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2014 DIGILAW 82 (CHH)

KAMAL SHARMA v. JETHI BAI

2014-02-21

SANJAY K.AGRAWAL

body2014
JUDGMENT 1. This is defendant's second appeal under Section 100 of the Code of Civil Procedure, 1908 (in short 'CPC') challenging the impugned judgment and decree dated 13/08/2013 passed by Second Additional District Judge, Rajnandgaon in Civil Appeal No. 68-A/2012, affirming the judgment and decree dated 23/08/2012 passed by First Civil Judge, Class-II, Rajnandgaon in Civil Suit No. 09-A/2011. 2. Brief facts necessary for adjudication of this appeal are as under: 2.1 The plaintiffs' have instituted a suit, claiming eviction of defendant on the ground enumerated under Section 12(1) (a) and (e) of the Chhattisgarh Accommodation Control Act, 1961 (in short 'the Act of 1961'). It was pleaded that the defendant is occupying the suit house at the monthly rent of Rs. 200 and, despite service of demand-cum-quit notice, has neither paid the entire arrears of rent, nor has handed over its vacant possession to them. It is further pleaded further that, the plaintiff requires the suit house bonafidely for the residence of her grandson, namely- Trigun Sadani and, for which, suitable residential accommodation is not available in the city of Rajnandgaon. 2.2 The defendant contested the plaintiff's suit stating inter-alia that he has taken the suit house from his predecessor-in-interest, namely Ganga Ram Chandak at the monthly rent of 125 and denied that the suit house requires bonafidely by the plaintiffs. It was further pleaded that an agreement to sale has been executed by one Laxman Sadani, son-in-law of the plaintiff No.1 and, his son- Trigun Sadani in his favour at the rate of Rs. 300 per sq.ft. and has paid a sum of Rs. 78,400 under the said agreement and disputed the grounds raised in the plaint and prayed that suit be dismissed with cost. 2.3 The trial Court, by its judgment and decree dated 23/08/2012 held that: (a) The monthly rent of the suit house is at Rs. 200. (b) The plaintiffs requires the suit house bonafidely for the residence of her daughter's son- Trigun Sadani and the defendant is precluded to avail his defence under Section 12 of the Act of 1961, as his defence was struck off under Section 13(6) of the Act of 1961. (c) The defendant has failed in deposit the arrears rent despite demand-cum-quit notice, dated 10/10/2008; and, in consequence, decreed the suit on the ground under Section 12(1)(a) and (e) of the Act of 1961. (c) The defendant has failed in deposit the arrears rent despite demand-cum-quit notice, dated 10/10/2008; and, in consequence, decreed the suit on the ground under Section 12(1)(a) and (e) of the Act of 1961. 2.4 Feeling dissatisfied against that defendant has filed first appeal under Section 96 of CPC, challenging the judgment and decree of the trial Court. First Appellate Court, by its impugned judgment and decree, dismissed the appeal and affirmed the judgment and decree of the trial Court, however, additionally decreed granted decree under Section 12(1)(c) of the Act of 1961. 3. Mr. Sanjay Shyam Agrawal, learned counsel appearing for the defendant/tenant would submit that both the Courts below has fallen into error by granting a decree under Section 12(1) (a) and 12(1)(e) of the Act of 1961, as dispute with regard to the rent as per provisions prescribed under sub-section (2) of Section 13 of the Act of 1961, was not decided by the two Court below particularly by the trial Court and consequently, the defence under Section 13(6) of the Act of 1961 could not have struck out by the trial Court. Mr. Agrawal would further submit that the need of grandson- Trigun Sadani does not come within the purview of family member, as defined in Section 2(e) of the Act of 1961, and would finally submit that granting of decree under 12(1) (a) and 12(1) (e) of Act of 1961, and order dated 15/07/2011 striking out defence under Section 13(6) of the Act of 1961, without deciding the dispute with regard to the rate of rent, is illegal and submits that following two substantial questions of law arise for determination : (i) Whether the Courts below erred in striking out the defence of the defendant under Section 13(6) of the Act, without determining the dispute of rate under Section 13(2) of the Act and thereby granting a decree under Section 12(1) (a) of the Act of 1961? (ii) Whether decree for eviction for the bonafide need of plaintiff's daughter's son fall within the purview of family members defined under Section 2(e) of the Act of 1961 by recording a perverse finding? 4. I have heard learned counsel appearing for the appellant/defendant and have perused the judgment and decree of both the Courts below. 5. (ii) Whether decree for eviction for the bonafide need of plaintiff's daughter's son fall within the purview of family members defined under Section 2(e) of the Act of 1961 by recording a perverse finding? 4. I have heard learned counsel appearing for the appellant/defendant and have perused the judgment and decree of both the Courts below. 5. The plaintiffs filed suit for ejectment and arrears of rent against the defendant/tenant under Section 12(1)(a) and (e) of the Act of 1961. 