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2004 DIGILAW 16 (JK)

Paras Ram v. Kasturi Lal

2004-02-11

S.K.GUPTA

body2004
JUDGMENT 1. This Civil Second Appeal has been preferred against the judgment and decree dated 22.02.2003, passed by the 2nd Addl. District Judge, Jammu, whereby the judgment and decree dated 19-10-2001, passed by the trial court in Civil suit No.117 titled Kasturi Lal Vs. Behari Lal, has been confirmed and the appeal was dismissed. 2. The facts of the case, in brief, are noticed: 3. The suit for eviction came to be commenced by plaintiff-landlord, Kasturi Lal against Behari Lal, defendant, before the trial court, mainly on three grounds. Firstly, bonafide requirement of the landlord of the demised shop to establish business for his grown up sons. Secondly reconstruction of the suit shop to increase accommodation to the advantage of the plaintiff-land lord and serve public purpose. Thirdly, the defendant has committed default in payment of rent, before institution of the suit. 4. The trial court framed the issues, based on the context and contour of the pleadings of the parties and allowed the parties of adduce evidence in support and in rebuttal thereof. The evidence adduced by the parties was discussed by the trial court thread-bare and it returned a finding based on the evidence of the parties in favour of the plaintiff- landlord with regard to personal bonafide requirement of the suit shop and for reconstruction, decreed the suit vide judgment dated 19-10-2001. aggrieved by the aforesaid judgment and decree, passed by the trial court, defendant appellant canvassed its correctness before the first appellate court. The first appellate court, after scrutiny, reached a finding of fact based on evidence, on record, and confirmed the judgment of the trial court after appreciation, evaluation and estimation of the evidence in its proper perspective. The first appellate court further held that the finding of the trial court is well reasoned in regard to the requirement of the suit shop of the plaintiff landlord for his personal use and occupation, and further to increase the accommodation by reconstruction. This concurrent finding of the fact given by the court below, became the subject matter of challenge by the aggrieved tenant in this civil second appeal. 5. Mr. Wazir, learned counsel for the appellant, vehemently urged that the judgment passed by the courts below is based on totally mis-appreciation of evidence. This concurrent finding of the fact given by the court below, became the subject matter of challenge by the aggrieved tenant in this civil second appeal. 5. Mr. Wazir, learned counsel for the appellant, vehemently urged that the judgment passed by the courts below is based on totally mis-appreciation of evidence. His further submission is that, the plaintiff-landlord has no where specified the nature of business which he intends to run in the shop in-question after joining it with the adjoining shop in his possession. That the issue of re-construction was required to be proved by the plaintiff-landlord but the onus has been wrongly put on appellant and the case involves, substantial questions of law, to be determined by the court, in Civil Second Appeal Mr. Wazir further submitted that liberal construction and generous application should be accorded to the provision of section 100 CPC in considering the civil second appeal for admission. 6. It may be pointed out at the threshold, that the legality of finding of fact cannot, but to termed to be a question of law, no where the trial court has reached at the finding of fact based on evidence adduced by the parties and further stood confirmed in appeal after proper appreciation and scrutiny by the first appellate court. The second appeal would not be justified without framing the substantial question of law. Mr. Wazir when taken through the memo of appeal could not justify and point out that the proposed questions formulated are the substantial questions of law in compliance to Sec. 100 CPC, to be determined by the Court. In fact all the question proposed in the memo of appeal are questions of fact on which there are concurrent findings returned by trial court and affirmed by the first appellate court. The concurrent findings of fact rendered by both the courts below are based on proper appreciation and scrutiny of evidence and in accordance with the statutory provisions governing the field. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under section 100 CPC. In other words, it is a substantial question of law determining the scope of second appeal. In case of concurrent findings of fact, rule of non interference is to be applicable. The scope of interference in concurrent finding stands vitiated on wrong test and on the elements of perversity. In other words, it is a substantial question of law determining the scope of second appeal. In case of concurrent findings of fact, rule of non interference is to be applicable. The scope of interference in concurrent finding stands vitiated on wrong test and on the elements of perversity. There is not even a whisper in the memo of appeal that the finding of fact is based on assumption, conjectures and therefore, tainted with perversity so as to invoke the jurisdiction of the court to deal with the matter in second appeal. The Judgment of the Apex Court cited by Mr. Wazir in support of his contentions do not apply to the facts of the case being clearly distinguishable though there is no dispute with regard to the principles laid down in the said judgment. The issues raised in the memo of appeal are all factual issues on which the concurrent findings have been returned by the Court below after proper scrutiny of the evidence on record. Thus, they do not constitute the substantial questions of law to entertain this civil second appeal. 7. It may not be out of place to mention here, that the provisions of section 100 of the CPC have not to be liberally constructed and generously applied. If the objective intended to by section 100 CPC is to be achieved and not allowed to be frustrated, the concurrent finding of fact could not be disturbed in the civil second appeal, unless it is tainted with perversity. The scope of hearing civil second appeal is circumscribed by substantial questions of law involved in the case and for its satisfaction, the court has to record the reasons. 8. The word substantial, as qualifying "Question of law" means-of having substance, essential, real of sound worth, important or considerable. It is to be understood as something in contradistinction to technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words of "general importance". It is, therefore, necessarily, the substantial question of law on which a second appeal shall be heard. 9. In the above view of the matter, case does not involve any substantial question of law to be determined in civil second appeal. The civil second appeal, therefore possesses no merit and is accordingly dismissed.