Kantilal Mohanlal vs Prabhavatiben B. Barbodhaniya and Another

Rajesh H. Shukla, J.—The present Revision Application has been filed by the applicant-original Defendant u/s 29 of the Bombay Rent Act read with Section 115 of the CPC for the prayer that the Judgment & Order passed by the Appellate Bench of the Small Causes Court in Civil Appeal No. 10 of 1995 dated 09.02.1995 confirming the Judgment & Order passed by the Learned Judge, Court No. 10, Ahmedabad in H.R.P. Suit No. 2350 of 1984 dated 29.12.1994 may be quashed and set aside.

The facts of the case briefly summarised are that the Respondent No. 1-original Plaintiff (landlady) filed H.R.P. Suit No. 2350/1984 before the Small Causes Court against the applicant herein (original Defendant No. 1) and the Respondent No. 2 herein (original Defendant No. 2) on the ground of arrears of rent as well as sub letting and also on the ground of permanent structure constructed by the Defendants. After appreciating the evidence and hearing both sides, the Small Causes Court vide Judgment & Order dated 29.12.1994 decreed the aforesaid Suit and directed the original Defendants to handover the vacant and peaceful possession of the suit premises within two months. The said order came to be challenged by the Defendants by way of Civil Appeal No. 10/1995 before the Appellate Bench of Small Causes Court. The Appellate Bench of Small Causes Court, on appreciation of evidence and after considering the submissions of the parties, rejected the appeal summarily vide Judgment & Order dated 09.02.1995. It is this Judgment & Order, which has been assailed in the present Revision Application by the applicant original Defendant No. 2 on the grounds set out in the memo of this Revision Application inter alia that the lower Appellate Court has failed to appreciate the evidence on record. It is also contended that the lower Appellate Court has failed to appreciate that there was no subletting of the suit premises as the applicant original Defendant No. 2 has been residing thereon. It is also contended that the lower Appellate Court has failed to appreciate that there is no evidence with regard to super structure or the permanent structure in the suit premises. It is also contended that the lower Appellate Court has also failed to appreciate the evidence while dealing with the suit possession u/s 13(1)(b) of the Bombay Rent Act.

Learned Counsel, Mr. S.M. Shah for the applicant submitted that the lower Appellate Court has not considered or decided the issue which the Appellate Court is required to decide. He, therefore, submitted that the lower Appellate Court has failed to consider by deciding or permitting all issues or point of determination regarding the controversy and has not given the findings as required. He, therefore, submitted that the approach of the lower Appellate Court (Appellate Bench of Small Causes Court) has failed to decide in accordance with law and, therefore, the present Revision Application may be allowed.

Learned Counsel, Mr. Shah has referred to and relied upon the judgment reported in Hindustan Petroleum Corporation Ltd. Vs. Sri Sriman Narayan and Another, more particularly, Head Note-B and submitted that the Hon''ble Apex Court has discussed about the approach of the first Appellate Court. He submitted that as observed that reasoning on which findings of trial court are based must be considered and discussed, which is not done and, therefore, the impugned judgment of the lower Appellate Court may be quashed and set aside. He pointedly emphasised observations, which reads as under:

This finding has been arrived at by the High Court without considering the reasons given by the Trial Court which had recorded a finding to the contrary in its order. The High Court has not at all discussed the considerations which weighed and the reasons which persuaded the Trial Court in rejecting the prayer for interim mandatory injunction as prayed for by Respondent No. 1.

Learned Counsel, Mr. Shah also referred to and relied upon the judgment of the Hon''ble Supreme Court reported in 2010(10) Scale 222 in case of B.V. Nagesh and Anr. v. H.V. Sreenivasa Murthy and submitted that again the Apex Court has made observations as to manner in which the first Appellate Court is required to be considered. He emphasized the observations made therein to support his submission, which reads as under:

the appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate Court

Learned Counsel, Mr. Shah has also stated that both the Courts below have failed to appreciate that the tax is being paid by the landlady, which is highlighted. It was submitted that from the judgment of the lower Appellate Court, it is evident that he has not referred to or discussed the evidence while confirming the judgment of the Small Causes Court on the major issues like subletting or permanent super structure constructed. He, therefore, submitted that the judgment and order passed by the Court below may be quashed and set aside and the present Revision Application may be allowed. Alternatively, it was submitted that the judgment and order may be set aside and the matter may be remanded back to the lower Appellate Court (Appellate Bench of Small Causes Court) for deciding Civil Appeal No. 10/1995 afresh.