6. On summon received, defendant filed his written statement on 25/09/2010, but did not deposit any rent in compliance of Section 13(1) of the Act of 1961, leading to filing of application under Section 13(6) of the Act of 1961 by the plaintiffs for striking out the defence of the defendant/tenant on the ground that Section 13(1) of the Act of 1961 has not been complied with and he has not been deposited amount of Rs. 7,200 towards arrears of rent. 7. The defendant filed his reply to the said application stating inter alia that the defendant was monthly tenant of late Shri Ganga Ram Chandak of Rs. 125, as Shri Ganga Ram Chandak died in the year 1986, after his death the defendant in the year 1994, has purchased the suit land and repaired the suit accommodation as it was in dilapidated condition, in which, the defendant has incurred Rs. 7,400 and submitted that plaintiffs' application be rejected. It is pertinent to mention the defendant even in the written statement has simply stated in Para-1 that on account of death of Ganga Ram Chandak original landlord, there is dispute regarding tenancy between the plaintiffs and defendant, the defendant never disputed before the trial Court as to the rate of rent. 8. The trial Court, by its order dated 15/07/2011, allowed the application under Section 13(6) of the Act of 1961 and struck off the defence of defendant inter alia that the defendant has failed to comply the provisions of Section 13(1) of the Act of 1961, claiming himself the owner/purchaser of the suit house, and has also recorded a finding that the defendant has not disputed the rate of rent and claimed ownership in the suit house. 9. The aforesaid order of the trial Court dated 15/07/2011, was assailed by the defendant in Writ Petition (227) No. 5507/2011 (Kamal Sharma Vs. Jethi Bai and another) before this Court. 9. The aforesaid order of the trial Court dated 15/07/2011, was assailed by the defendant in Writ Petition (227) No. 5507/2011 (Kamal Sharma Vs. Jethi Bai and another) before this Court. This Court vide order dated 19/09/2011 dismissed the writ petition holding inter alia :- "1. By this petition under Article 227 of the Constitution of India, petitioner has challenged the legality and propriety of the order dated 15/07/2011 passed by First Civil Judge Class-2, Rajnandgaon (C.G.) in civil suit No. 09-A/2011, whereby defense of petitioner has been struck off under Section 13(6) of the Chhattisgarh Accommodation Control Act, 1961. 2. Shri Rajesh Thakur, Advocate for the petitioner is heard. 3. Learned counsel for the petitioner submits that petitioner who was tenant of Rs. 125 in the suit premises of original landlord Gangaram Chandak, after death of Gangaram Chandak, he has purchased suit property from son of Gangaram Chandak, namely Shankarlal and he is owner of the property. He has denied the relation landlord and tenant even he has not paid admitted rent. 4. Admittedly, no specific decree for specific performance has been granted in favour of the petitioner or petitioner has not purchased the property by registered sale deed. In these circumstances, petitioner was under obligation to pay rent claimed or even agreed rent but instead of paying such rent petitioner has deliberately not paid monthly rent. Respondent No. 1 & 2 are still co-landlord and entitled for eviction. Consequently, considering the nature of defense of petitioner and nonpayment of rent payable under Section 13(1) of the Chhattisgarh Accommodation Control Act, 1261 by striking off defense of the petitioner, Court has not committed any illegality requiring any interference in exercise of writ jurisdiction. Consequently, petition is liable to be dismissed and is hereby dismissed. No order as to costs. 5. I.A. No. 01 is also dismissed." 10. A bare perusal of the order of this Court would show that the again defendant has claimed ownership of the property, and denied the relationship of landlord and tenant and he has not paid admitted rent. Thus, the order striking out the defence, has already been affirmed by this Court in writ petition under Article 227 of the Constitution of India. 11. Thus, the order striking out the defence, has already been affirmed by this Court in writ petition under Article 227 of the Constitution of India. 11. During pendency of the suit, the defendant again filed an application under Section 5 of the Indian Limitation Act, for extension of time to deposit the rent, which was rejected by the trial Court by order dated 28/11/2011. The petitioner again filed Writ Petition (227) No. 185/2012 (Kamal Sharma Vs. Jethi Bai and another) challgened the said order; this Court by its order dated 13/04/2012, dismissed the writ petition. Operative portion of the said order reads as under:- "5. In the opinion of this Court, when trial Court has already struck of the defence on petitioner's failure to deposit rent as required under Section 13(1) of the Act and the said order has been affirmed by the High Court, neither the delay in depositing the arrears of rent can be condoned nor an application under Section 13(2) for fixation of provisional rent, can be entertained because by doing this would amount to reviewing the earlier order passed by a coordinate bench of this Court." 