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1994 DIGILAW 672 (MP)

Mahendra Kumar v. Mool Chand

1994-09-07

TEJ SHANKAR

body1994
JUDGMENT So far as the question of rejection of the two applications by the learned Court below is concerned, it may be mentioned that one of the application was under Order 26 Rule 9 CPC. The learned appellate Court in the impugned judgment had mentioned in para 12 about these two applications. As far as the application under Order 26 Rule 9 CPC is concerned, it has been observed that it was not necessary, because there was sufficient evidence on record and it has been established unequivocally that the appellant-defendant had installed a Press in the disputed accommodation. As such, the issue of commission will not be of any help for the decision of the case. I do not find that the learned appellate Court was wrong in its approach while rejecting this application. I, therefore, find that the application was rightly rejected. As regards the application under Order 41 Rule 27 CPC, for permission to file a copy of sale-deed is concerned, it may be mentioned that it should have been allowed by the learned appellate Court because it contains certain averments which were necessary for the proper decision of the case, as is evident from the observations of the first appellate Court itself, inasmuch as it too has taken help from the averments made in this sale-deed. Consequently, I find that the copy of the sale-deed ought to have been brought on record and the prayer in that regard was wrongly rejected. Now, I come to the merits of the case. As said earlier, the finding of fact recorded by the Courts below on the question of bona fide need and the nature of tenancy are final and they can be interfered with in this Court, only when it is brought on record that the findings are based on no evidence or on misreading of evidence. Now, it has been argued that the findings are perverse, but mere perversity in itself is not sufficient to enable this Court to interfere in the findings of fact record by the Court below. The only misreading or illegally pointed out by the learned counsel for the appellant is that the learned appellate Court has taken into consideration the sale-deed, which was rejected by it and was not allowed to be brought on record. The only misreading or illegally pointed out by the learned counsel for the appellant is that the learned appellate Court has taken into consideration the sale-deed, which was rejected by it and was not allowed to be brought on record. To my mind, this is not such a lapse on the part of the appellate Court, which may go to the root of the matter. Apart from it, I have already allowed the application above. Thus, the, document, i.e. the copy of the sale-deed could be seen. While discussing the evidence adduced by the parties, the learned Courts below critically examined the evidence and gave a definite finding of fact against the defendant-appellant. This Court cannot re-appraise that evidence. Though, at the time of admission of appeal only one substantial question of law was formulated, as mentioned above, yet the appellant has moved an application under section 100 (5) CPC for framing of additional substantial questions of law. Four Additional substantial questions of law have been prayed. The first two additional substantial question of law prayed in the application to be formulated related to the applications under Order 11 Rule 27 and under Order 26 Rule 9 CPC. Both these points have been considered above. The third point prayed has not been prescribed during the course of arguments. The learned counsel, however, pressed the fourth point suggested in this application, regarding to the plea with respect to alternative accommodation. The point suggested is whether the existence of the upper storey of the disputed house was not considered by the lower appellate Court while considering the requirement of the plaintiff. So far as this point is concerned, I may mention that it is incorrect to contend that the learned appellate Court did not consider this aspect. A perusal of para 15 of the judgment of the appellate Court clearly shows that it has specifically mentioned that the finding of the bona fide need was challenged before the appellate Court on the ground that the upper storey in possession of Gulabchand had fallen vacant, and hence there was no bona fide need. This point was elaborated by the learned appellate Court in para 16 of the judgment. Thus, it is not correct that the lower appellate Court has not considered this aspect. This point was elaborated by the learned appellate Court in para 16 of the judgment. Thus, it is not correct that the lower appellate Court has not considered this aspect. There is a clear finding of both the Courts below that the accommodation was not vacant for residential purpose and this finding is based upon admissible evidence on record. Nothing has been shown during the course of argument that it was based upon inadmissible evidence or upon illegal considerations. Both the Courts below examined the statements of the witnesses and the documentary evidence on record and have come to the conclusion that the accommodation was given for residential purposes. I find no justifiable reason to interfere in this finding, which is final. Similarly, the finding in respect of bona fide need too is a finding of fact and all points raised were considered by both the Courts below and there is nothing to justify interference in that finding too. I, therefore, confirm both the findings arrived at by the Courts below. Lastly, it has been argued that the accommodation could not be got vacated for the composite need and in this connection certain authorities have been cited. First of all I may mention that no such case was taken in the written-statement nor any substantial question of law was formulated on this point. This point was not even raised in the application under section 100 (5) CPC which was moved lateron, and as such it is not open for the appellant to argue on this point. Appeal dismissed.