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2000 DIGILAW 600 (RAJ)

Kapoor Chand v. Bhanwarlal

2000-05-09

SUNIL KUMAR GARG

body2000
JUDGMENT : 1. This is a second appeal filed by the appellant-plaintiff against the judgment and decree dated 1.6.1984 passed by the learned District Judge, Jodhpur, by which he dismissed the suit of the plaintiff-appellant and allowed the appeal filed by the defendant-respondent against the judgment and decree dated 18.3.1981 passed by the learned Munsif, Jodhpur, whereby the suit of the plaintiff-appellant for eviction of the defendant-respondent on the ground of reasonable and personal necessity as envisaged under Section 13(1)(h) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act of 1950), was decreed. 2. This second appeal arises in the following circumstances:- "The plaintiff-appellant filed a suit in the Court of Munsiff, Jodhpur on 4.7.1978 for eviction of the defendant-respondent from the suit premises stating that there is a house of the plaintiff-appellant situated at 10th B. Pal Road, Sardarpura, Jodhpur and in that house, there is a garage and the said garage is in the possession of the defendant-respondent as a tenant at the monthly rent of Rs. 35/-. Apart from this garage, the defendant- respondent has also taken two shops and one underground (sic) on rent from the plaintiff-appellant, but this suit is only confined for eviction of the defendant-respondent from garage only. The case of the plaintiff-appellant is that this garage is required by him reasonably and bonafidely as in June, 1977 he has purchased Ambassador car and for keeping that car, he had no other accommodation and, therefore, this garage is required by him reasonably and bonafidely and he has filed this suit against defendant-respondent for his eviction from the garage.The suit of the plaintiff-appellant was contested by the defendant-respondent by filing a written statement in the lower Court on 12.4.1979 admitting that he has taken the garage on rent, but he has stated that he deals in the business of glasses and hardware and this garage is being used for keeping the goods such as glasses, articles of hardware etc. He has denied that the plaintiff-appellant is in need of this garage and, therefore, the suit be dismissed.On the pleadings of the parties, the learned lower Court framed the following issues on 28.8.1979:- (Vernacular matter omitted.) Thereafter, both the parties led evidence. He has denied that the plaintiff-appellant is in need of this garage and, therefore, the suit be dismissed.On the pleadings of the parties, the learned lower Court framed the following issues on 28.8.1979:- (Vernacular matter omitted.) Thereafter, both the parties led evidence. The learned Munsif by his judgment dated 16th March, 1981 decided issues No. 1 and 2 both in favour of the plaintiff-appellant holding that the garage in question is required by the plaintiff-appellant reasonably and bonafidely and he has no other accommodation and, thus, decreed the suit of the plaintiff-appellant for eviction of the defendant-respondent from the garage. Aggrieved from the judgment and decree dated 18.3.1981 passed by the learned Munsiff, the defendant-respondent preferred a first appeal in the Court of the District Judge, Jodhpur. During the pendency of the first appeal, the defendant-respondent moved an application under Order 41, Rule 2 read with Order 6, Rule 17 and Sections 107 and 151, CPC on 8.9.1982 stating that the garage in question cannot be got vacated within five years from the date on which it was taken on rent and, therefore, the present suit of the plaintiff-appellant is hit by the provisions of Section 14(3) of the Act of 1950 and this ground no doubt should have been taken by him in the memorandum of first appeal, but it has been left due to oversight and the same is now being taken and, he may be permitted to amend his appeal by adding the following paragraph after para 15 of the memorandum of appeal:- (Vernacular matter omitted.) The plaintiff-appellant filed a reply to this application in the first appellate Court on 15.9.1982 stating that this preliminary objection cannot be taken now as to the same has not been taken by the defendant- respondent in his written statement in the lower Court as well as in the memorandum of first appeal in the first appellate Court. Furthermore, this point cannot be raised as the garage in question was taken by the defendant- respondent from the brother of the plaintiff-appellant when he was the owner of this garage. Therefore, he has been the tenant of this garage for more than five years and this application should be rejected. Furthermore, this point cannot be raised as the garage in question was taken by the defendant- respondent from the brother of the plaintiff-appellant when he was the owner of this garage. Therefore, he has been the tenant of this garage for more than five years and this application should be rejected. The learned District Judge decided the said application of the defendant- respondent in the main judgment which was delivered on 1.6.1984 and it was held that since the plaintiff-appellant as PW.1 has admitted in his cross- objection on 10.10.1979 that the disputed garage was given on rent near- about four years back, therefore, suit was filed by the plaintiff-appellant before the expiry of five years from the date the suit premises were given on rent to the defendant-respondent. Hence, the suit was barred by the provisions of Section 14(3) of the Act of 1950 and on this ground alone, the learned