Gauhati High Court
Sri Ramawatar Agarwalla & Anr vs Sri Laxman Prasad Agarwalla on 14 August, 2018
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
R.S.A. No. 177 OF 2017
&
R.S.A. No. 182 OF 2017
Sri Ramawatar Agarwalla and another
... Appellants
-Versus-
Sri Laxman Prasad Agarwalla
..Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA For the appellants : Mr. D. Mozumdar, Sr. Adv., Mr. S. Biswas, Mrs. J Kakoti, Advocates.
For the respondents : Mr. MK Choudhury, Sr. Adv,
Mr. A. Barkakati,
Mr. B. Dutta,
Mr. P. Bharadwaj, Advocates
Date of hearing: : 21.06.2017, 20.07.2017 and 03.08.2017.
Date of judgment : 14.08.2017
JUDGMENT AND ORDER
1) The appellants are the plaintiffs in TS No. 5/2001, and they are
the defendants in TS No. 65/2007, which was a counter-claim filed by the defendant No.2 in TS No. 5/2001.
RSA No.177/2017, RSA No.182/2017 Page 1 of 232) These two appeals under section 100 of the Civil Procedure Code are directed against the concurrent finding recorded by both the learned courts below.
a. RSA No. 182/2017 is directed against the judgment and decree dated 19.04.2017 passed by the learned court of Civil Judge, Tinsukia, in T.A. No. 8/2014, by which the judgment and decree dated 24.02.2014 passed by the learned Munsiff No.1, Tinsukia, in TS No. 5/2001 was upheld. By the said judgment, the suit was dismissed.
b. RSA No. 177/2017 is directed against the judgment and decree dated 19.04.2017 passed by the learned court of Civil Judge, Tinsukia, in T.A. No. 9/2014, by which the judgment and decree dated 24.02.2014 passed by the learned Munsiff No.1, Tinsukia, in TS No. 65/2007 was upheld. By the said judgment, the defendants (i.e. plaintiffs in TS No. 5/2001) were held liable to be evicted from the suit premises described in Schedule-B of the plaint.
3) The sole respondent herein had appeared by filing a caveat. The respondent's side has filed two separate paper-books in both appeals, being a compilation of plaint, written statement, evidence of the witnesses, exhibits, memo of first appeal and judgment and decree passed by both the courts below.
4) At the commencement of the hearing of the appeal under Order XLI Rule 11 CPC, the learned Senior Counsel for the respondent had submitted that he may be permitted to argue in order to satisfy this court that there does not exist any good grounds, not to speak of any substantial questions of law for admitting the appeal. Owing to the nature of the case, and despite strong objection by the learned Senior Counsel for the appellant for proposing to hear the learned counsel at the stage of hearing under RSA No.177/2017, RSA No.182/2017 Page 2 of 23 Order XLI Rule 11 CPC, this court has deemed it fit to hear the learned counsel for both sides on the issue of admission as well as on interim stay to prevent repetition of the respective arguments by both sides.
5) It appears that the bone of contention between the parties in half portion of a tenanted commercial premises, being shop No. 33 in a commercial market in Tinsukia Town of Assam. In the said commercial market there are two adjoining shops, one is numbered 'Shop No.2' and the other is 'Shop No. 33'. One Sri Shyam Sunder Agarwal, who was arrayed as defendant No.1, is the tenant in respect of Shop No.2, from where he was doing business in the name of M/s. Shyam Sundar Binod Kumar. As per the plaint, the original tenant of shop No.33 was Sri Banshidhar Agarwal, the father of the appellant- plaintiff No.1 and the respondent- defendant No.2, from where and doing business in the name of M/s. Kashiram Ramawatar. These two shops were merged and a departmental store in the name of appellant No.2 i.e. M/s. Kamdhenu had been started by the appellant No.1.
6) On 05.02.2001, Sri Ramawatar Agarwala as Plaintiff No.1 (appellant No.1 herein) and M/s. Kamdhenu, as plaintiff No.2 (appellant No.2 herein) filed a suit for declaration and permanent injunction against Sri Shyam Sunder Agarwala, Defendant No.1 (not a party herein, hence he is referred herein as 'Defendant No.1) and Sri Laxman Prasad Agarwala, Defendant No.2 (sole respondent herein), which was registered before the Court of the learned Munsiff No.1, Tinsukia, as T.S. No. 5/2001. For the sake of convenience, except for defendant No.1, the parties to this appeal are referred as arrayed in the cause title.
