Gujarat High Court
Salemamadbhai Jusabbhai vs Lalitkumar Kantilal Samani on 23 September, 2019
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SA/331/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 331 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/SECOND APPEAL NO. 331 of 2019
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SALEMAMADBHAI JUSABBHAI
Versus
LALITKUMAR KANTILAL SAMANI
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Appearance:
SHASHVATA U SHUKLA(8069) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 23/09/2019
ORAL ORDER
Draft amendment is granted.
Following substantial questions of law are sought to be raised by the appellant :
(A) Whether both the learned courts below have committed substantial error of law in passing the impugned judgments, orders and decrees in disregard of the provisions of section 13(1)(g) and 23 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947?
(B) Whether both the learned courts below have committed substantial error of law in not appreciating that ordinarily the civil court will have no jurisdiction to decide the tenancy dispute between the parties arising out of the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947?Page 1 of 6 Downloaded on : Tue Sep 24 22:20:05 IST 2019 C/SA/331/2019 ORDER
(C) Whether both the learned courts below have committed substantial error of law in holding that the plaintiffs prove that the defendant has illegally occupied the premises more than what was tenanted to him?
(D) Whether both the learned courts below have erred in mis-applying the provisions of sections 63, 67 and 90 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947?
(E) Whether the learned appellate court below has erred in not re-assessing and re-examining the entire record and has not discharged its duties required under section 96 read with order 41 of the Code of Civil Procedure, 1908?
(F) Whether the learned Trial Court as well as the learned First Appellate Court gravely and substantially erred in failing to appreciate that the Respondent-Original Plaintiffs had failed to lay any foundation for leading secondary evidence with respect to a mere xerox copy of the rent agreement marked as Mark 3/3 and the same was as such inadmissible in evidence in light of the provisions of Section 65 of the Indian Evidence Act, 1865?
(G) Whether the learned Trial Court gravely and substantially erred in failing to appreciate that the document produced at Mark 3/3 was not marked into evidence as an Exhibit and that the Learned Trial Court gravely and materially erred in ordering correction of the Rojkam and ordering that the Page 2 of 6 Downloaded on : Tue Sep 24 22:20:05 IST 2019 C/SA/331/2019 ORDER document produced at Mark 3/3 be marked as Exh.39?
(H) Whether the learned Trial Court as well as the learned First Appellate Court gravely and substantially erred in failing to appreciate that mere admission of a document in evidence does not amount to its proof and further that in the absence of foundational evidence for leading secondary evidence the same is inadmissible?
(I) Whether the learned Trial Court as well as the learned First Appellate Court gravely and substantially erred in failing to appreciate that admitting the signature in a photocopy of a document would not amount to admitting the contents of the document?
(J) Whether the learned Trial Court as well as the learned First Appellate Court gravely and substantially erred in failing to appreciate that secondary evidence relating to the contents of a document is inadmissible until non-production of the original is accounted for?
(K) Whether the learned Trial Court as well as the learned First Appellate Court gravely and substantially erred in failing to appreciate that no notice under Section 66 was caused to be issued by the Respondents - Original Plaintiffs and unless the party proposing to submit secondary evidence has previously issued a notice to the party in whose possession the document is available such evidence is inadmissible?
Page 3 of 6 Downloaded on : Tue Sep 24 22:20:05 IST 2019 C/SA/331/2019 ORDER(L) Whether the learned Trial Court as well as the learned First Appellate Court gravely and substantially erred in applying the provisions of Section 90 of the Indian Evidence Act, 1872 and failing to appreciate that if a document produced is a copy and is otherwise admissible as secondary evidence under Section 65 of the Indian Evidence Act, 1872 and is produced from proper custody, then only will the presumption under Section 90 apply and a mere copy is not sufficient to attract the presumptions under Section 90 of the Indian Evidence Act, 1872 as regards the original as held in the case of Basant Singh v. Brij Raj Saran Singh reported in AIR 1935 PC 132 : 62 IA 180 : ILR 57 ALL 494?
(M) Whether the learned Trial Court as well as the learned First Appellate Court gravely and substantially erred in failing to appreciate that Section 22 of the Indian Evidence Act, 1872 clearly states that oral admissions as to the contents of a document are not relevant unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of such document?
(N) Whether the learned Trial Court as well as the learned First Appellate Court gravely and substantially erred in discarding the oral evidence of the witness for the Defendant - Ashok Hotumal (Exh.39A) withoout assigning any reasons and in favour of the so-called rent agreement which was not originally exhibited in the Rojkam and which was sought to be produced only as secondary evidence Page 4 of 6 Downloaded on : Tue Sep 24 22:20:05 IST 2019 C/SA/331/2019 ORDER without any foundation and was therefore inadmissible in law?
(O) Whether the learned Trial Court as well as the learned First Appellate Court gravely and substantially erred in failing to appreciate that the onus and burden was on the Respondents- Plaintiffs to prove that the Appellant - Original Defendant was in possession of a room which was not tenanted property and that the Respondents- Plaintiffs have failed to do so?
(P) Whether the learned First Appellate Court gravely and substantially erred in failing to appreciate that the findings recorded by the Learned Trial Court were bad in law as they were recorded based on a misreading of material evidence and against the provisions of Sections 22, 65 and 90 of the Indian Evidence Act, 1872?
(Q) Whether the learned First Appellate Court gravely and substantially erred in failing to independently assess the evidence on each and every point and failing to dispose of the First Appeal in the proper mode as prescribed by the Hon'ble Supreme Court in H.Siddiqui v. A. Ramalingam reported in (2011) 4 SCC 240 and reiterated in U. Manjunath Rao v. U. Chandrashekhar & Anr. reported in (2017) 15 SCC 309?
Notice returnable after four weeks.
(G.R.UDHWANI, J) Page 5 of 6 Downloaded on : Tue Sep 24 22:20:05 IST 2019 C/SA/331/2019 ORDER ORAL ORDER IN CIVIL APPLICATION (FOR STAY) NO. 1 of 2019 :
Rule returnable after four weeks.
(G.R.UDHWANI, J) BDSONGARA Page 6 of 6 Downloaded on : Tue Sep 24 22:20:05 IST 2019