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2017 DIGILAW 1310 (HP)

Mohammad Kamil @ Mohammad Kamir v. Brij Bala

2017-11-28

TARLOK SINGH CHAUHAN

body2017
JUDGMENT Tarlok Singh Chauhan, J. The defendant is the appellant, who aggrieved by the judgment and decree dated 13.7.2017 passed by the Additional District Judge-1, Kangra at Dharamshala whereby he set aside the judgment and decree dated 27.7.2016 passed by the trial court, has filed the present Regular Second Appeal by invoking the provisions of section 100 of the Code of Civil Procedure. The parties shall be referred to as the plaintiffs and defendant. 2. The plaintiffs filed a suit for permanent prohibitory injunction against the defendant on the allegation that the suit land was initially in the ownership of the Punjab Wakf Board and the vacant area of 10 square yards of the suit land had been rented by it to plaintiff No. 1 on monthly rent of Rs. 80/- with effect from 1.3.1991. Thereafter, plaintiff No. 1 sought permission from the Punjab Wakf Board and after such permission had been granted, constructed a shop over the suit land. The shop was later allotted Municipal No. 173 by the Municipal Council and is located in Ward No. 6. Plaintiff No. 1 rented out the shop to plaintiffs No. 2 and 3, who are jointly running the business of selling stationery and sports material. 3. On 1.1.2003, Punjab Wakf Board filed a Petition No. 2-D/2003, under section 14 of the H.P. Urban Rent Control Act, before the Wakf Tribunal, Kangra at Dharamshala seeking eviction of the plaintiffs on various grounds. During the pendency of the suit, Punjab Wakf Board came to be dissolved and Himachal Wakf Board came to be constituted for the territory of Himachal and was substituted in place of Punjab Wakf Board. The aforesaid petition came to be dismissed on 25.10.2007 on the ground that the Wakf Tribunal had no jurisdiction to entertain the petition. 4. However, the defendant Imam of Jama Masjid, Kotwali Bazar, Dharamshala with the help of his friends and followers started interfering in the possession of the plaintiffs by removing Bardana and other articles of the plaintiffs placed on the roof of shop. The defendant and his accomplices also damaged the slab of the shop by trying to break the lintel and cause leakage in order to dissuade them from doing business there. The plaintiffs requested the defendant to desist from such acts and admit the claim of the plaintiffs, but in vain, thus, compelling the plaintiffs to institute the present suit. 5. The defendant and his accomplices also damaged the slab of the shop by trying to break the lintel and cause leakage in order to dissuade them from doing business there. The plaintiffs requested the defendant to desist from such acts and admit the claim of the plaintiffs, but in vain, thus, compelling the plaintiffs to institute the present suit. 5. The defendant filed written statement taking therein various preliminary objections like locus standi, cause of action, maintainability, non-joinder and mis-joinder of necessary parties and estoppel. On merits, it is stated that the shop in question had been constructed by plaintiff No. 1 on the plot owned and possessed by the Punjab Wakf Board, which became Himachal Wakf Board and vide permission granted on 1.3.1991, the tenancy commenced with regard to the shop w.e.f. 1.3.1991 on monthly rent of Rs. 80/-. It was averred that the shop was rented to plaintiff No. 1. Since the disputed shop adjoined the compound of the Masjid known as "Jama Masjid" belonging to Muslim community, the same was used to perform prayer known as ''Namaz'' by the people. The defendant on his own has no authority to refrain them from doing so as the prayers of the Muslim community are done by them as a whole. However, in the same breath, the defendant would submit that he had not been causing any interference with the usage of the shop by plaintiff No. 1. 6. In the replication filed by the plaintiffs, the averments contained in the plaint were reiterated and controverted the stand of defendants as taken in written statement. 7. On 6.10.2010, learned trial court framed the following issues:- 1. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction against the defendant, as prayed for? OPP. 2. Whether the plaintiffs have no locus standi and cause of action to sue? OPD 3. Whether the suit is bad for non-joinder and misjoinder of necessary parties? OPD 4. Whether the suit is bad for compliance of provision under order 1 Rule 8 CPC, as alleged? OPD 5. Whether the plaintiffs are estopped by their, act, conduct, acquiescence and silence from filing the present suit OPD 6. Whether the shop in dispute was rented out to plaintiffs No. 1 @ Rs. 80/- per month w.e.f. 1.3.1991 by the HP Wakf Board, as alleged? OPD 7. Relief. 8. OPD 5. Whether the plaintiffs are estopped by their, act, conduct, acquiescence and silence from filing the present suit OPD 6. Whether the shop in dispute was rented out to plaintiffs No. 1 @ Rs. 80/- per month w.e.f. 1.3.1991 by the HP Wakf Board, as alleged? OPD 7. Relief. 8. Learned trial court after recording the evidence and evaluating the same, dismissed the suit on the ground that the plaintiff had not placed on records anything which show that any damage to shop or lintel has been caused by the defendant. However, on an appeal being carried to the first appellate court, such judgment and decree came to be reversed and consequently the suit as filed came to be decreed. It is against the judgment and decree of the first appellate court that the defendant has filed the instant appeal on the ground that the judgment and decree passed by the first appellate court are perverse. 9. I have heard the learned counsel for the parties and have perused the material placed on record. 10. What is ''perverse'' was considered by the Hon''ble Supreme Court in a detailed judgment in Arulvelu and another v. State Represented by the Public Prosecutor and another, (2009) 10 SCC 206 wherein it was held as under:- "26. In M.S. Narayanagouda v. Girijamma & Another, AIR 1977 Karnataka 58 , the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814 , the Court defined ''perverse'' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc. 27. The expression "perverse" has been defined by various dictionaries in the following manner: 1. Oxford Advanced Learner''s Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable. 2. Long man Dictionary of Contemporary English - International Edition PERVERSE: Deliberately departing from what is normal and reasonable. 