MANGAT RAM v. MUNICIPAL COMMITTEE, DALHOUSIE — 1999 DIGILAW 93 (HP)

JUDGMENT M. R. Verma, J.: This is Second Appeal preferred by the plaintiff/ appellant (here-in-after referred to as the plaintiff) against the judgment and decree dated 28.5.1998 passed by the learned District Judge, Charnba, in Civil Appeal No. 24/97 whereby the judgment of the learned trial Judge passed in Civil Suit No. 71/93 dated 18.4.1997 has been reversed to the extent that the relief of demolition of the Rest House by the respondent/defendant (here-in-after referred to as the defendant) as granted by the trial judge has been reversed. 2. Brief facts giving rise to the present appeal are that the plaintiff instituted a suit for declaration, permanent prohibitory injunction, mandatory injunction and possession in the court of the learned Sub Judge 1st Class, Dalhousie. Case of the plaintiff as made out in the plaint is that he is a lessee of the shop / house measuring 00-00-15 Heets, situated in Khasra No. 1622/1, Khata Khatauni No. 96 min 200/201 situated in Mohal Moti Tibba Tehsil Bhattyat, since 1976 on payment of rent to the defendant. The said shop/house as it stood originaly was destroyed in a fire on 21.5.93. Thereafter the defendant granted permission to the plaintiff to re-construct the said shop/house as it originally existed. Without any financial help from the defendant, the plaintiff re-constructed the said shop/house after spending money thereon which he raised by taking loan from the bank and disposal of the jewellary of his wife, building constructed by him as slab at the top whereas earlier the shop/house was roofed with tin-sheets. The defendant intended to construct a Rest House over the said shop for which the shop constructed by him was threatened to be demolish With a view to pressurise the plaintiff to concede the demand of the defendant to construct the said Rest House, when on 4.8.19993 the defendant tried to demolish the shop/house in question the plaintiff telegraphically requested the defendant not to raise any construction over his shop on the ground that the defendant had no legal right either to demolish the shop or to raise any sort of construction thereon. It appears that the telegram issued by the plaintiff to the defendant did not yield the desired result, hence the suit was filed claiming the following reliefs: a) Declaration to the effect that the plaintiff is the lessee of the suit property and defendant is the lessor of the said property; b) a decree for permanent prohibitory injunction restraining the defendant from demolishing the shop/house in quest in and to restrain them from raising any sort of construction whatsoever over the slab of the shop; c) a decree for mandatory injunction for demolition of any structure which may have been raised by the defendants above the shop of the plaintiff subsequent to the filing of the suit; d) a decree for possession of the shop/house including the slab; and e) any other relief as may be deemed just and reasonable by the Court. 3. The defendant contested the claim. In its written statement it took the preliminary objections that the court has no jurisdiction to entertain the suit in view of the H.P. Municipal Oridnance, 1994, that the plaintiff was not entitled for the relief claimed in view of his act and conduct i.e. giving of a letter dated 8.8.1993 to the defendant and making of an application to the Court of the Sub Judge, Chamba averring that he has no grievance with the Municipal Committee, Dalhousie and as such was not interested in carrying out the litigation, and that the plaintiff is only a lessee having no right to ask the defendant riot to raise Rest House above the slab of the shop in question and that the suit is not maintainable for want of Notice. On merits while admitting that the earlier shop leased to the plaintiff was gutted in fire and he was permitted to re-construct the shop at his own cost subject to the condition that the shop so constructed shall remain the property of the defendant, the allegations of attempt demolish the shop have been denied and it has been averred that the defendant has not demolished the said shop but on the basis of a writing dated 8.8.1993 given by the plaintiff undertaking therein not to raise any objection regarding the construction of the Municipal Rest House over the slab of the shop in question a Rest House has been constructed. It is further claimed that being the real owner of the suit property the plaintiff has no right to restrain the defendant from raising any construction over the slab of the shop and that the Rest House already stood constructed since long before the filing of the Suit. 4. Plaintiff filed replication wherein the grounds of defence taken in the written statement were denied and the claim as made out in the plaint was re-affirmed. 5. On the pleadings of the parties the learned trial Judge framed the following issues:-. "1. Whether the defendants on 2.8.1993 tried to demolish the shop/house of the plaintiff as alleged ? OPP. 2. Whether the defendants have no right to raise construction n the disputed shop/house as alleged? OPP. 3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed? OPP. 4. Whether this Court has no jurisdiction to try this suit as alleged ? OPD. 5. Whether the plaintiff has no locus-standi ? OPD. 6. Whether this suit is not maintable as alleged ? OPD. 7(A) Whether the plaintiff is entitled to the mandatory injunction by demolition of the construction raised on the top of the slab of shop as alleged ? OPP. 7. Relief." 