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2002 DIGILAW 159 (JK)

Joginder Kumar v. Ram Kour

2002-05-16

S.K.GUPTA

body2002
1. This is a motion for admission of a civil second appeal directed against the judgmcnt and decree dated: 27-11-2001 in File No. 2/Appeal passed by the Second Additional District Judge, Jammu. By the aforesaid judgment and decree, appeal of the defendant/appellant stood dismissed. 2. The facts of the case depicted in narration are that. the demised premises were railed out to the defendant/appellant on a monthly rental of Rs. 50/-. That the tenant/defendant had not been paying the rent regularly and instead deposited it with the Rent Controller. Jammu. It is further averred that the defendant committed more than three defaults of not paying rent within a period of 18 months thereafter. It is further the case of the plaintiff/ respondent that the tenanted shop is reasonably required after converting it into a room, to accommodate his son recently married on 08-02-1987 as the members of the family experience a great hardship on account of shortage of accommodation. Thai the reasonable requirement of the plaintiff/respondent cannot be met by partial eviction and the present accommodation available with the family is not sufficient to accommodate his newly married son. 3. The suit, however, resisted by the defendant/appellant by filing a written statement on variety of grounds. The defendant/appellant, however, denied to have committed default in the payment of rent regularly to the plaintiff/respondent and pleaded that it was on the refusal of the plaintiff/respondent to accept the rent that compelled the deposit of the rent with the Rent Controller. That the plaintiff/respondent has sufficient accommodation consisting of 8 rooms, where he could conveniently accommodate his newly married son. That the suit has been filed only as and vice tool to demand enhanced rent and harass the defendant/appellant. The need of the plaintiff is neither bonafide nor genuine for the tenanted shop. On the pleadings of the parties, following issues are framed by the Trial Court. 1. Whether the plaintiff reasonable requires the suit premises and the need of the plaintiff is much more preferential than that of the defendant? ....OPP 2. Whether the defendant has committed more than three legal defaults within a period of eighteen months and its effect on the suit? ...OPP 3. Whether the partial eviction can suffice the requirement of the plaintiff? ...OPP 4. Relief 4. The appellant, however, proceeded exparte vide order dated: 29-10-1999. ....OPP 2. Whether the defendant has committed more than three legal defaults within a period of eighteen months and its effect on the suit? ...OPP 3. Whether the partial eviction can suffice the requirement of the plaintiff? ...OPP 4. Relief 4. The appellant, however, proceeded exparte vide order dated: 29-10-1999. The application for setting aside exparte proceedings was also stood rejected on 06-03-2000 as the case was reserved for judgment. After recording the oral and documentary evidence offered by the parties, the Trial Court came to the conclusion that the plaintiff/respondent personally requires the suit shop to accommodate his married son for his residence by converting it into a room and that the need of the plaintiff is genuine, bonafide and comparatively more preferential than that of the defendant/appellant and also that the partial eviction cannot meet the requirement of the parties. In so far as the ground of default is concerned, it remained unproved in any of the evidence. The decree for eviction was. however, passed only on the ground of personal necessity of the plaintiff/respondent. 5. Being dissatisfied with the judgment and decree passed by the Trial Court, the defendant/appellant impugned its correctness before the learned Second Additional District Judge, Jammu. The Appellate Court, after hearing the respective parties affirmed the finding of the Trial Court, dismissed the appeal of the defendant/appellant. It is the aforesaid decision of the Appellate Court challenged by the defendant appelant in this Second Appeal in exercise of jurisdiction under Section 100 CPC. seeking the reversal of decree of both the Courts below and dismissal of the plaintiff\respondent suit. 6. Heard the learned counsel for the parties on the admission of this Civil Second Appeal. 