Smt. Rajni Jodhwani & Ors. vs Suraj Prasad

This second appeal has been preferred under Section 100 of Civil

Procedure Code by the appellants/defendants against the judgement and

decree dated 19.12.2016 passed in civil appeal no. 2700098/2016 by

the Court of Ist Additional District Judge, Katni arising out of Civil

Suit No. 3-A/2014 decided on 26.07.2016 by the Court of IInd Civil

Judge,Class II, Katni.

It is not in dispute that the ancestor of appellant late Kamal was

the tenant of the respondent in suit premises for non-residential

purpose. After his death the appellants became tenants of the suit

premises.

The respondent/plaintiff filed a suit against appellants under

Section 12(1)(a) and 12(1)(f) of the MP Accommodation Control Act.

The Trial Court decreed the suit, for eviction under Section 12(1)(f) of

the Act and dismissed the suit under Section 12(1)(a) of the MP

Accommodation Control Act. The appellant Court also confirmed the

judgement of Trial Court.

In this case, there is clear and cogent evidence on the side of the

respondent/plaintiff that his bonafide need for disputed premises to

carry business. He has no alternative accommodation for starting his

business. He is the best judge to choose which accommodation is more

appropriate or comfortable to his need. Attempt by the

appellant/defendants to establish otherwise has been found to be totally

unacceptable to the learned Trial Court as well as by the first Appellate

Court. The burden has been successfully discharged by the

respondent/plaintiff by examination of PW-1/Suraj Prasad and PW-2 /

Jwala Prasad.

This Court is not in a position to reverse the finding of facts

recorded by the first appellate Court on the issue of non-existence of

bonafide need of the respondent/plaintiff for the suit premises. In case

of Guruvachan Kaur Vs. Salikram [(2010) 15 SCC 530] , the Hon''ble

Apex Court has held as under -

"It is settled law that in exercise of power under Section 100 of the Code of Civil Proceudre, the High Court in second appeal cannot interfere with finding of fact recorded by first Appellate Court which is final court of fact, unless the same is found to be perverse."

This Court finds no substantial question involved in this appeal.

However, application of principles settled by High Court or general

principles would not amount to substantial question of law. Unless

finding recorded by trial Court by ignoring evidence on record or

erroneous and perverse as held in the case of Venkatesh Construction

Company Vs. Karnataka Vidyut Kakhar [AIR 2016 SC 553] and

Syeda Rahimunnisa Vs. Malan Bi & Anr. [(2016) 10 SCC 315] which

reads as under-

"to constitute substantial question of law there must be pleading regarding question of law involved in the matter and such legal question should emerge from sustainable findings of fact recorded by courts of fact recorded by courts below. Substantial question of law means question of law having substance, essential, real, of sound worth or considerable. Fairly arguable question of law, where there is room for difference of opinion on it or where court thought is necessary to deal with that question at some length and discuss alternative views then such question would be substantial question of law."

In case of Damodar Lal Vs. Sohan Devi & Ors [(2016) 3 SCC

78), Hon''ble Apex Court has held that the High Court in second appeal

was not justified in upsetting the finding which is a pure question of

fact. The strained effort made by the High Court in second appeal to arrive at

a different finding is wholly unwarranted apart from being impermissible under

law.

In the aforesaid cases, the Hon''ble Apex Court relying on the

principle laid down in case of Kulwant Kaur Vs. Gurdial Singh

Mann [(2001) 4 SCC 262 ] has held as under -

"34.Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second

appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-?-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below: "103. Power of High Court to determine issues of fact - In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-- (a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100 ." The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law."

In the light of the above principles laid down by the Hon''ble

Supreme Court, it is not proper and legally justified to interfere with

the concurrent findings of fact arrived at by learned Trial Court and the

First Appellate Court on a pure question of fact.

Keeping in view the concurrent findings recorded by the Courts

below, which are based on proper appreciation and assessment of

evidence on record, I do not find any substantial question of law arising

for adjudication in the present appeal.

The appeal is accordingly dismissed.