District Judge allowed the appeal of the defendant-respondent and dismissed the suit of the plaintiff-appellant as barred by the provisions of Section 14(3) of the Act of 1950. Note:- One thing has to be mentioned here that so far as the findings on issues No. 1 and 2 are concerned, the learned District Judge in his judgment dated 1.6.1984 has upheld the findings recorded by the learned Munsiff holding that the garage in question is required by the plaintiff- appellant reasonably and bonafidely and there is no alternative accommodation for the plaintiff-appellant and thus, he decided issues No. 1 and 2 in favour of the plaintiff- appellant, but creating (treating ?) the suit barred by the provisions of Section 14(3) of the Act, 1950, he allowed the appeal of the defendant- respondent and dismissed the suit of the plaintiff-appellant. 3. Against the judgment and decree dated 1.6.1984 passed by the learned District Judge, the plaintiff-appellant has preferred this second appeal in this Court. 4. This Court while admitting this second appeal framed the following substantial question of law on 22.10.1984:- "Whether the learned District Judge should not have allowed the defendant- tenant to raise the plea as per provisions of Section 14(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, without there being any averment in the written statement, issue or evidence or ground taken in the Memo of Appeal ?" 5. The learned Counsel for the plaintiff-appellant has raised preliminary point that this plea should not have been allowed by the learned District Judge as the same is not found in the written statement and the same is also not found in the memorandum of first appeal. He has further argued that even for the sake of argument, if this plea has to be allowed, then, this plea cannot be decided without recording evidence and thus, the learned District Judge has further committed illegality in deciding this plea without recording the evidence of both the parties. 6. On the other hand, the learned Counsel for the respondent-defendant has stated that since it is a pure question of law, that can be taken at any time. Hence, the findings of the learned District Judge should be upheld. 7. I have heard the learned Counsel for both the parties. 8. There is no dispute on the point that such plea was never taken by the defendant-respondent in the written statement and memorandum of first appeal and for the first time it has been taken in the first appellate Court through an application. 9. So far as the position of law with respect to variance between pleadings and proof is concerned, it has been decided in so many cases by the Hon'ble Supreme Court of India and it has been held that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issues, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But, where the point of law is involved which goes to the very root of the case, that can be allowed to be raised to first appellate Court in exceptional cases depending upon the facts and circumstances of each case. 10. For convenience, Section 14(3) of the Act of 1950 is represented (reproduced ?) here:- "14. Representation on eviction:- (1) to (2) ..................................... (3) Notwithstanding anything contained in any law or contract, no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set forth in clause (h) of sub-section (1) of Section 13 before the expiry of five years from the date the premises were let out to the tenant." 11. (3) Notwithstanding anything contained in any law or contract, no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set forth in clause (h) of sub-section (1) of Section 13 before the expiry of five years from the date the premises were let out to the tenant." 11. Examining the present case in the light of the observations made above, it can be said that the plea that the suit of the plaintiff-appellant is barred by the provisions of Section 14(3) of the Act of 1950 is a pure question of law and if my humble opinion, such a plea can be raised at any stage, though the same has not been mentioned in the pleadings or in the memorandum of first appeal. Therefore, in the present case, if it has been raised by the defendant-respondent in the first appellate Court and the same has been entertained by the first appellate Court, the first appellate Court has not committed any illegality or irregularity in entertaining that plea. 12. In Sardar Singh v. Prakash Singh, 1987 (2) RLR 890 , this Court has held that objection or plea based on Section 14(3) of the Act of 1950 can be allowed to be raised in second appeal. Therefore, what to talk of first appeal, this Court has given verdict that this plea can be raised in the second appeal also. From this point of view, if such a plea is taken before the first appellate court, the first appellate Court in entertaining that plea has not committed any illegality or irregularity. 13. The next question that arises for consideration is whether such plea in the present case is simply a plea based on pure question of law or it is a mixed question of law and facts. 14. So far as this aspect is concerned that the suit is barred by the provisions of Section 14(3) of the Act of 1950, it is purely a question of law, but where evidence is required to prove the above plea, then it cannot be said that it is a pure question of law and thus, it becomes a mixed question of law and facts. 15. 