Santosh Singh And Anr. vs Uma Devi Tomar And Anr

This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 28/09/2018, passed by III Additional District Judge to the Court of First Additional District Judge, Vidisha in Regular Civil Appeal No.01 of 2018, thereby dismissing the appeal filed by the appellants against the judgment and decree dated 29/11/2017, passed by First Civil Judge, Class-II, Vidisha in Civil Suit No.08A of 2014 by which the decree of eviction has been affirmed.

The necessary facts for the disposal of the present appeal in short are that the respondent No.1 filed a suit for eviction on the ground that the appellants are the tenants of the suit premises, whereas the respondent No.1 being the sole legal representative of Baldev Singh, is the owner of the property in dispute. The disputed building is about 80-85 years old and is in a dilapidated condition and notice has also been issued by the Municipal Council on 11/09/2000. A notice dated 23/05/2000 was issued to the appellants for vacating the premises and for payment of rent, however, neither the appellants paid the rent nor vacated the suit premises. The rent up-to 30/06/2013 is outstanding. The husband of the respondent No.1 has expired in the year 2011 and her sons Mahendra and Bhupendra are unemployed and the plaintiff/respondent No.1 is residing in a tenanted premises in Sihore. She does not have any alternative accommodation for her residential purposes. Accordingly, the plaintiff had issued a notice dated 30/05/2013, thereby terminating the tenancy and the appellants were directed to vacate the suit premises, however, the appellants have given a wrong reply and thus, the suit was filed for eviction as well as for recovery of rent.

The appellants filed their written statement. It was pleaded that the suit premises was repaired by the appellants out of their own pocket. The building is a good condition. No notice was ever issued to the Municipal Council. The respondent No.1 has also not filed any document of title and her ownership was also denied for want of knowledge.

On the basis of the pleadings, the Trial Court framed the following issues:-

''(1) Whether the appellants are the tenants of the suit premises @ Rs.100/- per month ?

(2) Whether the appellants have failed to pay the arrears of rent even after two months of service of notice ?

(3) Whether the appellants have not paid the arrears of rent within one month from the date of service of summons ?

(4) Whether the respondent No.1 is in bona fide need of building for residential purpose ?

(5) Whether the respondent No.1 does not have any alternative accommodation in Vidisha ?

(6) Whether the respondent No.1 is entitled to receive the arrears of rent ?

(7) Whether the suit premises is in a dilapidated condition and it cannot be repaired without getting it vacated ?

(8) Whether the suit premises cannot be used without reconstructing the same ?

(9) Whether the appellants have denied the title of the respondent No.1 ?

(10) Whether the respondent No.1 is entitled for mesne profit @ Rs. 100/- per month ?

(11) Relief and Cost ?

The Trial Court answered all the issues in favour of the respondent No.1 and it was held that the respondent No.1 is the owner of the property in dispute and the appellants are the tenants of the suit house @ Rs.100/- per month. It was further held that the appellants have not paid the arrears of rent within a period of two months from the date of service of notice as well as within one month from the date of service of summons from the Court. It was further held that the respondent No.1 is in bona fide need of the suit premises for residential purposes and she does not have any alternative accommodation in Vidisha. It was further held that the respondent No.1 is entitled for recovery of arrears of rent and the suit premises is required for bona fide residential purposes after reconstruction of the same. It is further submitted that the respondent No.1 is also entitled for decree of eviction on the ground of denial of title.

Being aggrieved by the judgment and decree passed by the Trial Court, the appellants filed an appeal, which too has suffered dismissal by judgment and decree dated 28/09/2018, passed by passed by III Additional District Judge to the Court of First Additional District Judge, Vidisha in Regular Civil Appeal No.01 of 2018.

Challenging the judgment and decree passed by the Courts below, it is submitted by the Counsel for the appellants that admittedly, the notice was issued to the appellants/ defendants on 23/05/2000 for terminating the tenancy and for payment of arrears of rent, but the suit was filed in the year 2013, therefore, under Articles 66 and 67 of the Indian Limitation Act, the suit was barred by time. It is further submitted that the Courts below have ignored the provision of reentry as provided under Section 18(3) of MP Accommodation Control Act.

Heard the learned counsel for the appellants.

So far as the question of limitation is concerned, the suit was not filed on the basis of the notice issued to the appellants/defendants on 23/05/2000, in fact, the suit has been filed on the basis of registered notice dated 29/30-05-2013. Thus, it cannot be said that the suit filed by the respondent No.1 is barred by limitation. Further, so far as the question of right to re-entry is concerned, it is the case of the respondent No.1 that the suit premises is in a dilapidated condition and she would reconstruct the same for making it suitable for her residential purposes. Under these circumstances, where the plaintiff has pleaded that the suit premises would be utilized by her after reconstructing the same, this Court is of the considered opinion that the question of reentry does not apply.