7) In the plaint of TS 5/2001, it was projected the appellant No.1 developed the business of the appellant No.2, and by dint of his hard work labour and investment of huge money, the said appellant No.2 firm became a household name of Tinsukia Town. By hatching conspiracy, at about 12.30 RSA No.177/2017, RSA No.182/2017 Page 3 of 23 pm of 31.01.2001, the defendants with the help of some associates and women, trespassed into the shop premises of the appellants and started creating nuisance. They did not budge and when there was no effect of the police complaint, the emboldened defendants broke the backside gate of the appellant's shop. On 01.02.2001, the appellant No.1 submitted a petition before the District Magistrate, Tinsukia, and on his direction, the police came and the defendants left at night, but came back once again in the morning of 02.02.2001. On another complaint before the police, the defendants had left, but only after threatening to take back possession of the shop. Thus, by filing the suit on 05.02.2001, the appellants made the following prayers in the plaint:-
a) Declaration that the plaintiff No.1 No.1 is lawful owner of the business of the plaintiff No.2 and is in exclusive physical possession of the premises in which the plaintiff No.2 is established and housed and that the defendants have no manner of right to disturb the plaintiffs' occupation and business therein, except in due course of law.
b) Permanent Injunction restraining the defendants, their men, relatives, agents and associates from trespassing into the said shop premises and disturbing the plaintiffs' business and occupation therein.
c) Cost of the suit.
d) Any other relief to which the plaintiff may be found entitled under the law and equity.
8) On 11.02.2004, the respondent and defendant No.1 filed their joint written statement and counter-claim. It was projected therein that Shyam Sunder Agarwala (Defendant No.1), as proprietor of M/s. Shyam Sunder Binod Kumar had been in possession of Shop No.2 of Block-Q of a building as a tenant of M/s. Tinsukia Development Corporation Ltd., and that Sri Banshidhar Agarwala, the father of appellant No.1 and Respondent as the proprietor of M/s. Kashiram Ramawater was occupying Shop Room No.33 of Block Q of same market under the same landlord and the said to shops are adjacent to each other. Southern boundary wall of Shop No.2 and Northern RSA No.177/2017, RSA No.182/2017 Page 4 of 23 boundary wall of Shop No.33 is common wall. In order to start a departmental store therein, the said common boundary wall was removed and M/s. Kamdhenu (i.e. the appellant No.2 firm) was started. The defendant No.1 did not join the business and, as such, by one written Undertaking and another writing dated 01.03.1998 (Ext.C and Ext.D in TS 65/2007), the possession of shop No. 2 was given to the Appellant No.1 from 01.02.1998 to 31.03.2001, reserving payment of storage charges by the appellant No.1 to the said Defendant No.1.
9) By one writing dated 28.06.1997 (Ext.B in TS 65/2007), the appellant No.1 and the respondent herein agreed to use the entire premises of their father for the business with clear understanding that the respondent shall have a right over eastern half of the premises. It was also projected that their father also gave a letter to the landlord (Ext.F in TS 65/2007) on 22.02.1998 to grant separate rent receipts to his two sons, who shall have half share each in the shop premises. It was projected that on 31.01.2001, the possession of the respondent's 'eastern half part' of the original shop No.2 by removing his stock- in- trade was taken over by the respondent and from the said space, the respondent had also started a business in the name and style of M/s. Laxman Travels. In course of constructing partition wall, the police intervened. Thereafter, some members of the community held a Panchayat, but the dispute could not be resolved. Then, the appellants filed TS 5/2001 and in connection with the said case, the learned Court of Munsiff No.1, Tinsukia, passed an ad-interim order of injunction dated 16.02.2001, inter-alia, directing the parties to main status-quo and further directed the respondent not to trespass. The respondent claims that due to the said order dated 16.02.2001, he was compelled to stay away from the suit premises.
The respondent preferred an appeal against the ad-interim order of injunction, but it was dismissed. The said orders were challenged before this Court by filing CRP 110/2001, which was also dismissed.
RSA No.177/2017, RSA No.182/2017 Page 5 of 2310) Later on, the respondents filed a counter-claim, wherein the respondents prayed for the following reliefs in the counter-claim:-
"I. Dismissal of the suit of the plaintiffs. With cost.
II. Recovery of vacant and khas possession of the
suit premises, as detailed in the Schedule 'A'
and 'B' below, after ejecting /evicting the
plaintiffs therefrom with their dependents and
belongings.
III. Cost of the Counter Claim.
IV. Any other relief other law, equity and justice."
11) The petitioners herein did not file their written statement to the
counter-claim. Hence, the opportunity to file written statement was rejected. The order of rejection was challenged upto this Court by filing CRP 87/2006, but the appellants were denied the opportunity to file their written statement. The counter-claim was then registered as a cross suit, i.e. TS No. 65/2007. Once again, the appellant wanted to file their written statement, which was denied and therefore, the matter was again brought up to this Court by filing CRP 13/2008, which was also dismissed by order dated 27.06.2008.
