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2013 DIGILAW 709 (MP)

Abdul Rahim v. Asgar Ali

2013-06-26

S.C.Sharma

body2013
ORDER 1. The present second appeal has been filed by the defendant under section 100 of Code of Civil procedure, 1973 against the judgment and decree passed by the learned 9th Additional District Judge, Ujjain in Regular Civil Appeal No.6 -A/2011 dated 26.11.2011, by which the appellate Court has confirmed the judgment and decree passed by the Civil Judge Class-I Ujjain in Civil Suit No.25 -A/09 decided on 21.1.2011. 2. The record of the case reflects that the plaintiff is the owner of House No.104 Kamri Marg, Ujjain and the defendant is a tenant in respect of a shop located at the ground floor of the house in question. It is also not in dispute that the shop in question was given on a monthly rent of Rs.550/-. It is also not in dispute that the suit was filed against the present appellant for eviction and various grounds were raised by the plaintiff in respect of eviction. It was categorically pleaded in the civil suit that the shop in question is required on account of bona fide need of the plaintiff’s son as he wants to start his own business and he has also attained majority. Witnesses were examined by the trial Court and based upon the statement of witnesses, it was established that the son of the plaintiff has attained majority and in order to start his business, he is in need of the premises. Not only this, PW-1 Asgar Ali has categorically stated that the plaintiff’s son Kayed Johar has attained majority, he is married and in order to earn his livelihood he wants to start his own business of selling cloth from the premises in question. Not only this, PW-1 Asgar Ali has categorically stated that the plaintiff’s son Kayed Johar has attained majority, he is married and in order to earn his livelihood he wants to start his own business of selling cloth from the premises in question. The other witnesses namely Sabbir Husain (PW3), Kayed Johar (P-2) and Tayyawali (PW 4) have categorically stated that Kayed Johar wants to start his own business and at present there is no other place except the place in question from where Kayed Johar wants to start his business, though the defence was taken by the defendant stating in the written statement that son of the plaintiff can very well to continue his business activity with his father, but the trial Court relying upon the large number of witnesses and the facts on record has arrived at a conclusion that the plaintiff’s son is certainly in need of the premises in question and on account of bona fide need, the suit has been decreed. The first appellate Court after appreciating the facts, evidence as well as law on the subject has declined to interfere with the judgment and decree dated 21.1.11, meaning thereby there are concurrent findings of fact on record establishing the bona fide need. 3. This court has carefully gone through the entire judgment delivered by the trial Court as well as first appellate Court and is of the considered opinion that the judgment is based upon purely on appreciation of facts and no substantial question of law is involved warranting adjudication under section 100 of Code of Civil Procedure, 1973. The apex Court in the case of Gurudev Kumar and Others v. Kaki and Others, reported in (2007) 1 SCC 546 in paragraphs 45, 49, 51, 70 and 72 has held as under :- 45. The Amendment Act of 1976 has introduced drastic changes in the scope and ambit of section 100 CPC A second appeal under section 100 CPC is now confined to cases where a question of law is involved and such question must be a substantial one. Section 100, as amended, reads as under: “100. Second appeal. The Amendment Act of 1976 has introduced drastic changes in the scope and ambit of section 100 CPC A second appeal under section 100 CPC is now confined to cases where a question of law is involved and such question must be a substantial one. Section 100, as amended, reads as under: “100. Second appeal. (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.” 49. A mere look at the said provision shows that the High Court can exercise its jurisdiction under section 100 CPC only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned Single Judge. It is held by a catena of judgments by this Court, some of them being, Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438 and Sheel Chand v. Prakash Chand (1998) 6 SCC 683 that the judgment rendered by the High Court under section 100 CPC without following the aforesaid procedure cannot be sustained. It is held by a catena of judgments by this Court, some of them being, Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438 and Sheel Chand v. Prakash Chand (1998) 6 SCC 683 that the judgment rendered by the High Court under section 100 CPC without following the aforesaid procedure cannot be sustained. On this short ground alone, this appeal is required to be allowed. 51. Again in Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. (2001) 3 SCC 179 , another three- Judge Bench of this Court correctly delineated the scope of section 100 CPC. The Court observed that an obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the Court. In the said judgment, it was further mentioned that the High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. According to the Court 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 with - 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” as has been done in many other provisions such as section 109 of the Code of Article 133(1) (a) of the Constitution. 70. Now, after 1976 Amendment, the scope of section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the section is that the appeal shall be heard only on that question. 72. When section 100 CPC is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law.” 4. This Court is of the considered opinion that in light of the judgment delivered by the apex Court in the aforesaid case, the question of interference in the peculiar facts and circumstances of the case does not arise. The appeal is dismissed summarily.