Lal Chand Dosaya vs Babu Lal

Bela M. Trivedi, J.—The instant second appeal arises out of the judgment & decree dated 06.04.2013 passed by the Additional District & Sessions Judge No. 5, Ajmer (hereinafter referred to as "the appellate court") in Civil Appeal No. 129/2012, whereby the appellate court has confirmed the judgment & decree dated 25.09.2002 passed by Civil Judge (Junior Division) & Judicial Magistrate (South) Ajmer (hereinafter referred to as "the trial court") in Civil Suit No. 245/89, decreeing the suit of the respondents-plaintiffs for eviction in respect of the suit shop.

The facts in nut shell are that the original plaintiff Shri Babulal, (since deceased, now represented by the respondent Nos. 1/1 to 1/10), Shri Jagdish Prakash, Shri Shiv Shankar, Shri Anil Kumar, Shri Jawahar Lal, and Shri Santosh Kumar had filed the suit on 18.08.1989 seeking eviction of the original defendant Shri Lal Chand Dosaya, (since deceased, now represented by appellant Nos. 1/1 & 1/2) from the suit shop, which was let out to Shri Lal Chand at the monthly rent of Rs. 70/-. It was alleged in the plaint inter alia that the defendant-Lal Chand had paid rent upto 30.11.88 and then had committed default in making payment of rent for more than 6 months; that the defendant had also raised construction of permanent nature in the suit shop, and thereby had also caused damage to the suit shop. It was alleged that the said suit shop was bonafidely required for the family members of the plaintiffs and more particularly for Shri Shiv Shankar for starting his own business. The original plaintiffs had also alleged that the defendant Babulal already had one property i.e. big Nohra, where he could do his business, and also another shop situated opposite to the suit shop, which he had given on rent, and thus the defendant had the alternative shop available for his own business. In the short, the plaintiffs had filed the suit on various grounds seeking eviction of the defendant. The said suit was resisted by the original defendant Lal Chand by filing the written statement, denying the allegations of non payment of rent as alleged. It was also denied that he had carried out any permanent construction or caused any damage to the property. It was further contended that Shri Shiv Shankar was carrying on his business with his father Babulal, and he or any of his family member did not require the suit premises bonafide. The defendant had also contended that the plaintiffs had other 7 shops out of which 1 shop was vacant and Shri Shiv Shankar could have carried on his business in the said shop. The original defendant, therefore, had urged to dismiss the suit.

The trial court from the pleadings of the parties had framed the following issues:-

The trial court after appreciating the evidence on record, laid by both the parties, had decreed the suit by deciding issue Nos. 1 & 4 in favour of the defendant Lal chand, and issue Nos. 2, 3, 6 and 7 against the defendant. The issue No. 5 was not pressed for by the defendant. The trial court decreed the suit also by holding that partial eviction in respect of the suit shop was not possible. Being aggrieved by the said judgment & decree passed by the trial court, the original defendant Lal Chand had preferred the appeal before the appellate court. During the pendency of the appeal, the original defendant Lal Chand, and the original plaintiffs Babulal, Jagdish Prakash and Shiv Shankar expired, and therefore their respective legal representatives were brought on record. In the appeal before the first appellate court, the present appellants, who were the legal representatives of the original defendant Lal Chand had made an application under Order VI Rule 17 read with Section 151 of CPC on 08.03.2006, contending inter alia that Shri Shiv Shankar had let out one shop to one Ramesh Kumar about 1 or 2 months back, and the respondents were also having other shops in the same building where the disputed shop was situated, and therefore Shri Shiv Shankar did not require the suit shop. The said application was replied by the respondents stating inter alia that there was no vacant shop available with them as alleged, and that the disputed shop was situated in the main market which was suitable for the business of the respondents. It further appears that subsequently the said Shiv Shankar also having expired on 12.05.2010 during the pendency of the appeal, the appellants moved another application alleging that after the death of Shiv Shankar, his necessity had also come to an end. The said application was also resisted by the wife of the deceased Shiv Shanker by filing the reply stating inter alia that Shri Shiv Shankar had executed a will on 30.04.2010 in favour of his nephew Jitendra Gupta and that the suit shop was required for Jitendra Gupta for his business.