6. The trial Court vide its judgment dated 18.4.97 held issues No. 1 to 3 and 7-A in the affirmative i.e. in favour of the plaintiff whereas the other issues were held in the negative i.e. against the defendat, and accordingly decreed the suit of the plaintiff with special costs of Rs.2000/-. 7. Feeling aggrieved the defendant preferred an appeal before the learned District Judge, Chamba, who vide the impugned judgment dismissed the apeal except in regard to the relief for mandatory injunction regarding demolition of the Rest House for which relief the plaintiff was held not entitled and accordingly modified the decree of the learned Sub Judge. It is regarding modification in the judgment and decree of the Sub Judge that the present appeal has been preferred. 8. I have heard the learned counsel for the parties. 9. A priliminary contention has been raised by the learned counsel for the defendant that the appeal is liable to be dismissed on the short ground that it does not raise any substantial question of law for decision by this court as contemplated by Section 100 of the Code of Civil Procedure. 10. 9. A priliminary contention has been raised by the learned counsel for the defendant that the appeal is liable to be dismissed on the short ground that it does not raise any substantial question of law for decision by this court as contemplated by Section 100 of the Code of Civil Procedure. 10. To appreciate the contention raised, it is expedient to examine the provisions of Section 100 of the Code of Civil Procedure, which reads as follows:- "100. Second appeal -(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shal lie to the High Court from every decree passed in appeal by any Court suboridnate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question; Provided that nothing in this sub-section shal be deemed to take away or abridge the power of the Court to hear, for reasons to be recroded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that tine case involves such questions." 11. A plain reading of the section, particularly sub section (1) of Section ] 00 quoted above makes it clear that second appeal will be competent and maintainable before the High Court only if the case involves a substantial question of law. A plain reading of the section, particularly sub section (1) of Section ] 00 quoted above makes it clear that second appeal will be competent and maintainable before the High Court only if the case involves a substantial question of law. To ensure that a second appeal is entertained only if such question is involved therein, it futher lays down the following conditions:- (a) that the High Court must be satisfied (apparently at the stage of admission) that the case involves a substantial question of law; (b) that such question is precisely stated in the memorandum of appeal; (c) that when the High Court is satisfied that a substantial question of law is involved in the case it shall formulate it; (d) that even where the High Court is so satisfied and has formulated the substantial question of law, the respondent will still have the right to challenge that a substantial question of law is not involved in the case; and (e) that the appeal will be heard only on the substantial question of law which led to its admission for hearing with the sole exception that for reasons to be recorded the High Court may, if satisfied that substantial question of law is involved in the case, which has not been formulated, hear the appeal on such question. 12. In view of the; above position in law, two aspects involved in the contention raised for the defendant are clear, that is, firstly a second appeal will be competent only if a substantial question of law is involved in the case and secondly the respondent has a right of challenging that no substantial question of law is involved in the case, therefore, the appeal is not competent and maintainable. 13. The appeal though has been admitted for hearing yet in view of the contention of the learned counsel for the defendant it has to be examined whether no substantial question of law is involved in the case. 14. The appeal appears to have been admitted for hearing on the following questions: "1. Whether Ld. First Appellate Court below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them in its true and correct perspective, thereby vitiating the impugned judgment and decree? 2. Whether Ld. First Appellate Court below mis-read and mis-construed the document Ex. P-l thereby vitiating the impugned judgment and decree? 3. Whether Ld. First Appellate Court below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them in its true and correct perspective, thereby vitiating the impugned judgment and decree? 2. Whether Ld. First Appellate Court below mis-read and mis-construed the document Ex. P-l thereby vitiating the impugned judgment and decree? 3. Whether Ld. First Appellate Court below further erred in appreciating the facts and law in the case in hand, thereby vitiating the impuned judgment and decree?" 