High Court of the availability of a substantial question of law involved in the case and the High Court to show its satisfaction, shall have to formulate that question. The High Court cannot simply admit the appeal for hearing parties merely by forming an opinion that it was a case fit to be heard on merits. It is now statutorily obliged to formulate those questions which would limit and circumscribe the scope of hearing finally. The High Court has to be conscious of its jurisdiction at the stage of admitting the appeal, popularly known as 'motion hearing'. Nay, it has to make it appear by formulating the question that it was conscious of the limits of its jurisdiction. The appellant may state the substantial questions of law; it may press the High Court of formulating that question at the stage of motion hearing; and the High Court may either agree or disagree with the appellant's prayer. The Proviso protects the powers of the High Court to hear such other question of law which might not have been formulated by it, if it is satisfied that such a question, the case involves. It is noteworthy that proviso contemplates hearing being permitted on such question not formulated by it (the High Court), but not on question refused to be formulated earlier by it. To put it, in other words, if the High Court while hearing under Rule 11 of Order 41 formulated a positive opinion that a particular question did not arise for hearing or was not a substantial question of law worth being heard at the final hearing, that was the end of the matter and would deprive the High Court of its jurisdiction to permit a rehearing on that question at the stage of final hearing. To put in other words, additional question may be formulated and heard if at an earlier stage the question has been left out from being formulated either because it was not raised or escaped the attention of the Court at that stage. The substantial question of law, left out sub silentio, as neither argued nor considered by the Court, can always be permitted to be formulated at a latter stage, but not when it has been abandoned or refused to be formulated by the Court positively.
7. It is the distinction between the legislative drafting of the old and new Section 100 which had led this Court in holding in Sukhdeo Chunnilal v. Gendalal Salukchand and Ors., AIR 1965 SC 24 that the Court of appeal under Rule 12 of Order 41, Civil Procedure Code was not competent to restrict the ground or grounds upon which the appeal admitted under that rule was to be heard finally. Once an appeal was admitted, even on a single ground, all the grounds of attack were open at the final hearing and this principle applied to revision as well. The law has changed with re-enactment of Section 100 in the new form.
8. This Court having once expressed an opinion that the finding as to genuine requirement of the plaintiff/respondent was not open to be reheard in this appeal eclipsed the jurisdiction of its own to permit a rehearing, not because the earlier order has the effect of res judicata under Section 11, Civil Procedure Code, but upon the general principle of law, creating estoppel by judgment. [See, Maharajadhiraj Sir Rameshwar Singh Bahadur v. Hitendra Singh and Ors., AIR 1924 PC 202] judicial orders passed at one stage of the proceedings have the binding efficacy at the latter stage of litigation, as between the parties as also on the Court; else, the litigation would be an endless rope.
9. In Ram Kirpal v. Rup Kuari, ILR 1884 VI All. 269 their Lordships of the Privy Council with reference to interlocutory judgment observed :--
"It was as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as a final judgment in a suit is binding upon them in carrying the judgment into execution. The binding force of such a judgment depends not upon Section-13, Act X of 1877, but upon general principles of law. If it were not binding, there would be no end to litigation."
The learned counsel for the appellant submits that the order passed earlier under Order 41, Rule 11, Civil Procedure Code was an interlocutory order merely because it did not terminate the hearing of the appeal. Assuming it to be so, it will be useful to read the law laid down in Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993. Their Lordships drew a distinction between the two types of interlocutory orders; one, "those which do not decide in any manner the merits of the controversy in issue in the suit and do not of course put an end to it even in part"; such orders are certainly capable of being altered or varied by subsequent applications for the same relief though normally only on proof of new facts or new situations which subsequently emerged; the other type of interlocutory orders are "designed to ensure just, smooth, early and expeditious disposal of the suit". Even if the rule of res judicata does not apply it will not follow that on every subsequent date of hearing the prayer could be repeated and fresh orders sought. In the case at hand the order dated 21-8-1978 had put an end to the litigation partly by closing the chapter in so far as the finding as to availability of the ground under Section 12(1)(f) of the Act and the 'liability of the appellant to ejectment was concerned. Litigation was put to end, though in part.