12. Thus the order dated 15/07/2011 and 28/11/2012 both were challenged in writ. 13. At this stage, Mr. Agrawal, learned counsel for the appellant would submit that though, the orders dated 15/07/2011 and 13/04/2012 were challenged in the writ petitions filed by the defendant/tenant under Article 227 of the Constitution of India, and both the writ petitions were dismissed by this Court yet that the defendant/tenant is entitled to challenge the legality and validity interlocutory order dated 15/07/2011 in this appeal. 14. In order to appreciate the contention of Mr. Agrawal, it would be appropriate to notice the Section 105 of the CPC, which states as under: "105. Other orders.-(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand, (2007) 13 SCC 293 [***] from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness." 15. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand, (2007) 13 SCC 293 [***] from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness." 15. A bare perusal of sub-section (1) of Section 105 of CPC would show that where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as ground of objection in the memorandum of appeal, if the said interlocutory order is not challenged in revision or other proceeding such as writ petition under Article 227 of the Constitution of India. But in the instant case, legality and validity of order dated 15/07/2011 striking out the defence was subjected to proceeding under Article 227 of the Constitution of Indian. If the interlocutory order has been challenged in a proceeding under Article 227 of the constitution of India, then Section 105(1) of CPC would not be applicable, and the defendant is precluded from challenging the correctness of order dated 15/07/2011 in this Second appeal filed under Section 100 of CPC. 16. In case of Soni Dineshbhai Manilal and others Vs. Jagjivan Mulchand Chokshi, (2007) 13 SCC 293 , the Supreme Court held as under: "21. The Appellants' father was, therefore, entitled to raise all the contentions in regard to non-production of books of accounts and other maters. It was also permissible for him to examine witnesses in support of his case before the Commissioner. It may be true that any order passed can be questioned in the grounds taken in the appeal against the final orders, but such interlocutory orders are required to be challenged. Nothing has been shown before us that such interlocutory orders and particularly those which are referred to hereinbefore had specifically been challenged in the Memorandum of Appeal but the said interlocutory orders were not subjected to revision. What is essential is that they should not have been appealed against. If a revision has been filed which is a part of the appellate jurisdiction, although stricto sensu, doctrine of merger may not apply but Section 105 of the Code of Civil Procedure also would not apply in such cases. Each of those orders attained finality. It has been held in Shankar Ramchandra Abhyankar Vs. If a revision has been filed which is a part of the appellate jurisdiction, although stricto sensu, doctrine of merger may not apply but Section 105 of the Code of Civil Procedure also would not apply in such cases. Each of those orders attained finality. It has been held in Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat : AIR 1970 SC 1 , that civil revision is a part of appellate jurisdiction." 17. Division Bench of the Madhya Pradesh High Court in case of Babulal Verma Vs. Bhagwatinand Guru, 1983 M.P. Weekly Notes 229, has held that once the order of the trial Court striking out the defence under Section 13(6) of the Accommodation Control Act has been challenged in revision and revision having been dismissed, the order striking out the defence cannot be agitated in appeal and observed as under:- "This being the order of the Court between the parties finally determining the question of arrears of rent, the argument raised in the appeal now has no merit whatsoever. We, therefore, uphold the finding of the Court below about the agreed rent. We also hold that in view of the order of the trial Court and the revisional order of this Court with regard to the orders passed under Section 13 of the Act, the ground of non-compliance with Section 13(2) for fixing a reasonable provisional rent is no more available to the appellant." 18. In case of Shyamacharan Raghubar Prasad Vs. Sheojee Bhai Jairam Chattri and another AIR 1964 M.P. 228, the Madhya Pradesh High Court has held that an interlocutory order is final as regards the Court making that order. The order passed by the High Court in revision was final as regards that Court, and its correctness could not be challenged in appeal before the High Court. Para - 14 of the report reads as under: 14. In support of his submission that it was open to this Court by virtue of Section 105 C.P.C. to consider in this appeal the correctness of Bhargava J.'s order, dated 26th October 1962, in C. R. No. 385 of 1962, learned Advocate General relied on Pichu Ayyangar v. Ramanuja, AIR 1940 Mad 756 : ILR (1940) Mad 901. In support of his submission that it was open to this Court by virtue of Section 105 C.P.C. to consider in this appeal the correctness of Bhargava J.'s order, dated 26th October 1962, in C. R. No. 385 of 1962, learned Advocate General relied on Pichu Ayyangar v. Ramanuja, AIR 1940 Mad 756 : ILR (1940) Mad 901. In that case, in a suit filed in the Court of the District Judge, Tinnevelly, with the object of obtaining the settlement of a scheme under the Madras Hindu Religious Endowments Act, 1927, the defendant's objection that the court had no