12) In course of trial, the Court of the learned Munsiff No.1, Tinsukia, framed the following 12 issues in TS 5/2001:-
1. Whether the suit is maintainable?
2. Whether there is a cause of action of this suit?
3. Whether the defendant trespassed into the suit premises on 31/01/2001 by way of breaking the lock of the back side of the suit premises in order to take possession of the same forcibly?
4. Whether the plaintiff No.1 is in exclusive physical possession of the premises and the business establishment of the plaintiff No.2?RSA No.177/2017, RSA No.182/2017 Page 6 of 23
5. Whether the defendant/counter claimant has any individual right, title and interest over the Schedule-B premises mentioned in the counter claim?
6. Whether the defendant/counter claimant (Sri Laxman Agarwal) allowed the plaintiff No.1 to use the Schedule-B premises for the business purpose by executing an undertaking dated 28/06/1977?
7. Whether the plaintiff No.1 allowed the defendant on 31/01/2001 to occupy the Schedule-B premises after removing his all stocks in trade and belonging?
8. Whether the defendant was dispossessed illegally from the Schedule-B premises?
9. Whether the defendant is entitled to get recovery of vacant and khas possession of the Schedule-B premises?
10. Whether the plaintiff is entitled to get a decree as prayed for?
11. Whether the defendant/counter claimants are entitled to the decree as prayed for the counter claim?
12. What other reliefs the parties are entitled to?
13) During the trial of TS 5/2001, the appellants examined 3 witnesses including the appellant No.1. The respondent examined himself and 3 other witnesses and marked 15 documents as exhibits, but out of them, the defendant No.1 failed to turn-up for his cross examination and, as such, his evidence stood expunged, as such, three witnesses were examined on behalf of the respondent and 8 documents [inclusive of A(1) to A(56) i.e. rent receipts] were proved. The relevant issues were decided in favour of the respondent and against the appellants and accordingly, the suit of the appellants- plaintiffs was dismissed vide judgment dated 24.02.2013. Consequently, a decree was also drawn up.
RSA No.177/2017, RSA No.182/2017 Page 7 of 2314) As per the judgment in TS 65/2007, it is mentioned that as there was no pleading, no formal issues were framed, but for the purpose of determination of the suit, the following issues are framed:-
1) Whether the plaintiff has any individual right and interest over the Schedule -B premises mentioned in the counter claim?
2) Whether the plaintiff (Sri Laxman Agarwal) allowed the defendant No.1 to use the Schedule-B premises for the business purpose by executing an undertaking dated 28/06/1997?
3) Whether the defendant No.1 allowed the plaintiff on 31/01/2001 to occupy the Schedule-B premises after removing his all stocks in trade and belonging?
4) Whether the plaintiff was dispossessed illegally from the Schedule-B premises?
5) Whether the plaintiff is entitled to get recovery of the vacant and khas possession of the Schedule-B premises?
6) Whether the plaintiff is entitled to the decree as prayed for?
15) In connection with TS 65/2001, the Respondent examined 4 witnesses, out of which Shyam Sunder Agarwala, abandoned his part of the claim and therefore, PW-2 and PW-4 did not turn up for their cross examination and their evidence stood expunged and, as such, the respondent herein had ultimately examined 2 witnesses and marked 12 exhibits as Ext.A to Ext.H [including Ext.A(1) to Ext.A(56), various rent receipts]. The appellants herein examined 1 witness and marked 15 documents as Ext. 1 to Ext. 15. The learned trial court decided all issues in favour of the respondent herein and found the respondent herein to be entitled to khas possession of the suit premises described in Schedule-B by evicting the appellant herein.RSA No.177/2017, RSA No.182/2017 Page 8 of 23
16) Upon hearing the parties, the learned trial court dismissed the suit (TS 5/2001) filed by the appellants and allowed the counter-claim/ cross-
suit (i.e. TS 65/2007) by two separate judgment and decree dated 24.02.2014.
17) Aggrieved by the said two separate judgments and decrees. Against dismissal of TS No. 5/2001, the appellants filed TA No. 8/2014 and against the decree passed in T.S. No. 65/2007, the Appellants filed TA No. 9/2014.
18) In connection with TA No. 8/2014, the learned first appellate court, i.e. Court of learned Civil Judge, Tinsukia, framed the following points of determination:-
1) Whether the learned Trial Court rightly decided the issue Nos. 3 and 4 against the plaintiff?