Learned Counsel, Mr. Chirag Patel submitted that both the Courts below have given concurrent findings on all issues and, therefore, in exercise of revisional jurisdiction, this Court may not disturb the concurrent findings as the scope of revisional jurisdiction is limited. He submitted that the findings given by both the Courts below cannot be said to be perverse or without any appreciation of evidence. For that, he referred to both the judgments and evidence and submitted that as discussed in the judgment, the original Defendant No. 2 has admitted in cross-examination the charge of Rs. 50/- per month as rent from the Defendant No. 2 (the applicant herein) and the Defendant No. 2 (the applicant herein) has admitted that he is paying Rs. 50/- per month as rent to the Defendant No. 1. There is further discussion with regard to the construction of the super structure and the lower Appellate Court has also discussed that the contention has been raised which belongings to the Defendant No. 1 to raise a defence. Leaned counsel, Mr. Patel submitted that therefore, from the evidence, it is clearly established that the premises has been subletting without any permission. There is also sufficient evidence with regard to the construction having been made. He further submitted that Exh.45 clearly suggests that the construction is made by the Defendant No. 1. He, therefore, submitted that the concurrent findings arrived at by both the Courts below may not be interfered with and the present Revision Application may not be entertained.

In view of the rival submissions, it is required to be considered whether the present Revision Application can be entertained or not.

At the outset, it is required to be mentioned that there are concurrent findings of facts arrived at on appreciation of evidence by both the Courts below. The trial court has while appreciating the evidence with regard to subletting has specifically referred to the testimony of the witnesses including the original Defendant Nos. 1 and 2. The Defendant No. 1 has admitted that the rent was fixed of Rs. 50/- per month, therefore, it cannot be said that this issue has not been discussed on the basis of the evidence.

Another facet of arguments on appreciation of evidence also cannot be believed as the trial court has also clearly referred to the evidence of the Defendant No. 2 where in the cross-examination, it has been admitted that the suit premises had been kept close after keeping goods and yet it has been admitted that the keys of the premises were with him, meaning thereby, if the person is given permission to put the goods, the keys would be retained with the person, who is in legal possession. In the facts of the present case, it has been admitted that the keys of the premises are also with the Defendant No. 2 and, therefore, the conclusion has been arrived at with regard to the parting of the legal possession by the Defendant No. 1. Similarly, there is discussion with regard to the arrears of rent and there is also discussion with regard to the defence raised by the Defendants that he had been rented the suit premises, which was open land and there is a discussion on this aspect by the trial court that if the Plaintiff had rented the open land, the Defendant had constructed super structure, which is an afterthought. The lower Appellate Court while deciding this issue though has not framed the point of determination or issues, but has discussed and focused on this very issues with reference to the findings arrived at by the trial court on the basis of the evidence. Therefore, the submissions have been made by the learned Counsel, Mr. Shah referring to the judgment of the Apex Court reported in Hindustan Petroleum Corporation Ltd., (supra) and in case of B.V. Nagesh and Anr. (supra) on this aspect about the approach of the first Appellate Court and the procedure to be adopted much emphasizing that point of determination has to be specifically framed and, thereafter, it has to be discussed the findings of the trial court vis-a-vis the evidence is required to be considered in background of the facts of the present case. There is no quarrel with regard to the proposition, which has been canvased but at the same time, as discussed hereinabove, it cannot be said that the trial court has not appreciated the evidence or has committed any material irregularity when there is a specific discussion about the testimony or the evidence of the Defendant Nos. 1 and 2 on this aspect about the subletting of the possession. Further, the defence, which was sought to be raised, has also been considered. The lower Appellate Court has also while deciding this Appeal may not have expressly formed the point of determination, but has dealt with and focused the same issue while confirming the judgment of the trial court. Therefore, it cannot be said that there is any irregularity in the approach by the lower Appellate Court while deciding the Appeal.

A useful reference can be made to the judgment reported in G. Amalorpavam and Others Vs. R.C. Diocese of Madurai and Others, wherein while considering this very issue, the Hon''ble Court has observed in Para No. 8 referring to Order 41, Rule 31 of the CPC Code. It has also been observed in Para No. 9 of the said judgment as under:

there has been a substantial compliance with the provisions of Order 41 Rule 31 Code of CPC has to be determined on the nature of the judgment delivered in each case. Non compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient.

Therefore, in background of the discussion made hereinabove, considering the scope of revisional jurisdiction, which is otherwise very limited, this Court is not inclined to entertain the present Revision Application when there is concurrent findings of facts by both the Courts below.

Accordingly, Second Appeal stands dismissed. Notice is discharged. Ad-interim relief stands vacated.