Dismissed

Bajrang Lal Sharma S/O Late Bhanwar Lal Sharma v. Sitaram S/O Chimanlal @ Chimanram

Rajasthan HC1 Mar 2024CSA/354/2023

Case brief

AI extract

What is this about?

The Rajasthan High Court dismissed a second appeal filed against a decree of eviction. The tenant-appellant challenged the lower courts' finding that he was entitled to ground rent relief but not the right to reside in the property due to non-user. Upholding the concurrent findings of the Trial Court and First Appellate Court, this Court held that no substantial question of law arose under Section 100 of the CPC. The eviction decree on grounds of non-user remained valid, and no material evidence was ignored or wrongly inferred.

What did the court decide?

The civil second appeal is dismissed. The decree of eviction is upheld.

Bajrang Lal Sharma S/O Late Bhanwar Lal Sharma Vs… — Landlord and Tenant | Rajasthan HC (2024)

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[2024:RJ-JP:10849]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 354/2023

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Bajrang Lal Sharma S/o Late Bhanwar Lal Sharma, Aged About 70 Years, R/o Raghunath Ji Ke Mandir Ki Gali, Shahpura, District Jaipur(Rajasthan).

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----Appellant

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Versus

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Sitaram S/o Chimanlal @ Chimanram, R/o Chelon Ka Mohalla, Shahpura, District Jaipur, Rajasthan.

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----Respondent

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For Appellant(s) : Mr. Satyavrat Sharma with Mr. Pranava Sharma For Respondent(s) : Ms. Amit Jindal with Ms. Dipti Jindal

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment / Order

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01/03/2024

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Instant second appeal is preferred aggrieved from judgment dated 10.08.2023 in civil appeal No. 88/2015 passed by learned Additional District Judge No.2, Shahpura, Jaipur whereby appeal under Section 96 of CPC filed by present appellant-defendant aggrieved from judgment and decree dated 07.09.2015 in civil suit No. 33/2001 passed by learned Civil Judge Shahpura, District Jaipur was dismissed and judgment and decree was upheld.

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Learned counsel for appellant while referring the judgment of Trial Court has submitted that the Trial Court has committed error while arriving at a conclusion that due to non-payment of rent from 01.07.1998 to December, 2000, the appellant-defendant has committed default in payment of rent. He further submitted that the Appellate Court has also committed serious error while not considering the errors committed by the Trial Court. He submitted

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that as per averments and the statements made by appellantdefendant the entire rent was deposited in advance and nowhere the rent was due on date of filing of the suit. Therefore, the Trial Court and the Appellate Court has committed serious error while not considering the evidence of appellant. He also submitted that the material on record clearly indicated that the suit premises was remained in control of appellant and on the suit premises appellant has worked directly and indirectly through his father and brother but the Trial Court and the Appellate Court have failed to consider the evidence on record. He pointed out substantial question of law needs to be decided by this Hon’ble Court which indicates 12 questions as proposed by him in the memo of appeal. He also submitted that the Trial Court and the Appellate Court without considering the legal position have decreed the suit in favour of respondent-plaintiff. He also submitted that the Appellate Court without any cross appeal had considered issue of second default on the basis of non-payment of enhanced rent, which was under dispute. He specifically submitted that the stay order passed by this Court was ignored by Learned Appellate Court while considering issue of subsequent default, which is an act of indiscipline. He pointed out that only on ground of amendment in findings and perversity the second appeal is liable to be admitted. Therefore, there are sufficient grounds which required serious consideration by this Hon’ble Court.

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Aforesaid contentions were opposed by learned counsel for respondent-plaintiff on the ground that there is concurrent finding of the Courts below and unless there appears to be substantial ground, the Court cannot interfere in the findings of the fact. He

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specifically referred the evidence and the facts considered by the Trial Court and affirmed by the Appellate Court.

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Heard learned counsels for the parties and perused the material available on record.

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A suit for eviction was filed in the year 2001 on the ground of default in payment of rent and ground of non-user of suit property. Further, arrears of rent for 36 months on date of filing of suit was also claimed by the plaintiff-respondent. 6. On the basis of pleadings of the parties total 7 issues were framed by the Trial Court. Two witnesses were examined by the plaintiff whereas three witnesses were examined by defendant. The Trial Court has considered the issue that appellant-defendant has committed default in payment of rent but granted him benefit of first default. As a result, no decree of eviction was granted on ground of non-payment of rent.

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The Trial Court after considering the evidence on record found that appellant-defendant tenant has closed the premises without any justifiable reason for more than one year so plaintifflandlord is entitled for decree of eviction under Section 13(k) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The Trial Court has passed a decree of eviction on ground of non-user and arrears of rent in favour of plaintiff-landlord.

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Aggrieved from aforesaid a civil appeal under Section 96 of CPC was filed by the tenant-defendant (present appellant) before learned Additional District Judge and same was dismissed on 10.08.2023 and the judgment and decree dated 07.09.2015 was affirmed.