7. A plenary reading of Section 100 CPC shows that the jurisdiction of the High Court to entertain Second Appeal after amendment is confined only to such appeal as involved a substantial question of law, specifically set out in the memorandum of appeal and formulated by the High Court. Of course, the proviso to the Section shows that nothing shall be deemed to take away or abridge the power of the Court to hear, for reasons to be considered, the appeal on any other substantial question of law. not formulated by it. if the Court is satisfied that the case involves such question. The existence of substantial question of law is. not formulated by it. if the Court is satisfied that the case involves such question. The existence of substantial question of law is. thus, thesine qua non for the exercise of the jurisdiction under the amended provisions of Sect ion 100 CPC. 8. The proper test for determining whether a question of law raised in the case is substantial would be. whether it is of general public importance or whether it directly or substantially effects the rights of the parties. It is. however, not within the domain of the High Court to investigate about the grounds on which finding had arrived at. by the last Court on fact, being the first Appellate Court. The High Court cannot substitute its opinion for the opinion of the first Appellate Court unless it is found that the conclusion drawn by the lower Appellate Court is erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court or was based upon inadmissible evidence or arrived at without evidence. The grounds, on which the judgment and decree of the First Appellate Court has been assailed, have been set out in para No. 1 of the memorandum of appeal. 9. Mr. A.V Gupta, learned advocate appearing for the appellant, vehemently urged that the evidence led by the plaintiff is contrary to the pleadings of the parties and. consequently. the judgment and decree passed by the Court are perverse. It was further contended that the Trial Court was not justified in setting aside the case exparte against the appellant. 10. As regards the first contention raised by Mr. A.V.Gupta, appellants counsel. that the evidence on record is contrary to the pleadings of the parties and consequently resulted into perverse decree and judgment passed by Trial Court, as well as First Appellate Court, it is pertinent to point out that whether a finding of fact reached by the Court below is whether on evidence or not is a question of law, remains in the realm of appreciation of evidence and does not appear to be any question of law. much less am substantial question of law to be determined by the Court in Civil Second Appeal. The eviction suit has been decreed by the Trial Court on the ground of bonafide requirement of the demised premises for residential purpose of his married son. much less am substantial question of law to be determined by the Court in Civil Second Appeal. The eviction suit has been decreed by the Trial Court on the ground of bonafide requirement of the demised premises for residential purpose of his married son. It is well settled that a finding in regard to reasonable requirement of the landlord, or one regard to the comparative advantage or disadvantage of the parties recorded on appreciation of evidence, is a finding of fact pure and simple, and such a finding or recorded by the two Courts below would be binding on the High Court, however, an erroneous it may otherwise be. and a decision of the Division Bench of this Court in Mohd Ashraf Ahanger Vs. Ghulam Mohd Shah and others. AIR 1982 J&K 11, may be noticed. It is neither a case of no evidence nor a case of perverse finding. In this case, the landlord has sought eviction for the benefit of member of his family, and therefore, does not operate as a bar. Further submission of Mr. A. V, Gupta that his application for setting aside exparte proceedings was rejected on technical grounds also does not hold in view of the fact that the finding arrived at on the appreciation of evidence by both the Courts below. It became final and cannot be interfered with by the High Court. Therefore, finding recorded on the bonafide requirement of the landlord for the demised premises for a member of his family by both the Courts below being based on evidence on record, its setting aside for reappraisal of evidence and in any case does not give rise lo a substantial question of law to be determined in Civil Second Appeal All these submissions made by Mr. A. V. Gupta are within the realm of appreciation of evidence, which cannot be interfered by the High Court in Civil Second Appeal. The High Court has no jurisdiction to entertain second appeal on the ground of erroneous findings of fact, howsoever, gross or inexecusable the error may be. It may further be pointed out that concurrent finding of facts cannot be perversed by reappraisal of the evidence by the High Court in a Civil Second Appeal. In other words, fresh appraisal of evidence is not permissible. It may further be pointed out that concurrent finding of facts cannot be perversed by reappraisal of the evidence by the High Court in a Civil Second Appeal. In other words, fresh appraisal of evidence is not permissible. I am of the view that no substantial question of law in the facts and circumstances of the case is involved in this appeal and, therefore, accordingly dismissed without costs. The record of the Courts below shall be remitted back forthwith.