2) Whether the learned Trial Court rightly decided the issue Nos. 5 and 6 in favour of the plaintiff?
3) Whether the learned Trial Court rightly decided the issue Nos.
7 and 8 in favour of the plaintiff? (sic. Wrongly written as point of determination No.2).
4) Whether the learned Trial Court rightly decided the issues No. 11 and 12?
19) All the Points of Determination were decided against the appellant and in favour of the respondent and, as such, the said first appeal, i.e. T.A. No.8/2014 was dismissed. The second appeal against the judgment in TA 8/2014 is numbered as RSA 182/2017 before this Court
20) In connection with TA No. 9/2014, the learned first appellate court, i.e. Court of learned Civil Judge, Tinsukia, framed the following points of determination:-
RSA No.177/2017, RSA No.182/2017 Page 9 of 231. Whether the learned Trial Court rightly decided the issues No. 1 and 2 in favour of the plaintiff?
2. Whether the learned Trial Court rightly decided the issues No. 3 and 4 in favour of the plaintiff?
3. Whether the learned Trial Court rightly decided the issues No. 5 and 6 in favour of the plaintiff?
21) All the Points of Determination were decided against the appellant and in favour of the respondent and, as such, the said first appeal, i.e. T.A. No. 9/2014 was dismissed and the decree in the counter-claim of the respondent was upheld. The second appeal against the judgment in TA 9/2014 is numbered as RSA 177/2017 before this Court.
22) This court has heard Mr. Dilip Mozumdar, the learned Senior Counsel assisted by Mr. S. Biswas, the learned counsel appearing for the appellants as well as Mr. Mrinal Kumar Choudhury, learned Senior Counsel assisted by Mr. Bhaskar Dutta, the learned counsel appearing for the respondent.
23) The RSA No. 182/17 has been preferred on the following substantial questions of law:-
i) Whether the finding of the Learned Courts below on issue No.4 is perverse for relying on Exhibit C and D executed between the plaintiff and Sri Shyam Sundar Agarwala whose name was deleted from the array of defendants after the compromise between him and the plaintiff?
24) The RSA No. 177/17 has been preferred on the following substantial questions of law:-RSA No.177/2017, RSA No.182/2017 Page 10 of 23
1) Whether the judgment and decree passed by the learned courts below in favour of the plaintiff (counter claimant) is vitiated by misinterpretation of the so called Exhibit-B /undertaking between the plaintiff and defendant?
2) Whether, the suit of the plaintiff for recovery of vacant possession of the suit premises is maintainable in view of the admission in paragraph 9 of the plaint that the department store was set up in the suit premises pursuant to a mutual agreement by the appellant/defendant who is now running the said business, by taking recourse to Exhibit-B /undertaking?
3) Whether, in view of the pleaded case of the plaintiff regarding the establishment of the departmental store in the suit premises, the terms of Exhibit-B/undertaking is enforceable for recovery of possession of the suit premises by evicting the defendant which would definitely affect the departmental store set up by the defendant admittedly through a mutual agreement between the parties?
25) At the outset, while addressing this Court at the time of hearing under Order XLI Rule 11 CPC, the learned Senior Counsel for the appellant in both appeals has submitted that although the respondent has entered appearance by filing a caveat, but the respondent cannot be heard for the purpose of opposing admission of the appeal. Despite such objection, for the reasons as stated herein after, this court proceeded to hear the learned Senior Counsel for both the sides on admission of appeal as well as for hearing on interim prayer for stay of the judgment of the judgment and decree passed by both the learned courts below.
26) The learned Senior Counsel for the appellant submits that there is no prayer for declaration of any right in the counter-claim and, as such, the RSA No.177/2017, RSA No.182/2017 Page 11 of 23 counter-claim, which was registered as a cross suit only for the relief of possession alone was not maintainable. It is also submitted that the first agreement dated 28.06.2007 (Ext.B in TS 65/2007) had ceased to exist as it got merged with the two subsequent writings dated 01.03.1998 (Ext.C and Ext.D in TS 65/2007). Moreover, it is submitted that the Agreement dated 01.03.1998 (Ext.D in TS 65/2007) was between the appellant No.1 and the Defendant No.1, but no right whatsoever flowed from it in favour of the respondent. It is submitted that on the conjoint reading of the agreement dated 28.06.1997 and 01.03.1998, it would appear that the Appellants had claimed right over the eastern half portion of the Shop No.33, resultantly, it would affect the shop i.e. Appellant No.2 and, as such, the appellants are entitled to protection in respect of the business of the appellant No.2 i.e. M/s. Kamdhenu.