The lower appellate court after taking into consideration the evidence on record and the submissions made by the respective counsels for the parties, dismissed the appeal as well as the application filed by the appellants under Order VI Rule 17, vide the judgment & decree dated 06.04.2013. Being aggrieved by the same, the present second appeal has been filed by the appellants.

It appears that in the instant case also the appellants had filed an application under Order XLI Rule 27 seeking production of the copy of the will dated 30.04.2010 executed by Shri Shiv Shankar, and one rent note dated 03.07.2012, by way of additional evidence. The said application was ordered to be heard alongwith the appeal vide the order dated 04.04.2014. When the second appeal was listed for admission on 26.05.2014, the Court had heard the preliminary submissions made by the learned counsels for the parties and had adjourned the appeal to 09.07.2014. The matter was thereafter adjourned from time to time at the request made by the parties on 11.07.2014, 14.07.2014, 23.07.2014, 04.08.2014, 14.08.2014 and 21.08.2014, as the Advocates had abstained themselves from the work due to the strike call given by the Bar Association. However, the parties in the meantime submitted the written submissions prepared by their respective counsels, and hence the appeal is being decided considering their written submissions and the record of the case.

It has been sought to be submitted by the appellants that during the pendency of the first appeal before the first appellate court, the original-plaintiff No. 3 Shri Shiv Shankar for whose requirement the suit shop was sought, had expired and therefore on the death of Shri Shiv Shankar, his requirement or necessity of suit shop also had come to an end. According to the appellants, the first appellate court had confirmed the judgment & decree passed by the trial court on the ground that after the death of Shri Shiv Shankar, the suit shop was required for his wife Smt. Rama Gupta, however as per the will dated 30.04.2010 executed by Shri Shiv Shankar, the suit shop was bequeathed to his nephew Jitendra Gupta, and therefore requirement of Smt. Rama Gupta could not have been considered. It is also submitted that there was no pleading on record that the suit shop was required for the necessity of Jitendra Gupta, and therefore his requirement of suit shop also could not be considered. The appellants have relied upon the various decisions of the Apex Court to substantiate their contentions that the subsequent events necessary for deciding the appeal should be taken into consideration. It has also been contended that the first appellate court had committed an error in dismissing the application of the appellants under Order VI Rule 17 seeking amendment in the written statement for bringing on record the subsequent events which took place during the pendency of the first appeal. According to the appellants, the said application having been dismissed by the first appellate court, and the relevant documents i.e. the will and the rent note having not been produced before the first appellate court, the same have been sought to be produced in the present appeal by filing an application under Order XLI Rule 27 of CPC. The appellants have also submitted that the finding with regard to the appellants being in possession of three shops was perverse, as in the two shops, the elder son of the appellant was carrying on his business, and therefore the said shops were not available to the appellants. It has also been submitted that the other property belonged to the wife of the original-defendant Shri Lal Chand, and could not be said to be available to the appellants. According to the appellants, the appeal involves substantial questions of law as set out in the appeal memo, which require consideration.

The respondents-plaintiffs on the other hand have contended in their written submissions that there being concurrent finding of facts recorded by both the courts below, the second appeal deserves to be dismissed, more particularly in absence of any substantial questions of law being involved in the appeal. It has been further contended that since the deceased Shiv Shankar had no offspring from the wedlock, he had executed the will in favour of his nephew Jitendra Gupta assigning the responsibility of maintaining Smt. Rama Gupta. According to the respondents, Jitendra Gupta would be supporting the respondent Rama Gupta in conducting her business in the suit shop, and therefore it could not be said that the respondent Rama Gupta did not require the suit shop. As regards letting out the other room, it has been contended that size of the said room was 4 feet in width and was situated in the inner lane, not fit for use as a shop, whereas the suit shop is about 4 times bigger in size, situated in the main market, very much suitable for the business. In reply to the contention raised by the appellant as regards the title of Smt. Rama Gupta, the respondents have contended that the appellants had continued to pay the rent in respect of the suit premises to Smt. Rama Gupta, after the death of Shiv Shankar, and therefore it did not lie in the mouth of the respondents to say that Smt. Rama Gupta had ceased to be the landlord of the suit premises. Relying upon certain provisions of Indian Succession Act, the respondents have sought to submit that when the executor or administrator is a legatee, his assent to his own legacy is necessary to complete his title to the property, and that in the instant case Shri Jitendra Gupta having stated in his reply to the application filed by the appellants under Order XLI Rule 27 that he did not assent to the said will executed by Shri Shiv Shankar, his wife Smt. Rama Gupta had continued to be the landlord as per the provision contained in the said Act, after the death of Shri Shiv Shankar. The respondents also relied upon various judgments of Apex Court to submit that if the deceased landlord had any dependent member in the family, in absence of pleading also, it could be assumed that the requirement pleaded extended also to the dependent member of their family. It has also been submitted that as per the settled legal position, the crucial date for deciding as to the bonafide requirement of the landlord would be the date of his application for the eviction and that the courts need not consider each and every subsequent event, more particularly the one which is not germane to the relief claimed.

