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Rajasthan High Court · body

2000 DIGILAW 823 (RAJ)

Satya Prakash v. Gyarsi alias Gyarsiram

2000-07-14

R.R.YADAV

body2000
JUDGMENT : 1. The present second appeal is preferred against the concurrent finding of fact, recorded by both the Courts below to the effect that the premises in question is required reasonably and bonafidely by the landlord and his son, within the meaning of clause (h) of sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act of 1950). 2. Heard the learned Counsel for the parties, at length. Pursued the judgments given by both the courts below. 3. It is urged by the learned Counsel, appearing for the appellant, Shri Sagar Mal Mehta that even if the present second appeal is concluded by concurrent findings of fact, interference is possible, provided, it is demonstrated before this Court that findings are either perverse, or based on no evidence, or it is shown that material evidence is ignored by Courts below and if it would have been (taken) into account by the Court below, the findings would have been otherwise. Lastly, it is submitted that in those second appeals, where ironing out of creases of statutory provisions are involved, even such appeals are concluded by concurrent findings of fact, even then interference can be made possible within the meaning of amended Section 100 of the Code of Civil Procedure . 4. The learned Counsel, Shri B.L. Agarwal, appearing on behalf of the respondent, supported the concurrent findings of fact, recorded by both the Courts below. It is urged by Shri Agarwak that the instant second appeal is concluded by the concurrent findings of fact, recorded by both the Courts below and no substantial question of law is involved in it therefore it deserves to be dismissed at admission stage. It is submitted by Shri Agarwal that the learned trial Court has assessed the testimonial value of all the witnesses examined by both the parties, except P.W. 5, Pappu alias Ganesh. According to him, although, the learned trial Court has not examined the testimonial value of P.W. 5, but when this question was agitated before the learned first appellate Court, its testimoinal value was assessed by it. 5. According to him, although, the learned trial Court has not examined the testimonial value of P.W. 5, but when this question was agitated before the learned first appellate Court, its testimoinal value was assessed by it. 5. It is further submitted by the learned Counsel for the respondent that prior to amendment of Section 100 of the Code of Civil Procedure , interference could have been made in second appeal where an order was shown to be contrary to law or some usage having the force of law, but after amendment, it can only be interfered if any substantial question of law arises in it and not otherwise. In support of his aforesaid contention, the learned counsel for the respondent placed reliance on the decisions rendered by the Supreme Court, of Hari Singh v. Kanhaiya Lal and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar reported in 1999 (3) SCC 722 . 6. In rejoinder, Shri Mehta has brought to my notice the oral statements of P.W.1, Gyarsilal; P.W.2, Gopal; P.W.3, Shyamlal; P.W.4, Munna; and P.W.5, Pappu alias Ganesh. He also invited my attention to the statements of D.W.1, Satya Parkash; D.W.2, Kishan Gopal; and D.W.3, Mukut Behari, examined by the tenant-defendant-appellant. He brought to my notice an isolated piece of statement of P.W.5, which, according to him, is relevant in the present case, for just decision of the case. 7. I have given my thoughtful consideration to the rival contentions raised at the Bar. 8. I have examined the judgment given by the learned first appellate Court in the light of Order 41, Rule 31, CPC, which reveals that the learned first appellate Court has decided the point for determination between the parties, in accordance with law. The learned first appellate Court has consciously re-assessed the testimonial value of the evidence adduced by both the parties, in reference to the points of law involved in first appeal. In this case, the findings recorded by the learned first appellate Court, are based on analytical discussion of the evidence adduced by both the parties. In support of its findings, the learned first appellate Court has given cogent and convincing reasons, with which I am at one. 9. In this case, the findings recorded by the learned first appellate Court, are based on analytical discussion of the evidence adduced by both the parties. In support of its findings, the learned first appellate Court has given cogent and convincing reasons, with which I am at one. 9. I am of the view that after amendment of Section 100 of the Code of Civil Procedure , a finding, recorded by first appellate Court is made binding in second appeal, therefore, the first appellate Courts are required to evaluate the evidence on record and decide an appeal, as envisaged under Order 41, Rule 31, CPC, which provides that judgment of the appellate Court shall be in writing and shall state points for determination; the decision thereon; the reasons for the decision; and where the decree appealed from is reversed or varied, the relief to which appellant is entitled. 10. Shri Mehta has argued with emphasis that the findings recorded by both the Courts below are perverse, such findings are liable to be set aside in second appeal. The contention raised by Shri Mehta is not acceptable, for the reasons given herein-below. 11. The counsel of perversity has been defined by judicial pronouncements, which are available in law lexicon reporters to the effect that a judgment of a Court can be said to be perverse, if no prudent man can arrive at a conclusion at which the Court has arrived. Here, if the present case is tested on the aforesaid principle, then, by no stretch of imagination, it can be held that the judgments given by both the Courts below, are perverse. In my considered opinion, the judgments given by both the Courts below are imminently just and proper. Both the Courts below have consciously marshalled the evidence on record and have given cogent and convincing reasons in support of its findings, and an argument contrary to it, is not acceptable. 12. In my considered opinion, the judgments given by both the Courts below are imminently just and proper. Both the Courts below have consciously marshalled the evidence on record and have given cogent and convincing reasons in support of its findings, and an argument contrary to it, is not acceptable. 