27) The learned senior Counsel for the appellants has submitted that the present appeal involves the question of interpretation of the effect of the Undertaking dated 28.06.2007 (Ext.B of TS 65/2007), which in itself is a substantial question of law. In support of his contention, the learned Senior Counsel for the appellants has relied on the case of (i) Sk. Bhikan Vs. Mehamoodabee & Ors., 2017 (2) GLT (SC) 38, and (ii) P. Chandrasekharan & Ors. Vs. S. Kanakarajan & Ors., (2007) 5 SCC 669.
28) It is also submitted that the learned courts below committed perversity by misconstruing pleadings and evidence on record and, as such, the impugned judgment and decree passed by both the courts below as well as the findings recorded therein are not sustainable. It is submitted that existence of perversity in the judgment is also a substantial question of law on which the present appeal ought to be admitted. In support of this argument, the learned Senior Counsel for the appellant has relied on the case of Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board & Ors., (2010) 13 SCC 216.
RSA No.177/2017, RSA No.182/2017 Page 12 of 2329) It is submitted that the verbal arrangement/ agreement, if any, and the Undertaking (Ext.B of TS 65/2007) had overridden the two writings dated 01.03.1998 (i.e. Ext.C and Ext.D of TS 65/2007). But by clever drafting, it was projected in the counter-claim as if the Undertaking (Ext.B in TS 65/2007) was still live and rights flowed to the respondents through it.
30) It is submitted that the relief prayed for in the counter-claim was without any relief for declaration and in this regard, the learned Senior Counsel for the appellant has referred to the statements made in the counter- claim by the respondent to project that it was an admitted case that his right has been clouded and, as such, the suit for recovery of possession alone was not maintainable.
31) It is submitted that the suit of the respondent, being a counter- claim, was like the plaint in a cross- suit and, as such, it was the sole burden of the respondent to prove his own case and he cannot be permitted to succeed on the basis of weakness of the petitioner herein, who failed to put up his written statement at the appropriate time. It is submitted that the appellant has satisfactorily been able to show that the counter-claim was not maintainable, therefore, despite that no written statement was filed, the same cannot be held to be fatal, because the respondent had not been able to prove his case at all.
32) It is further submitted by the learned Senior Counsel for the appellant that this was not a hearing on merit and therefore, he is submitting only the relevant points for the purpose of admission of the second appeal. In support of his argument, the learned Senior counsel for the appellant has taken this court to the various portion of the evidence of the parties and exhibits, which were filed by the respondent's side.
RSA No.177/2017, RSA No.182/2017 Page 13 of 2333) It is also submitted that the issues framed by the learned trial court were not correctly decided in light of the evidence on record and, as such, it was prayed that the appeal be admitted and heard on merit on the substantial questions of law on which this appeal was presented. No other points were argued. As mentioned herein before, in support of his argument, the learned Senior Counsel for the appellant has relied on the following case citations:-
a. Hero Vinoth Kumar (Minor) V. Seshammal, (2006) 5 SCC 545. b. P. Chandrasekharan & Ors. V. S. Kanakarajan & ors., (2007) 5 SCC 669.
c. Anathula Sudhakar V. Y. Buchi Reddy (Dead) By LRs., (2008) 4 SCC 594.
d. Municipal Committee, Hoshiarpur V. Punjab State Electricity Board & ors., (2010) 13 SCC 216.
34) In respect of the prayer for stay, as made in the connected I.A.(C) No. 1802/17, the learned Senior Counsel for the appellants has submitted that at present owing to the mutual arrangement between the parties, the appellant No.1 is currently doing business under the name and style of M/s.
Kamdhenu, i.e. the appellant No.2 firm and the respondent is admittedly not in possession of the said shop or any part thereof. It is submitted that there are good grounds on which the appellants are pressing for admission of the connected appeal. It has been very strenuously submitted that this court ought not to hear the learned Senior counsel for the respondent in the matter of admission of appeal, where the respondent has no right to make his submission It is submitted that in the guise of hearing the respondent's counsel in the matter of admission, stay and/or interim relief, the admission of the appeal, which is based on good grounds ought not to be postponed.