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Learned counsel for appellant has pointed out modification in issue No.1 and 2 by the Appellate Court though the appeal was preferred by the appellant-defendant (tenant). The first issue which was considered by the First Appellate Court pertains to default in payment of rent and the Appellate Court considered the material on record that appellant has instead of payment of ₹400/- per month has paid ₹150/- per month, thus he committed regular default in payment. The Appellate Court was of the view that this is second default, therefore, defendant is not entitled for any benefit of Section 13(5) and 13 (6) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950.

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Learned Appellate Court approved the findings of the Trial Court on issue of non-user. The evidence on record clearly indicated that present appellant was not carrying business on suit premises rather he was working somewhere else, though a claim is made that the father and brother of appellant were carrying on business of behalf of appellant and appellant was also supervising the business on suit premises during this period.

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We have considered the submissions. Herein, the Trial Court has decreed the suit on the ground of non-user on the basis of material on record which was affirmed by the Appellate Court. We do not find any perversity or illegality while reading the evidence on record. The findings of the Trial Court on this issue of non-user is in consonance with the evidence on record. Therefore, the Trial Court has rightly ordered eviction of appellant-tenant on ground of non-user.

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As regard to default and grant of benefit on first default is concerned, the Trial Court has granted benefit of first default but

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the Appellate Court has modified the issue No.2 up to extent that appellant-defendant has continuously committed second default, therefore, he is not entitled for any benefit under Section 13(5) and 13(6) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Herein, while concluding the judgment the Appellate Court has not opined that in addition to ground of non-user the plaintiff is entitled to get decree on ground of default. Thus, the decree of eviction was not granted on ground of default in payment of any rent. The first Appellate Court while considering issue Nos. 1 and 2 on ground of subsequent default after assessment of interim (provisional) rent has opined about nonpayment of enhanced rent by appellant (tenant) but this opinion and modification ultimately, if ignored even then there are no ground of interference in finding of fact. Thus, there is no perversity in the order of Trial Court and ultimately upheld by the Appellate Court.

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The appellant-defendant has no ground to challenge the decree of eviction on ground of non-user as there is no substantial question of law require consideration by this Court. There is no illegality or perversity in orders of the Court below while considering evidence on ground of non-user of premises by the appellant-defendant (tenant).

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Instant second appeal is preferred under Section 100 CPC and same is reproduced as under:

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(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

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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.

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(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

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(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

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(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:

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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.

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Having considered the submissions of learned counsel for appellant particularly in the light of Section 100 of CPC, I am of the considered view that the appeal cannot be entertained unless there is substantial question of law requiring consideration by this Court. This Court cannot interfere with the pure question of facts while exercising jurisdiction under Section 100 of CPC. Normally, in concurrent finding and dismissal of appeal by the First Appellate Court, this Court cannot interfere in the concurrent finding of facts unless there is substantial question of law.

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Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd . AIR 1962 SC 1314, as under:

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"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

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Hon’ble Court Court in case of Chandrabhan Vs. Saraswati 2022

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SCC Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following manner:

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“(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.”

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Having considered the totality of facts and also material on record I am also of considered view that neither the Trial Court nor the Appellate Court has committed any error while allowing the civil suit for eviction and arrears of rent filed by respondentplaintiff landlord against the appellant-defendant tenant.

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One more issue which was considered by the Trial Court was locus to file civil suit for eviction. The appellant has claimed that

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the property is ancestral property and without impleading other co-sharers the suit cannot be filed for eviction. The Trial Court has rightly considered the definition of landlord as prescribed under Section 3(3) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Thus, this issue was already rightly considered by the Courts below and no perversity is found in the order of the Trial Court.

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Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the scope of Section 100 of CPC

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and summarised the law as under:

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The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles.

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13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction.

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13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that:

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“At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be

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clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was:

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(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;

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(ii) The substantial question of law to precisely state such question;

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(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;

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(iv) Another part of the section is that the appeal shall be heard only on that question.”

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Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors.

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(2019) 17 SCC 71

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13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:-

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a) Not previously settled by law of land or a binding precedent.

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b) Material bearing on the decision of case; and (c) New point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. Therefore, it will depend on facts of each case.

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Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and Chandrabhan v. Saraswati 2022 SCC Online SC

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1273

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13.4 Non-formulation of substantial question(s) of lawrenders proceedings “patently illegal”. This Court’s decisions in Umerkhan v. Bimillabi (2011) 9 SCC 684 and Shiv Cotex v. Tirgun Auto Plast Pvt Ltd. & Ors. (2011) 9 SCC 678 indicate this position.

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Substantial questions of law, as framed by the High Court must be answered in light of the contentions raised therein.

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14.1 If the Court is of the view that a question framed is to be altered, deleted or a new question is to be added, then the Court must hear the parties.

