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2019 DIGILAW 399 (HP)

Rajesh Kumar v. Rotary Eye Foundation Palampur

2019-04-09

TARLOK SINGH CHAUHAN

body2019
JUDGMENT Tarlok Singh Chauhan, J. - Cmp(M) No. 1356 of 2018. By medium of this application, the applicant/appellant has sought condonation of 5 months and 19 days'' delay in filing of the appeal. For the reasons stated in the application, which is otherwise duly supported by an affidavit of the applicant/appellant, the aforesaid delay is condoned. Application stands disposed of. RSA No.141 of 2019. 2. Appeal be registered. 3. With the consent of learned counsel for the parties, the appeal is taken up for final hearing. 4. Defendant is the appellant, who after having lost in both the learned Courts below, has filed the instant regular second appeal. 5. The parties hereinafter shall be referred to as the ''plaintiff'' and the ''defendant''. 6. Brief facts giving rise to the filing of the present appeal are that the plaintiff filed a suit for possession by way of eviction of defendant from Shop No. 46, located in ''Rotary Eye Hospital Complex, Maranda (Banghiar), Tehsil Palampur, comprised of Khata No. 145, Khatauni No. 259, Khasra Nos. 170 and 171, measuring 0-31-36 hectares, situated at Mohal and Mauza, Banghiar Maranda (hereinafter referred to as the ''demised premises'') as per the site plan attached and for recovery of Rs.3630/- as arrears of rent for the period with effect from 1.6.2010 to 30.04.2011. 7. It was averred that the plaintiff is a society registered under the Societies Act, 1860 and owner of the demised premises which are now required for the plaintiff''s own use for extension of underground parking to meet the day-to-day requirement. Notice under Section 106 of the Transfer of Property Act was served upon the defendant on 06.04.2011 and the tenancy stood terminated with effect from the midnight of 30.04.2011, yet the defendant did not hand over the vacant possession of the demises premises. It was further averred that the defendant has also not paid the rent with effect from 01.06.2010 onwards, hence, the suit. 8. The defendant resisted the suit by filing written statement wherein preliminary objections that the suit is not maintainable, plaintiff having no cause of action, no notice under Section 106 of the Transfer of Property Act being served, suit being not filed by the competent authority, estoppel and locus-standi etc., were taken. 8. The defendant resisted the suit by filing written statement wherein preliminary objections that the suit is not maintainable, plaintiff having no cause of action, no notice under Section 106 of the Transfer of Property Act being served, suit being not filed by the competent authority, estoppel and locus-standi etc., were taken. However, none of these objections were reiterated in the written statement on merits wherein it was only averred that Shri D.R.Rana was not competent to file the suit as the resolution was not sufficient for making him eligible to file the suit. It was denied that the tenancy was on monthly basis and it was further contended that it was agreed between the parties that the tenancy of the demised premises will continue till plaintiff''s hospital functions. It was further averred that the suit had been filed only to harass the defendant as the underground parking was already complete. As regards the rent, it was also averred that the defendant was regularly paying the rent and had sent a cheque of Rs.1,500/- dated 12.10.2010, however, the same was refused and returned back to him. Receipt of notice was also denied and accordingly prayed that the suit be dismissed. 9. The parties were put to trial on the following issues:- "1. Whether tenancy of the defendant has duly been terminated by issuing notice u/s 106 of the Transfer of Property Act? OPP. 2. Whether defendant is in arrears of rent amounting to Rs.3630/- with effect from 01.06.2010 to 30.04.2011? OPP. 3. Whether plaintiff is estopped from filing the present suit by his own act and conduct? OPD. 4. Whether plaintiff has no locus standi to file the present suit? OPD. 5. Relief." 10. After recording evidence and evaluating the same, the learned trial Court vide its judgment and decree dated 02.12.2015 decreed the suit filed by the plaintiff and the appeal preferred against the said judgment and decree also came to be dismissed by the learned first appellate Court on 30.12.2017, constraining the defendant to file the instant appeal. 11. 5. Relief." 10. After recording evidence and evaluating the same, the learned trial Court vide its judgment and decree dated 02.12.2015 decreed the suit filed by the plaintiff and the appeal preferred against the said judgment and decree also came to be dismissed by the learned first appellate Court on 30.12.2017, constraining the defendant to file the instant appeal. 11. It is vehemently contended by Shri Vinay Sharma, learned counsel for the appellant that the findings recorded by the learned Courts below are liable to be set aside as they have failed to take into consideration the fact that the landlord earlier in the year 2010 had served a notice on the defendant under Section 106 of the Transfer of Property Act calling upon him to vacate the demised premises. However, no proceedings were thereafter initiated by the landlord and, therefore, the second notice on the same subject matter was not competent and, therefore, could not have formed the basis of eviction of the defendant. 