35) Per contra, the learned Senior Counsel for the respondent has submitted at the outset that in the present case in hand, the appellants RSA No.177/2017, RSA No.182/2017 Page 14 of 23 could not file any written statement against the counter-claim of the respondent and although the matter was agitated upto this court, the appellants had lost their right to file their written statement. It is submitted that in a catena of decisions both by this Court as well as by the Hon'ble Apex Court, it is well settled that without pleadings on record, no amount of evidence can be looked into and that being the position, no substantial question of law could be made out. The learned Senior Counsel for the respondent has referred to the following case citations:-
i. Gitarani Paul V. Dibyendra Kundu @ Dibyendra Kumar Kundu, (1991) 1 SCC 1.
ii. Panchugopal Barua & Ors. V. Umesh Chandra Goswami & Ors., (1997) 4 SCC 713.
iii. Rajgopal (Dead) by LRs. V. Kishan Gopal & Anr., (2003) 10 SCC
653. iv. Hero Vinoth (Minor) V. Seshammal, (2006) 5 SCC 545. v. Sameer Kumar Pal & Anr. V. Sheikh Akbar & Ors., (2010) 11 SCC
777. vi. Union of India V. Ibrahim Uddin & Anr., (2012) 8 SCC 148. vii. Lisamma Antony & Anr. V. Karthiyayani & Anr., (2015) 11 SCC
782.
36) Countering the submissions made by the learned Senior Counsel for the appellant, the learned Senior Counsel for the respondent has submitted that the title of the respondent over his exclusive portion of the shop No.33 was never in dispute and first agreement dated 28.06.2007 (Ext.B in TS 65/2007) was a testimony to the same. It is submitted that there is a unrebutted statement in the plaint that the on 31.01.2001, the respondent had taken over possession over his eastern portion of the shop No.33, and that he had remained in possession in the said shop till the order of injunction dated 16.02.2001 was passed, preventing him to enter into his shop. Moreover, it is also unrebutted that the right of the appellants to RSA No.177/2017, RSA No.182/2017 Page 15 of 23 remain in possession of the shop area falling in the share of the respondent lapsed on 31.01.2001. Under the circumstances, when the right of the respondent over eastern half portion of shop No.33 was undisputed, and there respondent was ousted illegally from his part of the suit premises, it was not required for him to seek declaration and, as such, his suit for possession was maintainable. It is further submitted at the cost of repetition that as against his pleadings, there is no written statement on record and, as such, neither his right, title, interest or possession as on 31.01.2001 is in dispute and as his title was never under cloud, there was no necessity for filing a suit for seeking any declaration. It is further submitted that there is no evidence to show that the right of the respondent over his share in the half portion of shop No.33 was assigned or abrogated and/or relinquished in favour of the appellant, as such, it cannot be presumed that the written undertaking dated 28.06.1997 (Ext.B in TS 65/2007), by which the respondent derived right over the half portion of shop No.33 got extinguished.
37) It is further submitted that from the nature of cross-examination and from the grounds taken before the learned first appellate court, the stand of the appellants was that of denial of Ext.B (in TS 65/2007) and now in the present second appellate stage, the reading of substantial questions on which the appeal is presented, would show that the appellant is now relying on the said document. It is also submitted that on equitable grounds, the second appeal is not maintainable and that only if it is shown that the findings of the learned court below were based on irrelevant materials or by excluding relevant materials, then only, if facts permit, the appeal could be admitted for hearing. No other points were urged.
38) Perused the materials on record and considered the erudite arguments advanced by the learned Senior Counsels for both sides.
RSA No.177/2017, RSA No.182/2017 Page 16 of 2339) On the right of the respondent to be heard at the time of admission of the appeal, the law in this regard appears to be well settled. The Hon'ble Supreme Court of India in the case of Mahadev Govind Gharge Vs. Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, (2011) 6 SCC 321 has, inter-alia, held that the appeal could be heard at the admission stage itself in the presence of other party, particularly in cases where a caveat is lodged by the respondent to the appeal. Therefore, in the opinion of this court, there is no impediment to hear the respondent's side as they have appeared by lodging a caveat. The relevant paragraph 38 of the said case of Mahadev Govind Gharge (supra) is quoted below:-
"38. First and foremost, we must explain what is meant by 'hearing the appeal'. Hearing of the appeal can be classified in two different stages; one at the admission stage and the other at the final stage. Date of hearing has normally been defined as the date on which the court applies its mind to the merits of the case. If the appeal is heard ex-parte for admission under Order XLI Rule 11 of the Code, the Court could dismiss it at that very stage or admit the same for regular hearing. Such appeal could be heard in the presence of the other party at the admission stage itself, particularly, in cases where a caveat is lodged by the respondent to the appeal."
40) In the opinion of this Court, as the appellants failed to file their written statement, there is no pleading on part of the appellants in existence in so far as the cross-suit inform of counter-claim i.e. TS No. 65/2007 is concerned. Moreover, the case of the appellants in the plaint does not touch the version of the respondent as the appellants did not make any statement in TS 5/2001 as regards the existence of Undertaking dated 28.06.1997 (Ext.B of TS 65/2007).