Now, so far as the application under Order XLI Rule 27 seeking the production of additional evidence is concerned, it appears that the appellants have sought to produce the will dated 30.04.2010 executed by the deceased Shri Shiv Shankar and one rent note dated 03.07.2012 executed by Smt. Rama Gupta wife of Shri Shiv Shankar in favour of one Shri Surendra Kumar. In this regard, it is pertinent to note that the provisions of Order XLI would apply to order XLII only to the extent they may be applicable. Even for the production of additional evidence at the appellate stage, the parties have to satisfy the criteria laid down in Order XLI. In the instant case, the appellants had ample opportunity to produce the documents i.e. the will dated 30.04.2010 and the rent note dated 03.07.2012 before the first appellate court, which they had failed to produce. Hence, they can not be permitted to produce the same at this stage in the second appeal.

It is needless to say that the existence of substantial questions of law is the sine qua non for the exercise of jurisdiction under the provisions contained in Section 100 of CPC. The scope of exercise of powers by the High Court under Section 100, CPC has been elaborately considered by the Apex Court in case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., , in which it has been observed as under:-

"12. The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. v. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., , the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju and Others, :-

"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."

and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:

"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."

In Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate Vs. Rama Krishna Narain and Others, , also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to certificate under (the then) Section 110 of the Code.

A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. 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. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

It is also settled legal position that the findings of facts recorded by the courts below if found based on proper appreciation of evidence and the material on record, and if no perversity, illegality or irregularity is found in those findings, the High Court should not interfere with the concurrent findings of facts recorded by the lower courts. Beneficial reference of the decision in case of Sheel Chand Vs. Prakash Chand, be made in this regard.

In the instant case, the suit was originally filed by the deceased Babulal and other respondents on various grounds including the ground of bonafide requirement for Shri Shiv Shankar and also for other family members. The trial court believing the bonafide requirement of the plaintiff Shiv Shankar had decreed the suit after proper appreciation of evidence. During the pendency of the appeal filed by the appellants before the lower appellate court, the said Shiv Shankar had expired and the appellate court had dismissed the appeal of the appellants holding that the bonafide requirement of the suit premises for the other members of the respondents'' family did not end on the death of Shri Shiv Shankar, and that the suit shop was required bonafide for the wife of Shri Shiv Shankar i.e. Smt. Rama Gupta. Much emphasis has been given by the appellants on the will executed by Shri Shiv Shankar bequeathing the suit shop to his nephew Jitendra Gupta, to show that Smt. Rama Gupta wife of Shri Shiv Shankar had ceased to be the landlord as per the said will, however the Court does not find any substance in the said submissions. Apart from the fact that Shri Jitendra Gupta, in whose favour the will was executed, had filed his reply to the application filed by the appellants under Order XLI Rule 27 that he did not assent to the will, the appellants themselves had continued to pay rent to Smt. Rama Gupta accepting her as the landlady after the death of Shri Shiv Shankar.

With regard to the subsequent events, it has been held by the Apex Court in case of Seshambal (dead) through L.Rs. Vs. Chelur Corporation Chelur Building and Others, that"-

"while it is true that the right to relief must be judged by reference to the date suit or the legal proceedings were instituted, it is equally true that if subsequent to the filing of the suit, certain developments take place that have a bearing on the right to relief claimed by a party, such subsequent events cannot be shut out from consideration. What the Court in such a situation is expected to do is to examine the impact of the said subsequent development on the right to relief claimed by a party and, if necessary, mould the relief suitably so that the same is tailored to the situation that obtains on the date the relief is actually granted."

The Apex Court considering various other judgments in respect of subsequent events has made very pertinent observations in case of Pratap Rai Tanwani and Another Vs. Uttam Chand and Another, , as under:-

"7. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale after passing through all the previous levels of the litigation merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period.