15. Before deciding the question as to whether the questions here-in-above or any one or more of them are really the substantial questions of law, be it stated that their Lordships of the Honble Supreme Court while dealing with the question as to what is and what is not a substantial questions of law, in case Sir Chunila V. Mehta and Sons versus Century Spinning and Manufacturing Co. Ltd.. (A.I.R. 1962 S.C. 1314) held that: "6......The proper test for determining whether a destion of law raised in the case is substantial would in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a subsantial question of law." 16. The learned counsel for the appellant/plaintiff has contended that the substantial question of law (No.2 supra) is involved in this case inasmuch as the lower appellate Court has misconstrued the consent letter Ex.P-1 which has materially effected the rights of the appellant which vested in him by virtue of the lease and which entitled him to the relief of mandatory injunction as prayed for. Since the respective rights of the parties in the property in dispute has to be gathered from Ex. P-l and the terms and conditions of lease therefore, the alleged mis-constructin of Ex. Since the respective rights of the parties in the property in dispute has to be gathered from Ex. P-l and the terms and conditions of lease therefore, the alleged mis-constructin of Ex. P-1 leading to allegedly affecting the rights of the appellant, is the only substantial question of law involved in the case which requires determination. 17. To appreciate the contention of the learned counsel for the plaintiff, the admitted facts of the case may be set out. A shop earlier existed on the site whereon the present shop has been constructed, the earlier shop was owned by the respondent and it was held by the appellant on lease. It was gutted in fire and on request of the appellant, respondent permitted him to construct a new shop on the same plinth and area vide documents Ex. P-l subject to the conditions that the new constructions made pursuant to the consent accorded shall remain the property of the respondent and conditions of the lease shall Continue to be the same as in respect of the burnt shop. According to the respondent consent vide Ex.P/1 was given to the appellant on the basis of his affidavit Ex. DW1/B, substance whereof is that he would construct a shop on the same plinth as the burnt shop, which will be the property of the respondent, that he will not claim any compensation and shall remain a lessee of the committee on the same terms and conditions. When the contents of this affidavit Ex.DW1 /B were suggested to the plaintiff (PW-1) in his cross- examination, initially he denied them but then admitted that he has given such affidavit. Thus, the irresistable conclusions are that; (i) the appellant with the consent of the respondent constructed the new shop, (ii) the shop so constructed is the property of the respondent; and (iii) the appellant is a tenant of the shop so constructed on the same terms and conditions on which he held the earlier premises which were gutted in the fire. 18. It was futher contended that the right of the appellant not to permit any additions / alternations to the shop in question were to be governed by the terms and conditions of the lease as in the lease in respect of the gutted shop. 18. It was futher contended that the right of the appellant not to permit any additions / alternations to the shop in question were to be governed by the terms and conditions of the lease as in the lease in respect of the gutted shop. There is nothing on the record to show that the terms and conditions of the lease between the parties: in any manner curtailed or took away the rights of the owner-respondent to make additions/ alterations to its property. The fact remains that the lease deed witnessing the terms and conditions of the tenancy in question has not been produced in evidence. 19. The learned counsel for the appellant has contended that the original lease deed is in possession of the respondent who has withheld the production thereof, therefore, an adverse inference may be drawn against the respondent. 20. Once a person is proved to be the owner of the buidling, ordinarily he will have a right to make additions and alternations therein subject to any bar or any limitations provided by law or contract. This is not the case of the appellant that the construction raised by the respondent by addition to its existing building is in violations of any law. It is attempted to make out that such right does not exist in view of a contract i.e. terms and conditions of the lease deed. It is the case of the appellant that the true owner of the building in question has no right to make additions thereto, therefore, it is for the appellant to prove it. If there was any such condition in the lease deed, it was for the appellant to summon and prove the lease deed. Thus, there is no merit and substance in the contention raised for the appellant. 21. Be it stated here that even in the plaint it has not been specifically pleaded as to why the respondent has no right to make additions by raising a Rest House over the suit property. 22. It cannot be, therefore, held that the lower Appellate Court misconstrued the document Court on this count cannot be said to be un-warranted and calls for no intereference by this Court. 23. As a result the appeal fails and accordingly is dismissed. No order as to costs.