RSA No.177/2017, RSA No.182/2017 Page 17 of 2341) As per the writing dated 01.03.1998 (Ext.C of TS 65/2007), the appellant had undertaken to pay to Shyam Sunder Agarwal (Defendant No.1 in TS 5/2001), a sum of Rs.1,01,000/- as storage (warehouse) charges for his shop i.e. Shyam Sunder Vinod Kumar in first year, Rs.1,21,000/- for second year and Rs.1,51,000/- for third year. It is not the case of the appellant that the respondent had bound himself to pay such money, because all throughout it has been projected that the appellant No.1 was doing the business in the name of appellant No.2 firm. Therefore, this Court is compelled to agree to the submissions made by the learned Senior Counsel for the respondent that the Undertaking dated 28.06.1997 (Ext.B of TS 65/07) did not go into oblivion with the Undertaking dated 01.03.1998 (Ext.C of TS 65/07). Similarly, in the Agreement dated 01.03.1998 (Ext.D in TS 65/2007), it was executed between the appellant No.1 and Shyam Sunder Agarwal (Defendant No.2 in TS 5/2001), by which the shop of Shyam Sunder Vinod Kumar was handed over to appellant No.1 for 3 years from 01.02.1998 (i.e. prior to Ext.B) to 31.01.2001, which shows that the appellant No.2 shop was in existence before the date of execution of the said agreement dated 01.03.1998 (Ext.D of TS 65/2007). The signature of respondent appears along with 2 signatures of the parties and 5 other signatures. Once again, it is not the pleaded case of the appellant that while the said Ext.D (in TS 65/2007) was executed, the respondent had any right over the appellant No.2 shop. Hence, this court does not find that the execution of the writings dated 01.03.1998 (i.e. Ext.C and Ext.D of TS 65/2007) has curtailed any right of the respondent in respect of his share of the shop as mentioned in the Undertaking dated 28.06.1997 (Ext.B of TS 65/2007).
42) It is seen that in the plaint of TS 5/2001, the stand of the appellants is that the appellant no.2 shop was the proprietorship concern of appellant No.1. Hence, the said writing gave rise of the right of the respondent to possession over his portion of the shop No.33.
RSA No.177/2017, RSA No.182/2017 Page 18 of 2343) The appellant had submitted his evidence- on - affidavit in TS 65/2007, wherein he had once again stated that he was separate from the appellant No.1 since the year 1996. Except for general denial, the appellant did not make any attempt to give his counter - version to any statement made by the respondent in his evidence in TS 65/2007. In his evidence- on- affidavit in TS 65/2007, the appellant No.1 has denied the execution, legality and validity of the letter dated 22.02.1998 (Ext.F in TS 65/2007), allegedly written by the father of the appellant No.1 and respondent to the landlord to treat his both sons as tenants. On the contrary, in his cross examination as PW-1 in TS 5/2001, the appellant No.1 herein had admitted that the signature on the said writing was of his father, Banshidhar Agarwala and that the said letter was not given to the landlord. In his cross examination, the appellant No.1 has stated that he did not file any document of the landlord by which consent or approval was given for transfer of tenancy in respect of schedule-A property. Therefore, the finding recorded by the learned trial court that the execution of 22.02.1998 (Ext.F in TS 65/2007) speaks that the respondent acquired some sort of right over the shop premises described in Schedule-B of the plaint of TS 65/2007 does not warrant any interference.
44) The respondent herein had reiterated in his cross examination in TS 65/2007 that he did not file his written statement in the suit and did not file any document in the suit. He further admitted that he did not file any rent receipt of the shop described in Schedule-A and Schedule-B of TS 65/2007 either in TS 5/2001 or in TS 65/2007. Hence, in view of the discussions above, there is nothing to show that the decision of the learned trial court on issues No. 1 and 2 is not sustainable and, as such, the concurrent finding of both the courts below on the said issue No.1 and 2 is not liable to be disturbed.
RSA No.177/2017, RSA No.182/2017 Page 19 of 2345) Coming to the issues No.3 and 4, framed in TS 65/2007, it is seen that there is nothing in the Evidence- on- affidavit filed by the appellant to assert that after 31.01.2001, the respondent had no right over his portion of shop No.33. Hence, the said right having been asserted by the respondent in TS No. 65/2007 and not challenged either by filing written statement or by way of statement made in the evidence- on - affidavit, the concurrent finding on the said issue by both the trial court and the lower appellate court cannot be faulted with.
