Prabhudas Gokaldas vs Dahiben Arjandas

M.D. Shah, J.—This Second Appeal u/s 100 of the CPC has been preferred by the appellants herein - original defendant challenging judgment and order dated 06.08.1981 passed by the learned Assistant Judge, Jamnagar in Regular Civil Appeal No. 142 of 1981 by which the learned Judge confirmed judgment and order dated 12.08.1981 passed in Regular Civil Suit No. 12 of 1980 whereby learned Trial Court allowed the suit preferred by the present defendant - original plaintiff.

Respondent herein - original plaintiff instituted Regular Civil Suit No. 12 of 1980 in the Court of learned Civil Judge (JD), Dwarka for eviction of Suit premises under the provisions of Transfer of Property Act. The appellant - original defendant is a tenant in the suit premises and paying monthly rent of Rs. 45. The suit has been instituted by the landlady through her son and power of attorney for eviction alleging that she did not wish to keep the defendant as a tenant in the suit premises. According to the plaintiff the tenancy of the defendant has been terminated by registered notice dated 05.12.1997. The appellant herein - original defendant resisted by filing written statement at Exh.21 and denied the correctness of the case made by the plaintiff. The original defendant denied that landlady was the sole owner of the suit property.

Learned Trial Court framed the issues at Exh.22. On appreciation of evidence led by both the parties and on considering submissions made by respective parties, the learned Trial Court came to the conclusion that the power of attorney holder was entitled to file the suit on behalf of the landlady. Being aggrieved and dissatisfied with judgment and order dated dated 12.08.1981 passed by the learned Civil Judge (J.D.), Dwarka in Regular Civil Suit No. 12 of 1980, the appellants herein preferred appeal being Regular Civil Appeal No. 142 of 1981 before the learned Appellate Court. Learned Learned Appellate Court vide judgment and order dated 06.08.1981 dismissed the appeal. Hence, present appellants - original defendants have preferred present Second Appeal.

Learned Advocate for the appellant herein - original defendant submitted that learned Courts below have erred in not appreciating the fact that suit could not be filed by power of attorney for eviction against the appellant. It was further submitted that Courts below have failed to appreciate that suit premises were subject to the provisions of Bombay Rent Act as the population of the Village Surajkaradi was more than 5000. It is also further submitted that Courts below have failed to appreciate that rent act was applicable to the Village Surajkaradi on the date of filing of the Suit as population of the village Suarjkaradi was more than 5000 according to census of 1981. Therefore, relevant date to be considered will be date of filing of Suit and not the date of decree. Making above submissions, it is requested to allow the present Appeal.

Heard learned Advocate for the appellant.

Law point to be considered by this Court is whether the Rent Act was applicable to Surajkaradi village on the date of filing of the suit and appeal as population was exceeding 5000 as per census of 1981. This Court has gone the judgment and order passed by both the Courts below. Both the Courts below have held that appellant herein has failed to prove that relevant date for considering applicability of Rent Act would be date of filing of Suit and not the date of decree. Both the Courts below have elaborately discussed the aforesaid aspect and come to the conclusion that on the date of decree census which is prevailing is required to be considered and therefore, Rent Act is applicable. It is also held by both the Courts below that there is no evidence on record to show that the population of village Surajkaradi was more than 5000 at the time of institution of the Suit. There are concurrent findings given by both the Courts below on appreciation of evidence documentary as well as oral, which are not required to be interfered with by this Court in exercise of powers u/s 100 of the Code of Civil Procedure. Learned Advocate for the appellant herein has failed to establish that both the Courts below have committed any error.

This Appeal is u/s 100 of the CPC and unless any substantial question of law arise to be considered by this Court, present Second Appeal is not required to be entertained and admitted.

At this stage decision of the Hon''ble Supreme Court in the case of Rur Singh (D) th. LRS. and Others Vs. Bachan Kaur, is required to be referred to. In para 13 of the said judgment the Hon''ble Supreme Court has observed as under:

The High Court while exercising its jurisdiction u/s 100 of the CPC exercise a limited jurisdiction. It may interfere with a finding of fact arrived at by the trial Court and/or of the first appellate court only in the event, a substantial question of law arises for its consideration.

As stated above, learned Advocate for the appellants has failed to show any substantial question of law having arisen in the present Second Appeal.

In view of above, there is no substance in the present Second Appeal, which deserves to be dismissed and accordingly it is dismissed. Interim relief, if any, stands vacated forthwith.