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14.2 For both the above principles, reference may be made to Gajaraba Bhikhubha Vadher v. Sumara Umar Amad (2020) 11 SCC 114 where the following principles were observed: -

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a) The substantial question of law framed by the High Court must be answered, with reasons. Disposing off the appeal without answering the same cannot be justified.

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b) If a need is felt to modify, alter or delete a question, a hearing must be provided to the parties in respect thereof.

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14.3 When the case is admitted, but upon hearing when it is found that no substantial question of law

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arises for consideration, reasons should be recorded in such dismissal.

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In Kichha Sugar Co. Ltd. v. Roofrite (P) Ltd (2009) 16 SCC 280 it was observed:

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“4. Our attention is drawn by the learned counsel for the respondents to the provisions of Section 100(5) of the Civil Procedure Code where the respondent to a second appeal is permitted “to argue that the case does not involve such question” i.e. the questions formulated earlier. No doubt, but then the order on the second appeal should indicate, howsoever briefly, why the questions formulated at the earlier stage had, at the stage of final hearing, been found to be no questions of law.”

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Substantial questions should ordinarily, not be framed at a later stage. If done so, then parties must be given an opportunity to meet them. This Court in U.R. Virupakshappa v. Sarvamangala (2019) 2 SCC 177 held:

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“15. It, furthermore, should not ordinarily frame a substantial question of law at a subsequent stage without assigning any reason therefor and without giving a reasonable opportunity of hearing to the respondents. [See Nune Prasad v. Nune Ramakrishna [(2008) 8 SCC 258 : (2008) 10 Scale 523] ; Panchugopal Barua v. Umesh Chandra Goswami [(1997) 4 SCC 713] (SCC paras 8 and 9); and Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438] (SCC paras 10 and 12)].

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The High Court, in this case, however, formulated a substantial question of law while dictating the judgment in open court. Before such a substantial question of law could be formulated, the parties should have been put to notice. They should have been given an opportunity to meet the same. Although the Court has the requisite jurisdiction to formulate a substantial question of law at a subsequent stage which was not formulated at the time of admission of the second appeal but the requirements laid down in the proviso appended to Section 100 of the Code of Civil Procedure were required to be met.”

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16.1 This Court in Mehboob-Ur-Rehman v. Ahsanul Ghani , (2019) 19 SCC 415 observed in respect of application of Section 100(5) CPC as under:-

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a) It is not rule under proviso to sub-section (5) to hear any other substantial question of law irrespective of the question(s) formulated, so as to annul other requirements of S. 100, CPC.

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b) Proviso to come in operation in exceptional cases where reasons are to be recorded by High Court.

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16.2 It has further been held that the application of this section is only when some questions, substantial in law, already stand framed. (B.C. Shivashankara v. B.R. Nagaraj ) (2007) 15 SCC 387.

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16.3 Wrong application of law laid down by the Privy Council, Federal Court or the Supreme Court, will not

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qualify for substantial question of law and neither wrong application of facts.

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16.4 If on an issue, the trial court discusses the evidence but does not return a finding thereon, High Court in jurisdiction under Section 100, CPC may do so. Reference be made to Govindbhai Chhotabhai Patel v. Patel Ramanbhai Mathurbhai (2020) 16 SCC 255

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This Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722 , observed-

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“6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law…”

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16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 referring to various other cases held:- a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse.

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b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity. c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection.

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Jurisdiction under second appeal not to be exercised merely because an alternate view is possible. It was observed in Hamida v. Mohd. Khalil (2001) 5 SCC 30

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…The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view was possible.”

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This position was reiterated by Avtar Singh & Ors. v. Bimla Devi & Ors (2021) 13 SCC 816. 17.1. In aid of such a restricted application, an essential aspect in ensuring that it does not acquire the nature of a “third appeal” is the limited possibility of appreciation of evidence and connectedly, the restriction on upturning concurrent findings of fact. However, there are certain exceptions to the rule as pointed out by this Court in

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Nazir Mohamed v. J. Kamala (2020) 19 SCC 57 as under:

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“33.4. The general rule is, that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well recognised exceptions are where:

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(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. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”

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17.2 The extent of the same may be underscored by the observation that:

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“32. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in V. Ramachandra Ayyar v. Ramalingam Chettiar [V. Ramachandra Ayyar v. Ramalingam Chettiar , AIR 1963 SC 302] . An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter.”

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Considering the factual findings of learned trial court and affirmed by the appellate court, particularly wherein no perversity or illegality was found, I am of considered view that no legal question which requires adjudication can be framed on the basis of material on record, therefore appeal is liable to be dismissed.

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Hence, the civil second appeal is required to be dismissed.

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As a result, instant S.B. Civil Second Appeal No. 354/2023 is hereby dismissed.

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Misc. application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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MONU /360-C

Bajrang Lal Sharma S/O Late Bhanwar Lal Sharma v. Sitaram S/O Chimanlal @ Chimanram

Case brief

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Bajrang Lal Sharma S/O Late Bhanwar Lal Sharma v. Sitaram S/O Chimanlal @ Chimanram

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