This Court in the case of Satish Kumar Jain. Vs. Smt. Durgabai and Others, reported in 2006 (3) JLJ 108 has held as under:-

''13. Landlord-respondents have right to file the suit for eviction on the ground of bona fide genuine requirement for residential and/or non-residential purpose along with the ground of rebuilding or repairing which cannot be carried out without vacating the premises in one suit as laid down by this Court in the matter Habib Hasan vs. Joseph Nathanial and 5 others reported in 2002(1) MPJR Short Note 29 in which it is held as under:-

''However, advocate for the appellant has claimed that the grounds under section 12(1)(c) and (h) are mutually restrictive. Both cannot exist together. Either the landlord can need the house for his residence or he can need the same for reconstruction. It is also claimed that the right of tenant under section 18 of the Act could be frustrating in case both these grounds for eviction are upheld. He has relied upon Smt. Pareswari Devi v. Thakur Nathu Singh [ (1998) 8 MPRCJ 462], the judgment of a Single Judge. However, this is not the preponderate view. The apex Court in Ramnikram Pitamber Das Mehta vs. Indrabha Bhuwan Amreitlal Seth [AIR 1964 SC 1676] and K. S. Nathbai Anthappai v. C. Ahmed [ AIR 1992 SC 1696] has held otherwise. In Radheshyam v. Kalyanmal [ 1985 JLJ 302 = 1985 MPLJ 112], this Court has taken the opposite view. Of course the landlord can need the house for living in the same after reconstruction. Both grounds are neither destructive of each other nor are materially exclusive. Need shown for starting business after reconstruction was basically considered a need under section 12(1)(f) of the Act. Kalender Khan v. Mani Saqrani [ 1979 (2) MPRCJ 1917], Nariuddin v. Hiramal [1979 MPRCJ NOC 141], Nathuram v. Udaychand [1976 MPWN 6]. In such a case, the tenant has no choice of re-entry under section 18 of the Act. Jamaluddin v. Purushottam [1997 MPRCJ 401], Union of India v. Chatarbhuj [ 1993 (1) MPWN 101], Radheshyam v. Durgabai [AIR 1985 SC 139]. In view of otherwhelming authorities of apex Court and this Court, the argument of the appellant does not hold good that the landlord cannot claim eviction on both the grounds under section 12(1)(e) and (h) of the Act.''

Thus, this Court is of the considered opinion that the Courts below did not commit any mistake by not extending the benefit of re-entry to the appellants as provided under Section 18 of the MP Accommodation Control Act.

So far as the findings of bona fide requirements are concerned, these are pure findings of facts and no perversity could be pointed out by the counsel for the appellants.

The Supreme Court in the case of Gurnam Singh (D) LRs & Ors. vs. Lehna Singh (D) By Lrs passed in Cr.A.6567/2014 on 13.3.2019 has held as under:-

''13.1. The suspicious circumstances which were considered by the learned Trial Court are narrated/stated hereinabove. On re-appreciation of evidence on record and after dealing with each alleged suspicious circumstances, which were dealt with by the learned Trial Court, the First Appellate Court by giving cogent reasons held the Will genuine and consequently did not agree with the findings recorded by the learned Trial Court. However, in Second Appeal under Section 100 of the CPC, the High Court, by impugned judgment and order has interfered with the Judgment and Decree passed by the First Appellate Court. While interfering with the judgment and order passed by the first Appellate Court, it appears that while upsetting the judgment and decree passed by the First Appellate Court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that High Court has not at all appreciated the fact that the High Court was deciding the Second Appeal under Section 100 of the CPC and not first appeal under Section 96 of the CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of 'a substantial question of law' is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:

(i) Contrary to the mandatory provisions of the applicable law;

OR

(ii) Contrary to the law as pronounced by the Apex Court;

OR

(iii) Based on inadmissible evidence or no evidence.

It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in second appeal.

When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain (Supra). In the aforesaid decision, this Court has specifically observed and held :

"Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise."

Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has erred in re-appreciating the evidence on record in the second appeal under Section 100 of the CPC. The High Court has materially erred in interfering with the findings recorded by the First Appellate Court, which were on re- appreciation of evidence, which was permissible by the First Appellate Court in exercise of powers under Section 96 of the CPC. Cogent reasons, on appreciation of the evidence, were given by the First Appellate Court. First Appellate Court dealt with, in detail, the so-called suspicious circumstance which weighed with the learned Trial Court and thereafter it came to the conclusion that the Will, which as such was a registered Will, was genuine and do not suffer from any suspicious circumstances. The findings recorded by the First Appellate Court are reproduced hereinabove. Therefore, while passing the impugned judgment and order, the High Court has exceeded in its jurisdiction while deciding the second appeal under Section 100 CPC.

15.1 As observed hereinabove and as held by this Court in a catena of decisions and even as per Section 100 CPC, the jurisdiction of the High Court to entertain the second appeal under Section 100 CPC is confined only to such appeals which involve a substantial question of law. On going through the substantial questions of law framed by the High Court, we are of the opinion that the question of law framed by the High Court while deciding the second appeal, cannot be said to be substantial questions of law at all. The substantial questions of law framed by the High Court are as under :

"(i) Whether the Appellate Court can reverse the findings recorded by the learned trial court without adverting to the specific finding of the trial Court?

(ii) Whether the judgment passed by the learned lower Appellate Court is perverse and outcome of misreading of evidence?"

The aforesaid cannot be said to be substantial questions of law at all. In the circumstances, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside. At this stage, decision of this Court in the case of Madamanchi Ramappa v. Muthaluru Bojappa, AIR 1963 SC 1633, is required to be referred to.

In the aforesaid decision, this Court has observed and held as under: "Whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by S.100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of S.100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid."

No further argument has been advanced by counsel for the appellants. This Court is of the considered opinion that no substantial question of arises in the present appeal as the concurrent findings of fact recorded by the Courts below cannot be said to be perverse. Even otherwise, the counsel for the appellants could not point out any perversity in the findings of fact recorded by the Courts below.

Accordingly, judgment and decree dated 28/09/2018 passed by III Additional District Judge to the Court of First Additional District Judge, Vidisha in Regular Civil Appeal No.01 of 2018 and the judgment and decree dated 29/11/2017 passed by First Civil Judge, Class-II, Vidisha in Civil Suit No.08A of 2014 are hereby affirmed.

This appeal fails and is hereby dismissed.