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2017 DIGILAW 873 (JHR)

Rajesh Kumar v. Sanjay Kumar Agarwal

2017-05-17

AMITAV K.GUPTA

body2017
ORDER : The appellant/defendant has preferred this Second Appeal against the concurrent findings of fact by the trial court and the first appellate court holding the tenant (i.e. appellant herein) is liable to be evicted from the suit premises under Section 11 (i)(1c) and (f) of the Bihar (Rent Control and Eviction) Act, 1982 now Jharkhand Building Control Act. 2. Brief facts of the case is that the plaintiff instituted the suit claiming himself to be the owner/landlord of the suit premises. It is stated that the suit premises was let out to the defendant/tenant (appellant in the present appeal) on a monthly rental of Rs. 2,700/- for a period of 5 years on the basis of the rent agreement dated 1.7.2002. It is averred that the defendant/tenant had defaulted in payment of rent. That the plaintiff required the suit property for his own need. It is stated that the period of tenancy had expired in 2007 and default in payment of rent took place in 2007. 3. The defendant/appellant resisted the claim and alleged that the plaintiff had taken an advance of Rs. 36,000/-, therefore the question of default in payment of rent did not arise. The defendant claimed that the plaintiff had various other similarly situated space which were lying unutilised by the plaintiff hence the requirement of suit premises for personal use was frivolous. It is denied that the lease period has expired. 4. The trial court framed as many as seven (7) issues. On the basis of the evidence adduced, it recorded the finding that the defendant was liable to be evicted on the ground of expiry of lease and default in payment of rent. However, the trial court allowed the adjustment of Rs. 36,000/- paid as advance by the defendant and held that the plaintiff has not been able to establish that the suit premises was required for personal need. 5. Being aggrieved by the judgment and decree of the trial court the defendant/appellant preferred Title Appeal No. 31 of 2014. The first appellate court formulated the points for determination. It dismissed the appeal and set aside the order of the trial court regarding adjustment of Rs. 36,000/- towards the arrears of rent. 6. 5. Being aggrieved by the judgment and decree of the trial court the defendant/appellant preferred Title Appeal No. 31 of 2014. The first appellate court formulated the points for determination. It dismissed the appeal and set aside the order of the trial court regarding adjustment of Rs. 36,000/- towards the arrears of rent. 6. Learned counsel for the appellant has placed reliance on (2003)9 SCC 606 , and submitted that the Hon'ble Apex Court has held that the appellant cannot be reduced to a position worse than if he had not appealed. Reliance is also placed on (1987)4 SCC 546 , as well as on (1986)2 SCC 378 and submitted that setting aside of order of the trial with respect to adjustment of Rs. 36,000/- by the first appellate court is hit by the principle of res-judicata. It is argued that finding of the first appellate court on the said issue gives rise to substantial question of law. 7. Learned counsel appearing for the plaintiff/landlord/respondent has contended that the judgment and decree of the first appellate court does not suffer from any illegality and no substantial question of law is made out. It is argued that the trial court had not appreciated the fact that for non-compliance of the order passed under Section 15 of the Building Act, the defence of the defendant qua tenant was struck off therefore he was relegated to a position as if he had not defended the suit. On the aforesaid ground it is argued that the appeal is fit to be dismissed. 8. Heard. Perused the record. At the outset, it is important to mention that if the defence of the defendant is struck off for non-compliance of order passed under Section 15 of the Act, then the defendant is relegated to the position as if he had not contested the suit of the plaintiff hence all defence qua tenant lapses. The entire plea of the appellant/defendant in this appeal is not independent of his status as that of a tenant. Hence, the first appellate court did not commit any error in law or fact in setting aside the finding of adjustment of Rs. 36,000/- of the trial court and in affirming the decree of eviction of the appellant/defendant. The entire plea of the appellant/defendant in this appeal is not independent of his status as that of a tenant. Hence, the first appellate court did not commit any error in law or fact in setting aside the finding of adjustment of Rs. 36,000/- of the trial court and in affirming the decree of eviction of the appellant/defendant. In this context it is necessary to state that it is settled legal position that in exercise of jurisdiction under Section 100 C.P.C., when the issues are purely factual in nature and there is concurrent finding of fact, the High Court should not interfere when no perversity or arbitrariness is brought forth in the findings. In the case of Hero Vinoth vs. Seshammal; (2006)5 SCC 545 Hon'ble Supreme Court has observed in para 19 as under:- "19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence." 9. The plea raised by the appellants are merely grounds and do not constitute or give rise to any substantial question of law accordingly, this second appeal stands dismissed as being devoid of merit.