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2011 DIGILAW 1046 (RAJ)

Mohan Lal v. Rahisa Begum

2011-05-16

NARENDRA KUMAR JAIN

body2011
Hon'ble JAIN, J.—Heard the learned counsel for parties. 2. Application dated 16th May, 2011 filed by appellants is allowed. The substantial questions of law mentioned in the application are treated as part of memo of second appeal. 3. At the requests of learned counsel for parties, the arguments were heard and appeal is being disposed off finally. 4. The following substantial question of law is involved in this second appeal:- "Whether the Court deciding first appeal under the Civil Procedure Code is required to discuss and deal with the evidence led by the parties on each issue and is required to give reasons in support of its conclusions failing which such a judgment by the first appeal is required to be set aside." 5. Briefly stated the facts of the appeal are that plaintiffs-respondents filed a suit for eviction in respect of rented premise on the ground of personal bonafide necessity as well as sub-letting. The suit was contested by defendants. Trial Court, after considering the submissions of parties and examining the evidence of the case, came to a conclusion that plaintiffs failed to prove the issue of sub-letting, but has proved the issue relating to personal bonafide necessity. Consequently, plaintiffs' suit for eviction was decreed. Being aggrieved with the same, an appeal was preferred, which was dismissed by first appellate Court vide its judgment and decree dated 22nd March, 2010. Hence, this second appeal has been preferred on behalf of defendants. 6. Submission of learned counsel for appellants is that from the perusal of impugned judgment passed by first appellate Court, it is clear that evidence of parties was neither referred nor discussed and in a very cursory manner the issues were decided by first appellate Court and judgment and decree passed by Trial Court was affirmed. Therefore, the impugned judgment passed by first appellate Court is liable to be set aside. 7. Learned counsel for respondents submitted that first appellate Court is not required to go into the evidence in detail. He further submitted that in case, finding of Trial Court is to be affirmed then discussion of evidence in detail is not necessary, the appellate Court has discussed the relevant evidence, therefore, there is no force in the submission of learned counsel for appellants and the appeal deserves to be dismissed. 8. He further submitted that in case, finding of Trial Court is to be affirmed then discussion of evidence in detail is not necessary, the appellate Court has discussed the relevant evidence, therefore, there is no force in the submission of learned counsel for appellants and the appeal deserves to be dismissed. 8. I have considered the submissions of learned counsel for parties and examined the impugned judgments passed by both the Courts below. 9. The property in dispute was rented out in the year 1984. The present suit was filed for eviction in the year 1998 on the ground of sub-letting and personal bonafide necessity. The suit was decreed by Trial Court on the ground of personal bonafide necessity. Issues No. 2, 3 and 4 were framed in respect of personal bonafide necessity, partial eviction and comparative hardship respectively. The judgment of first appellate Court shows that while discussing issue Nos. 2, 3 & 4, first appellate Court has not referred and discussed the evidence of the case at all. First appellate Court neither mentioned the names of witnesses of parties nor their statements in brief were referred and discussed for arriving at its conclusion. First appellate Court may modify, affirm or reverse the finding of Trial Court, but it, being a fact findings Court, is required to examine the evidence of parties in detail. Since, finding of first appellate Court with regard to fact is final and binding in second appeal, therefore, it is more necessary for first appellate Court to scrutinize the evidence of parties in detail and to come on its own independent conclusion. 10. In these circumstances, I am of the view that learned first appellate Court committed a serious illegality in not referring and discussing the evidence of parties, while deciding issue Nos. 2, 3 and 4, therefore, its judgment cannot be allowed to be sustained and question formulated above is answered in the manner that first appellate Court, being a fact finding Court, is required to refer and discuss/appreciate the parties evidence and, thereafter, to come on its own conclusion independently. 11. 2, 3 and 4, therefore, its judgment cannot be allowed to be sustained and question formulated above is answered in the manner that first appellate Court, being a fact finding Court, is required to refer and discuss/appreciate the parties evidence and, thereafter, to come on its own conclusion independently. 11. Consequently, second appeal is allowed, the impugned judgment and decree dated 22nd March, 2010 passed by Additional District Judge (Fast Track) No. 1, Jaipur City, Jaipur in regular civil appeal No. 16/2009 is set aside & the matter is remanded back to first appellate Court for deciding the appeal afresh on merits after appreciating the evidence of parties properly in accordance with law and after affording an opportunity of being heard to the parties. 12. Parties are directed to bear their own costs. 13. Since, suit was filed in the year 1998, therefore, I direct first appellate Court to decide the appeal afresh within a period of three months from today. The parties are directed to appear before first appellate Court on 5th July, 2011. 14. Registry is directed to send record of both the Courts below to the first appellate Court immediately.