power to frame a scheme was overruled by the District Judge. Thereupon, the defendant applied to the Madras High Court to reverse the order of the District Judge in exercise of its revisional powers. Venkataramana Rao J., who heard the revision petition, decided that the District Judge had erred in holding that the suit lay. He made an order allowing the revision petition and dismissing the suit. When the order of the Madras High Court was communicated to the District Judge, he passed a formal decree dismissing the suit- The plaintiff filed an appeal in the Madras High Court against the decree passed by the District Judge. In that appeal, the defendant raised the objection that the order of Venkataramana Rao J., passed in the revision petition was final and, therefore, the appeal was not competent. The learned Judges of the Madras High Court overruled this objection and held that the order of Venkataramana Rao J. was an interlocutory order and that it was open to the High Court by virtue of Section 105 C.P.C. to consider its correctness in the appeal from the final decree. This decision no doubt supports the appellant's contention that the correctness of the order passed by Bhargava J., on 26th October 1962, can be considered in this appeal. This decision no doubt supports the appellant's contention that the correctness of the order passed by Bhargava J., on 26th October 1962, can be considered in this appeal. But with all respects to the learned Judges of the Madras High Court, it seems to us that when Venkataramana Rao J., disposed of the revision petition before him by dismissing the plaintiff's suit that order was final as regards the Madras High Court irrespective of the question whether that order was or was not appropriate or correct under Section 115 C.P.C. Section 105 no doubt provides that "where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal". This provision only postpones the challenge to an interlocutory order till an appeal is preferred from the final decree. But the challenge must be in an appeal from the final decree filed not in the court making the interlocutory order attacked, but in the appeal ultimately taken to the higher court, from the final decree. This follows from all that has been said by the Supreme Court in the case of Satyadhyan AIR 1960 SC 941 . In our opinion, the correctness of the order passed by Bhargava J., on 26th October 1962 in C. R. No. 385 of 1962 can-not be challenged in this appeal. But, as we have stated earlier, in view of the remand order made in this appeal on 30th November 1962, the matter assumes a new aspect and the question of the finality of the order of Bhargava J., is no longer important or crucial. 19. Thus, it is held that defendant/tenant is not entitled to challenge the correctness of order dated 15/07/2011 in this Second Appeal under Section 100 of CPC, as the same has become final on account of challenge made to that order, which remained unsuccessful by the order of this Court. 20. This brings me to the next substantial question of law proposed by Mr. Agrawal that the bonafide need of the plaintiffs' and his grandson has not been established, as the grandson is not the family member of plaintiffs'. 20. This brings me to the next substantial question of law proposed by Mr. Agrawal that the bonafide need of the plaintiffs' and his grandson has not been established, as the grandson is not the family member of plaintiffs'. Two Courts below have concurrently found that the bonafide need of plaintiffs' are established and they are entitled for decree of eviction on their bonafide need, as this ground was not raised specifically by the defendant before the two Courts below. 21. It is well settled and tried law that question relating to bonafide requirement of the appellant is essentially a question of fact and does not give rise to substantial question of law particularly when there is concurrent finding of fact. In case of Ram Prasad Rajak Vs. Nand Kumar & Bros. & Another, JT 1998(5) SC 540, the Supreme Court in Para-8 held as under:- "8. That apart, on merits, the only other question relates to the bona fide requirement of the appellant that does not give rise to any substantial question of law. It is entirely a matter to be decided on an appreciation of the evidence. On a perusal of the judgment of the High Court it is evident that it had interfered with a finding of fact arrived at by the Second Additional District Judge, Giridih in the first appeal on an appreciation of the evidence. The High Court made an attempt to re-appreciate the evidence and come to the conclusion that the appellant failed to prove his bona fide requirement. In fact after a scanty discussion of the evidence, the High Court observed, "in this view of the matter I find and hold that the plaintiff miserably failed on factual aspect also to prove his bona fide necessity." The High Court has acted beyond its jurisdiction in appreciating the evidence on record." 22. Keeping in view, the ratio of law laid down by the Supreme Court in the aforesaid case, the concurrent finding of fact recorded by both the Courts below is based on evidence and there is no perversity, no substantial question of law is involved in this appeal. 23. Consequently, the instant appeal deserves to and accordingly dismissed at the admission stage itself. Appeal Dismissed.