Trilochan Singh and Another vs Radhey Shyam Agarwal

Kamal Kishore, J.

This is the second civil appeal against the judgment and decree dated 12.10.1992 passed by the then III Additional District Judge, Sitapur in Civil Appeal No.24 of 1990 dismissing the appeal and confirming the judgment and decree passed by the Munsif, Sitapur in Regular Suit No.705 of 1981 which was a suit for possession and damages.

The following questions of law have been formulated in this second appeal:

"1. Whether on the facts held by the appellate court in the first appeal the appellants are licensees?

Whether the courts below have erred in not framing any issue as to the right of tenancy as alleged in question No.5 of substantial questions of law given in the memo of appeal?"

I have heard the arguments and have gone through the records.

It has been argued by the learned counsel for the respondent that since there are concurrent findings of fact recorded by both courts below against the defendantsappellants, the same cannot be interfered with in second appeal. Rule of noninterference in concurrent findings of lower courts, held, is not an absolute rule of universal application. What must be examined, where second appellate court has interfered with such findings, is whether its conclusions are justifiable according to the parameters of consideration for interference under Section 100 CPC. Both lower courts dismissed suit of respondents for damages and for recovery of possession. High Court found that judgments of both courts were vitiated due to perversity of reasoning and due to surmises and misreading of materials on record, having ignored evidence on record as has been held in the recent ruling reported in (2001) 7 Supreme Court Cases, 189. It has been further held in the aforesaid ruling of Hon''ble Supreme Court that the rule of noninterference in concurrent findings by the High Court in second appeal is not an absolute rule of universal application. Therefore in cases of mechanical refusal by second appellate court to interfere matter may be relegated to such court to deal objectively with the claims of parties keeping in view the parameters of consideration for interference under Section 100 CPC. The argument of the learned counsel for the respondent, to the contrary, is not tenable.

On the other hand, it has been argued by the learned counsel for the appellants that the defendantsappellants have filed a good number of documents before the learned trial court. The same were not considered by the courts below which were vital evidence and the same could have led to a different conclusion and its omission by the courts below is illegal and perverse and the court below has further erred in relying on inadmissible evidence which if omitted would have led to a different conclusion. In support of this contention, learned counsel for the defendantsappellants has cited the ruling of Hon''ble Supreme Court as reported in (2000)1 Supreme Court Cases, 434, Ishwar Pass Jain v. Sohan Lal in which it has been clearly held by the Hon''ble Supreme Court that the findings become perverse when vital evidence which could have led to a different conclusion was omitted by the courts below or when inadmissible evidence was relied upon by the courts below. If the same were omitted, they would have led to a different conclusion and accordingly the Hon''ble Supreme Court has held that the High Court can very well interfere in the second appeal under such circumstances. The same view has been taken by the Hon''ble Supreme Court in the recent ruling as reported in (2001)7 Supreme Court Cases 189, Hafazat Hussain v. Abdul Majeed.

My attention has been drawn to the admission of the plaintiffrespondent Radhey Shyam in which he has admitted that the premises in suit were got vacated from the firm ''Jai Sukh Ram Bhairav Prasad 1820 years ago and he cannot say that as to how many years after getting the premises vacated by the aforesaid firm, the same was let out to the defendantappellant Trilochan Singh. This is an admission on the part of the plaintiffrespondent which shows that the case of the defendantsappellants regarding their being tenant of the'' premises in suit seems quite proper. An admission is the best evidence on which other party can rely and though not conclusive, is decisive of the matter, unless successfully withdrawn as has been held by the Hon''ble Supreme Court in the ruling reported in AIR 1960 SC 101 Narayan Bhagwantrao Goswami

Lastly, it has been argued by the learned counsel for the defendantsappellants that the courts below have erred in not framing any issue as to the right of tenancy as alleged in question No. 5 of the substantial questions of law. The substantial question of law No. 5 runs as under:

"Whether no specific issue having been framed as to the right of tenancy pleaded by the defendantsappellants the absence of which has sufficiently prejudiced a fair trial of the suit and resulted in miscarriage of justice, the lower appellate court in not remanding the case to the trial court or in not exercising jurisdiction under Order 41, Rule 25 CPC, the findings recorded by the lower appellate court, stand vitiated?"

A perusal of the judgments of both courts below shows that no issue was framed as to the right of tenancy pleaded by the defendants appellants and in absence of an issue regarding the right of tenancy pleaded by the defendantsappellants, the judgments of the courts below have caused prejudice to the case of the defendantsappellants and the trial was not fair. The substantial questions of law formulated above are being decided accordingly.

Under these circumstances, I have no option but to remand the case to the learned trial court for deciding it afresh along with newly framed issue.

Issue No.5:

Whether the relationship of Landlord and tenant existed between the parties as alleged by the defendantsappellants?

The second appeal is hereby allowed. The judgment and decree passed by the courts below are set aside. The case is remanded to the learned trial court for deciding the suit afresh in view of the observations made above. No order as to costs.

(Appeal allowed)