Nathalal Laxmanbhai Sagathia vs Udhyogbharti Khadi Gramodhyog Sanstha

Rajesh H. Shukla, J.—The present Second Appeal has been filed u/s 100 of the CPC by the Appellant-original defending challenging the judgment & Order dated 24.12.1997 passed by the Learned Joint Civil Judge (JD), Gondal in Regular Civil Suit No. 264 of 1989 and the judgment & Order dated 09.02.2010 passed by the learned 2nd Additional District Judge, Gondal in Regular Civil Appeal No. 12 of 1998, wherein following substantial question of law are raised:

Whether both the Courts below have erred in not holding that the relationship of the Appellant and the Respondent was of tenant and the landlord?

Whether both the Courts below have erred in holding that the relationship of the Appellant and the Respondent was of the Licensee and the Licensor?

Whether both the Courts below have erred in not appreciating the important aspect of the effect that no cause of action had arisen for filing suit for eviction?

Whether both the Courts below have erred in not appreciating important aspect that Hargovanbhai had no authority to file Suit in the year 1989 as he was given authority for a period of 2 years as per the Trust Deed?

Whether the Suit filed by the Respondent was not maintainable in view of the fact that the suit was filed without getting permission of Charity Commissioner as per the provisions of Bombay Public Trust Act?

The Appellant is the original Defendant, who filed Regular Civil Suit No. 264/1989 before the Court of the Learned Civil Judge (JD) at Gondal, which came to be decreed by judgment & Order dated 24.12.1997, by which, the original Defendant was directed to hand over the vacant and peaceful possession of the suit premises. The said order was challenged by way of Regular Civil Appeal No. 12/1998 before the District Court by the heirs of the Defendant (the present Appellant), which came to be dismissed by judgment & Order dated 09.02.2010 by the learned 2nd Additional District Judge, Gondal. Therefore, the present Second Appeal has filed raising the aforesaid substantial questions of law.

The Respondent-original Plaintiff is the registered Udhyogbharti Khadi Gramodhyog Sanstha, working for the upliftment of the rivers and the workers. While giving such work, it used to provide residential facility as a licensee, therefore, the Defendant was granted a room when such work was given to Defendant. However, it was contested by the Defendant that the Defendant is not licensee but a tenant. Therefore, the issues were framed and both the Courts below have decided in favour of the Respondent that the Defendant was the only licensee. As it transpires from the discussion made in the judgment of both the Courts below and while deciding Issue No. 3 on this aspect, the Trial Court has specifically made reference to Exhs.50, 51 & 55 that it was not even claimed by the Defendant when the notices were issued and the correspondence was made that the Defendant is a tenant.

Therefore, in view of the concurrent findings of fact and the substantial question of law, which are sought to be posed, cannot be said to be involving any substantial questions of law as it is only an appreciation of evidence. Therefore, when both the Courts below on appreciation of evidence has not accepted the say of the original Defendant (Appellant herein) about their having been tenant, no substantial questions of law can be said to have involved, which would call for the interference with the concurrent findings of facts by the Courts below.

It is well settled that scope of exercise of discretion u/s 100 of the CPC in Second Appeal is very limited and unless it has been shown that there is a substantial question of law, which can be said have involved, normally concurrent findings of fact could not be interfered with.

The Hon''ble Apex Court in a judgment reported in Gurdev Kaur and Others Vs. Kaki and Others, has clearly observed that:

Now, High Courts can interfere thereunder only where substantial questions of law are involved and have been formulated in the memorandum of appeal - The amendment clearly indicates that the legislature never intended the second appeal to become a third trial on facts.

The Apex Court has laid down the guidelines with regard to scope of discretion u/s 100 of the CPC and in Para No. 17 of the said judgment, what could be considered as a substantial question of law in light of the amendment in 1976 has also been discussed. Same view has been reiterated in a subsequent judgment reported in Narayanan Rajendran and Another Vs. Lekshmy Sarojini and Others, well as State Bank of India and Others Vs. S.N. Goyal, and, therefore, considering the aforesaid settled principle/guidelines of law, the present appeal deserves to be dismissed.

Accordingly, the present Second Appeal stands dismissed.

In view of the dismissal of Second Appeal, the Civil Application filed for stay does not survive and stands disposed of accordingly.

Learned Counsel, Mr. N.K. Majmudar for the Appellant, however, requests that some time may be granted to hand over the possession of the suit premises, to which, learned Counsel, Mr. Khandheria for the Respondent has no objection. Therefore, the Appellant shall hand over the vacant and peaceful possession of the suit premises to the Respondent within a period of four months.