Jharkhand High Court
Pawan Kumar Poddar vs Omeya Ranjan Jaiswal And Ors on 29 September, 2016
Author: Amitav K. Gupta
Bench: Amitav K. Gupta
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. no. 20 of 2013
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Pawan Kumar Poddar, Son of late Krishna Poddar, resident of Court Road, Ranchi, P.O. G.P.O., PS Kotwali, District Ranchi ........Appellant Versus
1. Omiya Ranjan, son of Sheo Narayan Jaiswal
2. Praveen Kumar Jaiswal, son of Prabhu Shankar Jaiswal
3. Sashi Jaiswal, W/o Chitranjan Jaiswal
4. Jaya Jaiswal, wife of Manoranjan Jaiswal All residents of Hazaribagh Road, PO GPO, PS Lalpur, District Ranchi (Jharkhand)
5. Anjani Kumar Poddar, son of late Sri Krishna Poddar, resident of Court Road, PS Kotwali, Dist. Ranchi, presently residing at Sribhumi Complex, V.I.P. Road, Flat no.3E, Building no.11, PO and PS Lake Town, Kolkata -48 (West Bengal) .......... Respondents
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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant : M/s Amar Kumar Sinha, Mr. K.K. Ambastha, & D.K.
Prasad, Advocates
For the Respondent s : M/s V. Banerjee, Rajeev Kumar, and Advocates
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07/Dated:.29.09.2016
The present appeal is against the judgment passed in Title Appeal no. 55 of 2006, whereby the judgment and decree passed by the court of Additional Munsif, Ranchi in Title Suit no. 06 of 1985 has been affirmed and the appeal has been dismissed.
2. Before adverting to the arguments advanced by the learned counsel in this second appeal it is necessary to recapitulate the facts of the case.
The plaintiff (respondent herein), instituted a suit for eviction on the ground of default and personal necessity. The plaintiffs stated that they have purchased the suit property through various sale deeds and that they are members of joint family as such they become owner/landlord of the suit property. The suit property was let out by the vendor of the plaintiff to the defendant and the monthly rent of the suit premises was Rs.125/-. It is alleged that rent up-to October, 1983 was paid to the previous landlord, but after the suit property was purchased by the plaintiff, the previous landlord refused to accept the rent, with intimation to the tenant (defendant/appellant) that he had sold the property to the plaintiff/respondent but the defendant/appellant did not pay rent to the plaintiff/respondent since November 1983 till the institution of the suit and hence, defendant/appellant is liable to be evicted on the ground of default in payment of rent. Plaintiffs have stated that they have a large family consisting of about 14 members and hence they need the suit property for their personal use and occupation and partial eviction will not suffice the need of the plaintiff as such the entire property was acquired by them.
3. The defendant/appellant's case is that they had no intimation about -2- the sale of the suit property and purchase of the same by the present plaintiff. They came to know of the same in the year 1987, whereafter, they started remitting rent to the present plaintiff, but the plaintiff has refused to accept the rent. It is asserted that earlier rent was remitted from November 1983 onwards to the previous landlord who refused to accept the rent. It is stated that the defendant has been regularly remitting rent through postal money order earlier to the previous landlord and from the date of knowledge regarding the purchase, by the plaintiff of the suit property, to the present plaintiffs, hence, there is no question of default.
On the point of personal necessity, it is stated that the plaintiff has purchased the suit property through four sale deeds, therefore, there cannot be a common personal necessity. It is stated that the plaintiffs are very rich and renowned persons of Ranchi having several properties at Ranchi, therefore, they do not have any personal necessity of the property. It is also stated that the family is not joint as there has been a partition evidenced by a registered deed of partition. That a vast chunk of land was sold by the plaintiffs during the pendency of the suit, hence, no question of personal necessity arises. The defendants have admitted that they are tenants.
4. During the pendency of the First Appeal some additional evidence was brought on record to show that a portion of the suit property was sold out in a court auction proceeding in the matter before the Debt Recovery Tribunal as such, the averments of personal necessity has come to an end to that extent, i.e., to the extent that portion of the property has been sold out to the third party who has neither been impleaded as a party nor he has instituted any suit for eviction.
5. Issues on the point of default, personal necessity as well as partial eviction was framed and the trial court decreed the suit both on the ground of default in payment of rent and on account of personal necessity and also held that partial eviction was not possible. The First Appellate Court affirmed the decree and held that defendant/appellant is liable for eviction on account of default in payment of rent and the plaintiff/ respondent has bona-fide requirement of the entire suit property and that partial eviction is not feasible. Subsequent development has been taken note of by the First Appellate Court, which held that the subsequent development is of no help to the case of the appellant/defendant.