12. On the other hand, Shri Dushyant Dadwal, learned counsel for the respondent/plaintiff would argue that the ground being urged before this Court is not available to the defendant as this was not his pleaded case. 13. I have heard the learned counsel for the parties and have gone through the records of the case. 14. In order to appreciate the contention of the defendant, it would be necessary to find out as to whether the defence as is now being put-forth before this Court was raised before the Courts below. Evidently, no such defence was raised before the Courts below. Rather, there is no mention of any notice, save and except, the notice which forms the subject-matter of the instant lis and which pertains to the year 2011 and not to the year 2010. Not only this, even in the grounds of appeal preferred before the learned first appellate Court, the issue regarding earlier notice of the year 2010 has not been raised. However, the matter does not end here. Even in the grounds of appeal raised before this Court, the defendant has not raised any such ground and, therefore, it can conveniently be held that what was being argued before the Court by the learned counsel for the defendant was in the air. 15. However, the matter does not end here. Even in the grounds of appeal raised before this Court, the defendant has not raised any such ground and, therefore, it can conveniently be held that what was being argued before the Court by the learned counsel for the defendant was in the air. 15. It has come on record that notice under Section 106 was duly served upon the defendant and it has also come on record that the tenancy was from month to month basis. 16. It is more than settled that notice to quit under Section 106 is a technical rule which should not be construed in a pedantic and impractical way so as to pick holes and find faults with the notice. The aim of the interpretation should be only to ascertain whether the person receiving the notice has understood the same. A liberal construction was only to do practical justice to the cause. Once, the notice is duly served, then the consequences have obviously to follow. 17. Apart from the above, it would be noticed that the defendant in this case has not led any oral evidence in support of his case and he only tendered certain documents like cheque Ex.DZ, registered AD Ex. DX, legal notice Ex. DY and copy of order Ex. DZ1 which according to both the learned Courts below have no bearing on the merits of the case. 18. Having failed to appear in the witness box, obviously, an adverse inference has to be drawn against the defendant as it is more than settled that with-holding of a party/defendant himself from witness box thereby denying the plaintiff an opportunity for cross examination of himself results in an adverse inference to be drawn against him (Refer: Ishwar Bhai C. Patel alias Bachu Bhai Patel versus Harihar Behera and another , (1999) 3 SCC 457 ). Similar reiteration of law can be found in Vidhyadhar versus Manikrao and another , (1999) 3 SCC 573 . 19. Lastly, it would be noticed that the grounds of appeal filed before this Court are very stereo-type and virtually only two- three questions have been raised in the grounds of appeal which read thus:- "1. That the appellant/defendant was not given ample opportunities as per law to lead his evidence by stepping into the witness box. 2. 19. Lastly, it would be noticed that the grounds of appeal filed before this Court are very stereo-type and virtually only two- three questions have been raised in the grounds of appeal which read thus:- "1. That the appellant/defendant was not given ample opportunities as per law to lead his evidence by stepping into the witness box. 2. That the issue of termination of tenancy has been wrongly adjudicated as the fact of rent agreement has been established from the pleadings and evidence on record but the same fact has been over sighted by both the court below. 3. That the 1st Appellate Court has miserably failed to adjudicate the other issues which were raised in the suit." 20. It is otherwise more than settled that the appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law. Meaning thereby, the pure findings of fact remain immune from challenge before this Court in second appeal. It shall be apt to refer to three Judges Bench decision of the Hon''ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs , (2001) 3 SCC 179 wherein it was observed as follows: "15......The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one." 21. What would be the substantial question of law was thereafter considered in para 12 of the judgment, which reads thus: "12. The phrase ''substantial question of law'', as occurring in the amended Section 100 is not defined in the Code. 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. The phrase ''substantial question of law'', as occurring in the amended Section 100 is not defined in the Code. 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 or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta , (1928) AIR PC 172, the phrase "''substantial question of law" as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd. , (1962) Supp3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju , (1952) ILR(Mad) 264:- "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. Noony Veeraju , (1952) ILR(Mad) 264:- "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law." and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:- "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 22. Finally, in paragraph 14, the Hon''ble Supreme Court laid down the guidelines on the test of as to what is the substantial question of law, which reads thus: "14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." 23. The findings recorded by the learned Courts below are based on the correct appreciation of the pleadings and evidence and are pure findings of fact which are immune from challenge in second appeal. 24. No question of law much less substantial question of law arises for consideration in this appeal. 25. Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.