15. In the present case also, the learned District Judge has taken the help of the statement of the plaintiff-appellant, where he has stated that the garage in question was given on rent near-about four years back, but when this statement was given by the plaintiff-appellant, such type of plea was never in the mind of the plaintiff-appellant. Therefore, in my opinion, simply deciding this plea on the evidence which was recorded before this plea was taken, is not the correct method. Hence, it can be easily said that the plaintiff-appellant had no opportunity to lead his evidence on this point and also to rebut his so-called statement which has been made foundation for deciding the plea by the learned District Judge. 16. Therefore, since it is a plea of mixed question of law and facts, it should have been decided by the learned District Judge by giving opportunity to both the parties, especially to the plaintiff-appellant as it was decided against him and in absence of that, the findings of the learned District Judge on this plea cannot be upheld. 17. So far as the issues No. 1 and 2 are concerned, both the issues were decided in favour of the plaintiff-appellant and against the defendant- respondent holding that the garage in question is required by the plaintiff-appellant bonafidely and reasonably. Since there is concurrent findings of fact recorded by both the Court below on issues No. 1 and 2 and as they have not been challenged in this second appeal, the findings recorded by both the Courts below on these issues No. 1 and 2 are not disturbed. 18. The next question that arises as to what steps should be taken by this court now. 19. There is no doubt that the High Court is certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration or in the absence of requisite evidence which could have been produced by the parties. 20. 20. Thus, the High Court has two options (1) either to remand the matter to the first appellate Court for a re-hearing of the matter in question and seek decision of that Court in accordance with law, or (2) to decide the case finally in accordance with the provisions of Section 103(b), CPC. 21. It is made clear that in second appeal, it is the decision of the lower Appellate Court that is to be referred to in the grounds of second appeal and not that of the original Court. 22. In my opinion, by taking recourse of Order 41, Rule 23A, CPC, this Court should make a remand of the matter to the first appellate Court after framing the following issue for determination:- "Whether the suit of the plaintiff-appellant is not maintainable as per the provisions of Section 14(3) of the Act of 1950 as the suit has been filed before the expiry of five years from the date the suit premises were taken on rent by the defendant-respondent from the plaintiff-appellant ?" (Burden on defendant-respondent) 23. Thus, the substantial question which was framed by this Court on 22.10.1984 is decided in the manner that such plea was rightly entertained by the learned District Judge, but the manner in which it has been decided is against the well established principles of law as the plaintiff-appellant was not given the opportunity to adduce the evidence on the point in question.Therefore, for the reasons stated above, this second appeal is allowed and the decree darted 1.6.1984 is set aside and the portion of the judgment dated 1.6.1984 passed by the learned District Judge, Jodhpur by which he decided the plea based on Section 14(3) of the Act of 1950 is set aside and the matter is remanded to the learned District Judge, Jodhpur with the following directions : 1. The learned District Judge, Jodhpur is directed to decide the above issue framed by this Court in para 22 of this judgment. For that he shall give opportunity to both the parties to lead their evidence and if they desire, they may also be permitted to produce documents in support of that plea. 2. Since the burden is placed on the defendant-respondent to prove the above issue, therefore, the learned District Judge shall permit first the defendant-respondent to lead evidence and, thereafter, rebuttal, opportunity be given to the plaintiff-appellant also. 3. 2. Since the burden is placed on the defendant-respondent to prove the above issue, therefore, the learned District Judge shall permit first the defendant-respondent to lead evidence and, thereafter, rebuttal, opportunity be given to the plaintiff-appellant also. 3. It is again made clear that so far as the findings recorded by both Courts below on issues No. 1 and 2 are concerned, they shall remain intact and they have not been disturbed in this second appeal as they have not been challenged in this Court. 4. The learned District Judge after giving findings on the issue framed by this Court, will thereafter, decide the first appeal. The decision of the first appeal shall rest on the decision of the remitted issue. If the remitted issue is decided in favour of the defendant-respondent, then the suit of the plaintiff-appellant shall stand dismissed and if the remitted issue is decided in favour of the plaintiff-appellant, then, the suit of the plaintiff-appellant would stand decreed. 5. The learned District Judge is further directed to decide the remitted issue and appeal within a period of six months from the date of receipt of a certified copy of this judgment and records of the case. 6. The office is directed to send the records of both the Courts below along with the copy of this judgment to the learned District Judge, Jodhpur immediately and in any case before 29th May, 2000. 7. The parties are directed to appear before the learned District Judge, Jodhpur on 29.5.2000. 8. No order as to costs. Appeal allowed.