10. In Smt. Sukhrani v. Hari Shanker and Ors., AIR 1979 SC 1436, their Lordships held :
"It is true that a decision given at an earlier stage of a suit will bind the parties at later stages of the same suit. But it is equally well-settled that because a matter has been decided at an earlier stage by an interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher Court is not precluded from considering the matter again at a later stage of the same litigation."
11. In Lingayya Ayyayara v. Kandula Gangiah and Ors., AIR 1928 Madras 58 it was held : --
"As a general principle a Judge of the High Court coming fresh to the hearing of an appeal which has been partly heard by another Judge is bound by any finding that the other Judge may have come to in the course of the hearing of the appeal."
12. In Syed Asadullah Kazmi v. Additional District Judge, Allahabad and Ors., (1981) 3 SCC 483, their Lordships noticed the limitations on the powers of the Court to notice subsequent events and said:
"It is true that subsequent events must be taken into account by a statutory authority/Court when considering proceedings arising out of a landlord's petition for ejectment of a tenant on the ground of the landlord's personal need. But in the present case, the order for release of a portion of the accommodation acquired finality before the death of Rajkumar Sinha and the controversy concluded by it could not be re-opened."
The prescribed authority was called upon to take notice of subsequent events. Their Lordships agreed with the proposition that "the prescribed authority retains control over ejectment proceedings, but refused to be impressed by the contention that the prescribed authority could notice subsequent events though the proceedings for ejectment had acquired finality.
13. To sum up, the order dated 21-8-1978 expressly refusing to formulate a substantial question of law permitting a challenge to the finding under Section 12(1)(f) of the Act would bind this Court at all subsequent stages; it cannot permit re-hearing on the same question and cannot change its opinion to hold that the question arises; and, that the judgment and decree of the Courts below to that extent would be deemed to have been confirmed on 21-8-1978 itself attaching finality to that part of the litigation and thereby unabling the Court from taking a note of any subsequent event touching that aspect of the case.
14. In so far as the finding as to availability of the ground under Section 12(1)(b) of the Act is concerned, that again is a finding of fact recorded by the Courts below. No doubt the alleged sub-tenant is none else than the real brother of the tenant. Yet, the facts found by the courts below point out that the tenant had taken the suit accommodation tenancy for himself and was utilising the suit accommodation solely for his own purpose. Thereafter, the defendant/tenant entered into a partnership with his brother and then passed on the control of the premises to his brother, who started his own business activity in the permises. The defendant admitted in his cross-examination that he had shifted to Delhi and the business in the suit premises at Gwalior was run by his brother. He was not in a position to give any details as to the activity carried on in the suit accommodation which he certainly would have been in a position to do, if only, he had any interest left in the business run in the suit accommodation. It is clear that the defendant had withdrawn himself from the suit accommodation inducting his brother therein and the latter alone was in charge and in control of the business run in the suit premises, inviting applicability of Section 12(1)(b) of the Act. Recently this Court in Navalmal v. Laxman, S. A. No. 132/87, decided on 7-3-1991 has held, on a review of the case law available on the point that even a brother can be a sub-tenant and mere relationship, without more, would not detract from attracting the mischief contemplated by Section 12(1)(b) and Section 14 of the Act. The finding that the defendant has sublet the premises has, therefore, to be sustained. [See, Keharsingh v. Yashpal, AIR 1990 SC 2212]
15. It has already been held that subsequent event touching the ground under Section 12(1)(f) of the Act cannot now be noticed. Hence the application under Order 26, Rule 9 or Order 6, Rule 17, Civil Procedure Code filed on 5-4-1991 by the appellant cannot be entertained. The complaint that the possession in the year 1977 was taken by the decree-holder/respondent illegally or irregularly cannot also be entertained as being one highly belated. Moreover, that is a ground which could have been entertained by the Executing Court under Section 47, Civil Procedure Code and is not one noticeable appropriately in second appeal directed against the decree. The applications are rejected.
16. For the foregoing reasons, no fault can be found with the impugned decree. The appeal is held to be without any merit and is dismissed accordingly. No order as to costs. Counsel fee as per Schedule, if certified.