46) Consequently, in view of the decision on issues No.1 to 4 in TS 65/2007, this court has no material to show that the concurrent finding on the issues No. 5 and 6 is perverse. Hence, this court does not find any sustainable grounds on which the concurrent finding on Issue No.5 and 6 can be interfered with.
47) As there is no pleading by the appellants on record, this court is bound by the ratio of the case of Hero Vinoth (supra). The relevant paragraph 20 of the said case reads as follows:-
"20. ... Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law... ."
48) Coming to the substantial questions of law (as mentioned in paragraphs 23 & 24 above) on which this RSA 177/17 is presented, none of the said questions are found to have been raised or addressed by the appellant before the learned courts below. The pattern of cross examination as well as the Memorandum of First Appeal shows that the appellants did not raise the issue of misinterpretation of Ext.B (in TS 65/2007). Therefore, the RSA No.177/2017, RSA No.182/2017 Page 20 of 23 substantial question of law No.1 appears to be raised for the first time before this Second Appellate Court.
49) In respect of substantial question of law No.2, it is seen that the stand of the appellant all throughout in the plaint of TS 5/2001 as well as in his Evidence- on- Affidavit in TS 65/2007 is that the appellant No.1 was doing the business of Appellant No.2 firm, as such, there is no document to show that there was any intention of the respondent to extend his consent to the appellant No.2 to allow him to carry on his business in the name of appellant No.2 after 31.01.2001 and, as such, the undertaking dated 28.06.1997 (Ext.B of TS 65/2007) clearly establishes the right of the respondent in respect of half portion of shop area of his father, Bansidhar Agarwalla. Hence, the respondent had an indefeasible right to institute a suit (counter-claim in this case i.e. TS 65/2007) to assert his right and to get khas possession of his area by evicting the appellants. Rather, in the plaint of TS 5/2001, there is no statement that the shop of M/s. Kamdhenu (Appellant No.2) was started with mutual consent. Hence, there is no pleading on record in respect of substantial question of law No. 2 projected by the appellants and the said point was also not raised before the first appellate court. Hence, the said point appears to be raised for the first time at this second appellate stage.
50) In respect of the substantial question of law No.3 as projected by the appellants, it is seen that there is a categorical finding by both the learned courts below that the appellants are liable to be evicted from the suit premises described in Schedule-B. Moreover, as stated herein above, it was not the pleaded case of the appellants in TS 5/2001 that the appellant No.2 shop was opened by mutual consent. Hence, whether the business of the appellants would be affected or not can no longer be a live issue. The second appeal is not an equitable jurisdiction, whereby this court can on equitable ground spare the eviction merely because it would affect the RSA No.177/2017, RSA No.182/2017 Page 21 of 23 business of the appellants, when the concurrent finding of fact by both the learned courts below is that the appellants are liable to be evicted. In this regard the paragraph 18 of the case of Hero Vinoth Kumar (supra) is quoted below:-
"18. ... It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section... ."
51) This court is not convinced to accept the argument advanced by the learned Senior Counsel for the appellant that there has been any misconstruction of any document or that there has been a wrong application of any principle of law in construing of any document involved in this case. There has been no misreading of evidence by the learned courts below. Hence, the ratio of the case of (i) Sk. Bhikan (supra), (ii) Hero Vinoth (supra), and (iii) P. Chandrashekharan & Ors. (supra), cited by the appellant does not appear to help the appellants. Similarly, despite the strenuous argument made by the learned Senior Counsel for the appellant, this court is of the considered opinion that there is nothing from which it can be held that the concurrent findings recorded by both the courts below is vitiated by perversity, as such, the case of Municipal Committee, Hoshiarpur (supra), cited on the point does not appear to help the appellant in any way.
52) In view of the discussions above, this Court is not inclined to admit these two appeals in view of concurrent finding of facts and, as such, RSA No.177/2017, RSA No.182/2017 Page 22 of 23 the RSA No. 177/2017, arising out of Counter -claim, registered as TS No. 65/2007 stands dismissed. As a consequence, the RSA No. 182/2017, arising out of TS No. 5/2001 filed by the appellants for declaration and injunction also stands dismissed as nothing survives therein upon decree of eviction passed against the appellant in TS 65/2007.
53) As a result, the impugned first appellate judgment and decree dated 19.04.2017 passed by the learned Court of Civil Judge, Tinsukia, in (i) TA No. 9/2014, and (ii) TA No. 8/2014 as well as the judgment and decree dated 24.02.2014 passed by the learned Court of Munsiff No.1 in (iii) TS No. 65/2007 and (iv) TS No. 5/2001 are both upheld.
54) The appeals stand dismissed with cost.
JUDGE
MKS
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