12. It is next contended by Shri Mehta that even if it is that the findings, recorded by both the Courts below, are not perverse, even then at least, the learned trial Court has ignored the statement of PW 5, Pappu alias Ganesh, which is fatal in this case whereas, according to the learned counsel for the respondent, the statement of PW 5, Pappu alias Ganesh, which was ignored by the learned trial Court, after being raised before the learned first appellate Court, the learned first appellate Court has evaluated the testimonial value of the statement of PW 5. I am of the view that the isolated piece of the statement of PW 5, which is inconsistent with the statement of his father PW 1, even if would have taken into account, the findings arrived at by both the Courts below, could have not been otherwise. Therefore, it is not acceptable that since the learned trial Court has ignored the statement of PW 5, therefore, interference is required in second appeal, even if the statement of PW 5, has been evaluated by the learned first appellate Court. 13. Indisputably, the landlord-plaintiff-respondent and his son Pappu alias Ganesh are doing cycle-repair business on the footpath. They have categorically stated that now-a-days, it is not possible for them to carry on their business of cycle-repair, on the footpath, due to intervention of Municipal Council, Jaipur. I am of the view that in such a situation, it cannot be said that both the Courts below have committed any error in decreeing the suit of the plaintiff-landlord, on the ground of reasonable and bonafide requirement of the premises in dispute by the landlord-plaintiff- respondent. 14. The next limb of the argument of Shri Mehta is that in the present case, it is borne out from the reading of the statements of PWs. 1 to 5 and DWs 1 to 3 that the landlord-plaintiff-respondent has three shops in the city of Jaipur. It is further borne out from the statements of the witnesses that Aleem had sublet one of the shops to Babulal. 1 to 5 and DWs 1 to 3 that the landlord-plaintiff-respondent has three shops in the city of Jaipur. It is further borne out from the statements of the witnesses that Aleem had sublet one of the shops to Babulal. It is urged by Shri Mehta that as a matter of fact, Aleem had vacated the shop, and when he vacated it, the landlord-plaintiff-respondent let it out to Babulal. The aforesaid contention, raised by Shri Mehta has no substance. As a matter of fact, when the tenant-defendant-appellant filed his written-statement, he never made an averment that Aleem had vacated the shop, and when the possession was taken over by the landlord-plaintiff-respondent, he let it out to Babulal. It is borne out from the perusal of the oral evidence available on record that the tenant-defendant-appellant has merely given suggestions to this effect, to the witnesses, adduced by the landlord-plaintiff-respondent, at the time of their cross-examination, which they have denied. Both the Courts below have committed no error in evaluating the testimoinal value of the witnesses adduced by both the parties. 15. It is frankly conceded by the learned counsel for the appellant that in the present second appeal, concurrent findings of fact can be assailed only on the aforesaid two grounds, and the rest of two grounds, canvassed in the beginning, are not attracted in it. The concession made by the learned counsel for the appellant, deserves appreciation, and as such, rest of two grounds, on basis of which concurrent findings of fact can be assailed in second appeal, are left to be considered in some other case. 16. Be that as it may, the instant second appeal is concluded by the concurrent findings of fact, recorded by both the Courts below, and no substantial question of law is involved in it. 17. It is to be imbibed by all of us that after amendment under Section 100, CPC, there are inherent limitations to interfere in second appeal. Now, after amendment, re-appraisal of oral and documentary evidence is made impermissible, in second appeal, provided, the High Court is satisified that the Courts below, or at least, the learned first appellate Court, which is last Court of fact, has consciously evaluated the oral and documentary evidence on record, with reference to salient features of law and fact involved in a case. 18. 18. Lastly, it is a submitted by Shri Mehta that the tenant-defendant- appellant is doing the business in the disputed premises since 1977, and it is very difficult in Jaipur City to get a tenement for business. It is submitted by him that in the facts and circumstances of the case, at least two years' time may be granted to the tenant-defendant-appellant, to remain in possession over the disputed premises, so that he may be able to make alternative arrangement for shifting his business to some other place. It is urged by him that the income from the shop is the only source of livelihood of the tenant- defendant-appellant and his family members. 19. The learned counsel appearing on behalf of the respondent, Shri B.L. Agarwal, opposed the grant of two years' time to the tenant-defendant- appellant. 20. Looking into the facts and circumstances of the present case and also taking into account humanitarian considerations, I think it fit and proper to grant one year's time to the tenant-defendant-appellant, to remain in possession over the premises in dispute, provided, he deposits the entire decretal amount with a period of one month, before the learned trial Court and continues to pay the mesne profits month-by-month, to the landlord-plaintiff- respondent. He is further directed to execute an undertaking before the learned trial Court, within the aforesaid period, to the effect that after remaining in possession over the premises in dispute, for a period of one year from today, he would hand over peaceful vacant possession to the landlord- plaintiff-respondent. It is made clear that if the tenant-defendant-appellant fails to comply with any of the conditions, enumerated hereinabove, the landlord-plaintiff-respondent would be at liberty to execute the decree, within the meaning of sub-section (9) of Section 13 of the Act of 1950, in accordance with law.With the aforesaid observations, the instant second appeal is dismissed summarily, at admission stage.Appeal dismissed.