We cannot forget that while considering the bona fides of the need of the landlord the crucial date is the date of the petition. In Ramesh Kumar v. Kesho Ram a two-Judge Bench of this Court (M.N. Venkatachalia, J., as he then was and N.M. Kasliwal, J.) pointed out that the normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced and the only exception is that the court is not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. What the learned Chief Justice observed therein is that: (SCC pp. 626-27, para 6)

"6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a ''cautious cognizance'' of the subsequent changes of fact and law to mould the relief."

The next three-Judge Bench of this Court which approved and followed the above decision, in Hasmat Rai and Another Vs. Raghunath Prasad, has taken care to emphasise that the subsequent events should have "wholly satisfied" the requirement of the party who petitioned for eviction on the ground of personal requirement. The relevant passage is extracted below: (SCC pp. 113-14, para 14)

"Therefore, it is now incontrovertible that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up which would show that the landlord''s requirement is wholly satisfied then in that case his action must fail and in such a situation it is incorrect to say that as decree or order for eviction is passed against the tenant he cannot invite the court to take into consideration subsequent events."

The judicial tardiness, for which unfortunately four system (has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well as the subject-matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system, it shatters the confidence of the litigant, despite the impairment already caused."

It has also been held by the Apex Court in case of Shantilal Thakordas and Others Vs. Chimanlal Maganlal Telwala, , that

"if the law permitted the eviction of the tenant for the requirement of the landlord for occupation of the landlord as a residence for himself and members of his family, then such requirement was both of landlord and the members of the family. On his death the right to sue did survive to the members of the family of the deceased landlord. We are unable to take the view that the requirement of occupation of the members of the family of original landlord was his requirement and ceased to be the requirement of the members of his family after his death."

In the light of aforestated legal position, let us examine whether the subsequent events which took place pending the suit or the appeal had any material bearing on the entitlement of the parties to get the relief or required any moulding of reliefs claimed. It appears from the record that the suit was filed as back as in the year 1989 and this second appeal is being considered in 2014 i.e. after about 25 years of its filing. During this long span of litigation, number of developments are bound to take place. As observed by the Apex Court in the abovementioned decision in case of Pratap Rai Tanwani (supra), if the cause of action is to be merged in such subsequent events on account of the malady of the system, it would shatter the confidence of the litigant despite the impairment already caused. In the instant case, the first appellate court after examining the consequence of the subsequent event namely death of Shri Shiv Shankar, for whose requirement, the trial court had passed the decree of eviction against the appellants, has come to the conclusion that the bonafide requirement of the wife of Shri Shiv Shankar still existed after his death and that the requirement pleaded in the plaint also extended to the dependent members of his family. The first appellate court has also examined the issue of other shops being available to the respondents-plaintiffs, and held that the partition of the properties belonging to the original plaintiff-Babulal had taken place, and the sons of Babulal, who are also the respondents herein were in possession of their respective shops, and that the disputed shop and one another shop had fallen into the share of Shri Shiv Shankar. It was also brought on record that out of the said two shops, one shop was very small having only 4 feet width, and situated in the interior lane, not suitable for business, whereas the other shop i.e. the suit shop was four time bigger and situated in the main market, very much suitable for the business. It is also very pertinent to note that the appellants themselves had admitted that the wife of the deceased tenant Shri Lalchand had purchased a property in front of the suit shop, and that the said property consisted of three shops, out of which in two shops the sons of the deceased tenant Lalchand, i.e. the present appellants were carrying on their business. The only explanation given by the present appellants in that regard is that the said shops belonged to their mother and therefore could not be said to be owned by them. When the appellants were carrying on their business also in the two shops situated in front of the suit shop, it does not lie in the mouth of the appellants to say that the said two shops were in the name of their mother i.e. the wife of the original tenant. Such an unreasonable plea cannot be accepted.

The first appellate court having considered all the factual and legal aspects involved in the appeal and the appellants having failed to point out any illegality or perversity in any of the findings recorded by the appellate court, this Court is not inclined to interfere with the impugned judgment and decree passed by the appellate court. There is also no question of law muchless substantial question of law involved in the instant appeal.

In that view of the matter, the present appeal being devoid of merits deserves to be dismissed, and is, accordingly dismissed.