6. Learned counsel on behalf of the appellants, submitted that the court below has wrongly appreciated the case and has passed the judgment in violation of the provision of Order 41 Rule 31 of the C.P.C., by not considering -3- the material evidence available on the record and passed the Judgment in a perfunctory and mechanical manner while affirming the judgment of the trial court. It is argued that subsequent development which goes to the root of the case, is required to be looked into and it cannot be brushed aside. It is urged that in a suit for personal necessity, when the property has been sold out, no decree on the ground of personal necessity could have been granted and the First Appellate Court should have appreciated and considered the fact that the defendant/appellant was regularly remitting the rent to the plaintiff/landlord and earlier to the original vendor/landlord, i.e., vendor of the present plaintiff hence, no case of default in payment of rent was made out.
7. Learned senior counsel, has eloquently argued and canvassed that in the present appeal, the substantial question of law which requires to be determined by this court, are as under:-
I. Whether the finding of default, as recorded by the court below, is vitiated for no-consideration of pleading and evidence of rebuttal and the finding recorded by the court below is perverse?
II. Whether the court has acted contrary to the mandate of Order 41 Rule 31 C.P.C., in not recording its independent findings?
III. Whether the judgment of the court below is vitiated for irrelevant consideration of Ext. E series? IV. Whether the judgment of the court below is vitiated for irrelevant consideration of Section (i) (c) of the Building Act, contrary to the interpretation of the Hon'ble Apex Court?
8. Learned counsel has relied on (2002), 2, S.C.C., 256, wherein the Hon'ble Apex Court has held that if subsequent event makes the relief originally claimed to be improbable or impossible to grant, then the court can take note of such event. Further, if subsequent events or changed circumstance would lead to early end of the litigation, it can be taken note of. Reliance is also placed on (1982), Vol. II, P.L.J.R., 582, where the Hon'ble High Court has held that it is the duty of the court to give finding on the point of partial eviction while relying on A.I.R., 1994, S.C., 489. Reliance is also placed on (2011), Vol. IV, S.C.C., 240, wherein the Hon'ble Apex Court held that independent assessment of evidence on each point and recording of reason in terms of Order 41, Rule 31 and 33 of C.P.C., is necessary.
9. Learned counsel has cited and placed reliance on various judgments of the Hon'ble Apex Court on the question of the ambit and scope of second appeal. In (2011), Vol. IX, S.C.C., 684, the Hon'ble Apex Court has held that formulation of substantial question of law is sine-quo-non for exercise of jurisdiction under Section 100 of the C.P.C. Similarly, in (2010), Vol. II, S.C.C. 407, the Hon'ble Apex Court has held that raising of new question of law -4- based on pleading and evidence is permissible under Section 100 of the C.P.C. In (2007), Vol. IV, B.B.C.J., 248, the Hon'ble Apex Court has held that misreading and misinterpretation of document of title is a substantial question of law. In (2009), Vol. IV, P.L.J.R., 112, S.C., the Hon'ble Apex Court has held that if the First Appellate Court reverses the finding of the trial court, then it cannot do so on mere surmises and conjectures without analyzing the relevant evidence in entirety and if the judgment suffers from appraisal of evidence, then it can be a good ground for challenging the same as substantial question of law in Second Appeal. (2007), Vol. VII, S.C.C., 163, is on presumption of joint family, both backward and forward, if there is evidence that the properties continued to be possessed jointly by the owners. Reliance is also placed on (2010), Vol. XIII, S.C.C., 216, where the Hon'ble Apex Court has held that Second Appeal cannot be decided on merely equitable grounds and it has to be decided on a substantial question of law formulated by the court. (2010), Vol. XII, S.C.C., 530, deals with the scope and ambit of Order 41 Rule 31 wherein the Hon'ble Apex Court has held that the First Appellate Court should frame points for determination and consider the facts and law before deciding the appeal.
10. Heard. Section 100 C.P.C., mandates that the Second Appeal can be heard only on substantial question of law. The points which have been vehemently argued by the learned counsel for the appellant is that the First Appellate Court has not adhered to the spirit of Order 41 Rule 31 of C.P.C., as it has not appreciated the evidence while hearing the First Appeal.
The second contention is that the subsequent development has been out-righty ignored despite the fact that on account of such subsequent development the very cause of action for eviction on the ground of personal necessity has come to an end. It is contended that the issue of default has been wrongly appreciated, despite the fact that the rent was regularly remitted to the landlord through postal money order, but, the court below has failed to take cognizance of the same. It is urged that question of partial eviction has been misinterpreted by the court below while observing that the tenant should be agreeable to such partial eviction in order to give finding on partial eviction.
11. At this juncture, it is pertinent to note that there is concurrent finding of facts on the point of default as well as on the point of personal necessity by both the courts below. The points raised are purely questions of facts. It is settled legal position that concurrent finding on facts cannot be interfered with in the second appeal. The Hon'ble Apex Court, in a decision reported in (2003), 7, S.C.C., 52, has held that without sufficient reasons, High -5- Court in Second Appeal cannot interfere with concurrent finding on facts. Since it is argued that if the finding of fact suffers from perversity it becomes a substantial question of law. The contention of the learned counsel can be responded to and answered by looking to the findings of the First Appellate Court.
