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2003 DIGILAW 606 (RAJ)

Reezju Bhai v. Sethani Umrao Kanwar

2003-04-23

HARBANS LAL

body2003
JUDGMENT 1. - This civil second appeal under Section 100 CPC under Order 41 Rule 1 & 2 CPC has been preferred against the judgment and decree dated 18.7.2001 passed by the learned Additional District Judge No. 1, Ajmer in Civil Appeal No. 58/94 affirming the judgment and decree dated 25.2.1994 passed by the learned Munsif (West) city, Ajmer in COS No. 4/91 whereby the suit of the plaintiff respondent for arrears of rent and eviction has been decreed. 2. The plaintiff respondent instituted a suit for arrears of rent and eviction against appellant in the court of Munsif, Ajmer city on 1.1.1991 on the ground of second default in payment of rent with the averments that a house No. 7/341 was let-out by him to the appellant on a monthly rent of Rs. 27.50 plus Rs. 2.50 House Tax and that he has not paid the rent of the said premises w.e.f. 1.1.1988 to 31.12.1990 and thus a sum of Rs. 1,080/-,has become due against him which has neither been paid nor tendered to him and thus has committed default in the payment of rent. It was also pleaded that a suit on the same ground of default with regard to same premises was also field by him being COS No. 182/85 which was decided by the learned Addl. Munsif, Ajmer on 24.7.1985 holding that the defendant had committed default in payment of rent, but giving him the benefit of first default under section 13(6) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (here-in-after referred to as `the Act'), the suit was dismissed. Thereafter, the defendant has committed second default in payment of rent. He, therefore, prayed for a decree of eviction on the ground of default in payment of rent and for recovery of the arrears of rent. The suit was contested by the defendant by filling written statement and denying that he has committed default in payment of rent. He pleaded that the rent was deposited by him under section 19 CC of the Act in advance and, therefore, prayed for the dismissal of the suit. The suit was contested by the defendant by filling written statement and denying that he has committed default in payment of rent. He pleaded that the rent was deposited by him under section 19 CC of the Act in advance and, therefore, prayed for the dismissal of the suit. On the pleadings of the parties, four issues were framed and after taking oral and documentary evidence of the parties and after affording opportunity of hearing, the suit was decreed on 25.2.1994 which judgment and decree was affirmed by the learned first appellate court vide impugned judgment and decree dated 18.7.2001. 3. Both the courts below have recorded concurrent finding of fact that the rent has not been legally deposited as pleaded. 4. I have heard learned counsel for the parties on the admission of this appeal and have also perused the impugned judgment and decree as well as the judgment and decree of the trial court and the record. 5. Learned counsel for the appellant has argued that substantial legal questions as suggested in para J (i) to (vi) arise in this appeal and, therefore, this appeal should be admitted. 6. Learned counsel for respondent has contended that no substantial question of law arises in this appeal and this appeal is not entertainable with regard to concurrent findings of fact. 7. Un-doubtedly second appeal can be admitted only on a substantial question of law. The Hon'ble Apex Court has been taking a very serious view of the matter emphasising that the High Court should not entertain a second appeal under Section 100 Code of Civil Procedure, 1908 (for short `the Code') unless it raises a substantial question of law. 8. In Panchugopal Barua & Others v. Umesh Chandra Goswami and others, reported in AIR 1997 SC 1041 , the Court observed that while entertaining the second appeal, the court should not over-look the change brought about by the Amendment Act of 1976 restricting the scope of second appeal drastically and now, it applies only to appeals involving substantial question of law specifically set out in the memorandum of appeals and formulated by the High Court. The court, for the reasons to be recorded. may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the court is satisfied that the case involves such a question. The court, for the reasons to be recorded. may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the court is satisfied that the case involves such a question. The existence of a substantial question of law is a sine qua none for the exercise of jurisdiction under the amended provisions of Section 100 CPC. It is the obligation of the court of law to further the clear intendment of the Legislature and not to frustrate it by ignoring the same. 9. A Constitutional Bench of the Hon'ble Supreme Court in State of J & K & others v. Thakur Ganga Singh, reported in AIR 1960 SC 356 considered as to what may be the substantial question and held that authentic interpretation of the Constitutional provisions amounts to substantial question of law. However, where the substantial question of law had already been decided by the Authority which is binding on the other Courts like the judgments of the Hon'ble Supreme Court under Article 141 of the Constitution is binding on all other courts etc., it does not remain a substantial question of law because there remains no scope to interpret further the said provision. 10. A second appeal even on question of fact can be. entertained provided the court is satisfied that the findings of the Court below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter. 11. When judged on the aforesaid touch stone, it becomes obvious that the learned courts below have concurrently held by detailed discussion and appreciation of evidence on record and on the basis of the authorities that the provision of Section 19A(1) to (3) of the Act for deposit of advance rent under section 19CC of the Act are not required to be complied with and the only provision of sub-sections (4) to (8) of Section 19A of the Act are the complied with. Both the courts have concurrently held that there was no legal deposit of rent in the instant case. 12. I do not find any perversity in the aforesaid concurrent findings of fact by the courts below. There is neither any misreading of evidence on record nor non-consideration of the material evidence on record. Both the courts have concurrently held that there was no legal deposit of rent in the instant case. 12. I do not find any perversity in the aforesaid concurrent findings of fact by the courts below. There is neither any misreading of evidence on record nor non-consideration of the material evidence on record. It also cannot be said that the approach of the learned courts below is in any way erroneous so as to ant and justify interference of this court in the findings of fact. Thus no substantial question of law arises in this appeal for consideration a decision of this court and this appeal deserves to be and is hereby dismissed at admission stage.Second Appeal Dismissed. *******