3. Oxford Advanced Learner''s Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable. 2. Long man Dictionary of Contemporary English - International Edition PERVERSE: Deliberately departing from what is normal and reasonable. 3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. 4. New Webster''s Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behaviour or opinion; wicked or wayward; stubborn; cross or petulant. 5. Stroud''s Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. 28. In Shailendra Pratap & Another v. State of U.P., (2003) 1 SCC 761 , the Court observed thus: (SCC p.766, para 8 "8... We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity." 29. In Kuldeep Singh v. The Commissioner of Police & Others, (1999) 2 SCC 10 , the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny. 10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. 10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with." 30. The meaning of ''perverse'' has been examined in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others, 1992 Supp (2) SCC 312 , this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law." 11. What is ''perverse'' has further been considered by this Court in RSA No. 436 of 2000, titled ''Rubi Sood and another v. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:- "25..... What is ''perverse'' has further been considered by this Court in RSA No. 436 of 2000, titled ''Rubi Sood and another v. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:- "25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law. 26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. 27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse. 28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated." 12. What is ''perversity'' recently came up for consideration before the Hon''ble Supreme Court in Damodar Lal v. Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:- "8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse. 9. In Krishnan v. Backiam, (2007) 12 SCC 190 , it has been held at paragraph-11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under section 96 CPC is the last court of facts. 9. In Krishnan v. Backiam, (2007) 12 SCC 190 , it has been held at paragraph-11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under section 96 CPC is the last court of facts. The High Court in second appeal under section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect." 10. In Gurvachan Kaur v. Salikram, (2010) 15 SCC 530 , at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent." 11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes. 12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining P.Ws-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man''s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity. 13. In Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262 , this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp. 278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. To quote para 34: (SCC pp. 278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication-what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below: '' 103. Power of High Court to determine issues of fact. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,- (a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100." The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with." 14. In S.R. Tiwari v. Union of India, (2013) 6 SCC 602 , after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635 , it was held at para 30: (S.R. Tewari case, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [ (1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805 ] , Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677 , Gamini Bala Koteswara Rao v. State of A.P., (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589 and Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)" This Court has also dealt with other aspects of perversity. 15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court." 13. Thus, it can be taken to be settled that a judgment can be said to be perverse if the conclusions arrived at by the learned Courts below are contrary in evidence on record, or if the Court''s entire approach with respect to dealing with the evidence or the pleadings is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on erroneous understanding of law and of the facts of the case. A perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Therefore, unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration, the findings cannot be said to be perverse. 14. Adverting to the facts, it would be noticed that the defendant has not specifically laid any individual claim qua the shop in question, but at the same time would claim that he along with his community members had been offering prayers on the lintel of the shop. Thus, in these given circumstances vital aspect of the case appears to have been totally ignored by the learned trial court, who for some strange reason refused to grant injunction only because she did not find any material on record that would show that damage to the shop or lintel had in fact been caused. The reason obviously is flawed and, therefore, cannot be countenanced as the court was not to wait for the actual damage and even the mere apprehension for the same would have been reason enough to grant injunction. The reason obviously is flawed and, therefore, cannot be countenanced as the court was not to wait for the actual damage and even the mere apprehension for the same would have been reason enough to grant injunction. The question assumes importance, particularly, because even though as observed earlier the defendant himself has not set up any right, title or claim to the property in dispute, but he cannot under the garb or under the pretext that he cannot stop his community members from offering prayers on the lintel actually interfere with the possession of the respondents by climbing up on the lintel of shop to offer prayers. It is not the finding of the first appellate court that could be termed to be perverse, rather it is the judgment and decree rendered by the trial court, which is absolutely perverse and cannot, therefore withstand the judicial scrutiny. 15. In view of the aforesaid discussion, I find no merit in this appeal and the same is consequently dismissed leaving the parties to bear their own costs.