12. On the point of default, the First Appellate Court, in its judgment, has categorically held that notice of attornment was sent as per carbon copy of the notice and the postal receipt which is Ext. 1 and 3 respectively. The notice was sent on 13th July 1984 and there is a presumption that if notice is sent through registered post and it is not returned within 30 days, the court shall presume that it has been duly served upon the party. There is no dispute to the fact that the notice was sent on the proper address and the defendant/appellant has not made out a case that he never received the notice. Once there is a presumption in favour of the plaintiff/respondent, then, the onus to rebut the same was on the defendant/appellant, which he has failed to do. In that view of the matter, the court below has rightly held that since July 1984, i.e., after service of the notice, it was incumbent upon the defendant/appellant to remit the rent to the present plaintiff. Admittedly, the defendant/appellant has not remitted the rent to the present plaintiff since July 1984 till the date of institution of the suit and a case of default is made out. Therefore, in the considered opinion of this court, the First Appellate Court has appreciated the evidence independently, consequently, no substantial question of law on the point of default arises.
13. It is emphatically stressed and argued that in view of the subsequent development, i.e., part of the property was sold out to some third party in a proceeding before the Debt Recovery Tribunal, the courts below failed to appreciate that bona-fide need of personal necessity did not survive. In response to the contention of the learned counsel it is imperative to reiterate that it is well settled legal position that it is pernicious and unjust to shut the door on the plaintiff, who is on the eve of reaching the finale after passing through all the previous levels of litigation, merely on the ground that certain developments occurred pendentelite just because the opposite party has succeeded in prolonging the matter for such a long period. It is but natural that during this long intervening time many events are bound to take place in relation to the parties as well as the subject matter of the lis due to the procedural legal intricacies and the mechanism.
Keeping in view this factual aspect, it is amply clear from the facts of the present case that the suit was instituted in the year 1985 and the first appeal was decided in the year 2012. It is noticed that the trial prolonged for 21 -6- years and the suit was decreed in the year 2006. Thus, in such circumstance, no person can be allowed to take the benefit or advantage of such uncalled for delay. As is evident, the subsequent development took place during the pendency of the first appeal and only a part of the suit property has been sold out. It is also noticed that the court below has placed reliance on the decision reported in (2001), 4, S.C.C., 534, wherein the Supreme Court, while referring to Order 22 Rule 10 has held that if no step is taken to take the leave of the court, to continue the lis, still it may be continued by or against the original party and the successor-in-interest will be bound by, and is entitled to the fruit of the decree.
Therefore, in view of the above settled principle, and taking into account the facts of the present case, this court is of the considered opinion that such subsequent development shall have no bearing and is of no help to defendant/appellant, more so when the defendant/appellant is also held liable for having defaulted in payment of rent, which in itself is a sufficient ground for eviction. Consequently, the subsequent development of sale of a part of the suit property will not affect or have any impact with respect to the default in payment of rent. As discussed above, in view of the observation of the Hon'ble Supreme Court, even for the purpose of personal necessity, a party cannot be disadvantaged on the ground of protracted litigation.
14. On the point of partial eviction, it is significant to mention that partial eviction is of no significance, if there is any additional ground for eviction, apart from personal necessity. The First Appellate Court has rightly concluded that the proviso of Section 11(i)(c), mandates that the tenant should be agreeable to such partial eviction before any finding on the point of partial eviction is given. The Hon'ble Patna High Court in the case of Bata India Limited Vs. Dr. Md. Qamruzzama 1993 (1), P.L.J.R., 87, has held that a tenant should be agreeable to such partial eviction in order to give a finding on the point of partial eviction which has also been relied on in the decision reported in 1996, (2), B.L.J.R., 828. This aspect has also been affirmed in C.R. no. 39 of 2013 in the case of Lalchand Agarwal Vs. Raj Kishore Prasad by judgment dated 14.08.2004 of Patna High Court.
In the backdrop of the discussions made hereinabove and the settled legal position it is held that the courts below have not committed any error in law on the point of partial eviction.
15. It is significant to note that tenant has been defined under Section 2(b) read with [explanation II], as contained under Section 2(h)(iii) of the Bihar (now Jharkhand) Buildings (Lease, Rent & Eviction) Control Act, 1982 and the -7- heirs of the original tenant are statutory tenants who have limited right to occupy the property for a period of one year. In that view of the matter, the right to possess the suit property as a tenant after the statutory period of one year comes to an end. In the instant case, the appellants claim right to possess the property as tenant after the death of the original tenant and the tenancy had come to an end after lapse of one year, hence, the defence qua tenant is not available to the appellant.
16. Therefore, as discussed above in the attending facts and circumstances of the case it is held that no substantial question of law has arisen or involved in the present case required to be decided under Section 100 of the C.P.C. The finding of the lower appellate court does not merit any interference by this court.
17. In the result, the appeal stands dismissed.
(Amitav K. Gupta, J.) Tarun /-