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2022 DIGILAW 1354 (RAJ)

Satish Chandra Mangal v. Ram Kishore Dubey

2022-04-28

SUDESH BANSAL

body2022
JUDGMENT 1. Appellant-tenant has filed this second appeal assailing the judgment and decree dated 19.09.1997 passed in civil first appeal No.16/96 by the Court of Additional District Judge No.2, Jaipur City, Jaipur, affirming the judgment and decree for eviction dated 12.12.1995 passed in Civil Suit No.1324/89 by the Court of Additional Civil Judge (Junior Division) No.3, Jaipur City, Jaipur titled as Ram Kishore Dube & Ors Vs. Satish Chand Mangal. 2. The relevant facts as culled out from the record are that the appellant is tenant in shop in question since 16.06.1970 at the rate of Rs.50/- per month. The tenancy of appellant is not in dispute. Respondents instituted a civil suit for eviction invoking the provision of Section 13(1)(J) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred as 'the Act of 1950') on 03.01.1989. The provision of Section 3(1)(J) of the Act of 1950 envisages that if rented premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of suit, in that situation, the landlord is entitled to evict the tenant. Respondents specifically averred in the plaint that the appellant is not using the shop in question and the same is laying closed without any reasonable cause more than 5-7 years and specifically for six months continuously, just preceding to the date of filing of the suit. Appellant submitted his written statement and contended that he is using rented shop for the purpose of running a business of electric decoration in marriage functions and his articles are laying in the rented shop. 3. According to the rival pleadings of parties, contentious issues were framed and evidence was recorded. Both parties adduced their evidence. 4. The trial court, on appreciation of pleadings and evidence of both parties, after examining the statements of PW-1, PW-2 and PW-3 as also taking into account the statement of DW-1, concluded that plaintiff has prima facie proved that the rented shop was not being used for the purpose it was let out and the same is laying closed for continuous period of six months prior to filing of the suit. In that situation, the onus shifts on defendant to show that the shop was being used for running the business, however, it was observed that defendant has not produced any document either of electricity bills or bookings for the marriage programmes or to show any other evidence about using the rented shop or running the business of electric decoration therein. Even the defendant remained failed to produce any other independent witnesses to rebut the plaintiff's evidence. On consideration of such evidence, the trial court recorded fact findings that the shop is not being used for any business purpose and passed the decree for eviction on the ground enshrined under Section 13(1)(J) of the Act of 1950 vide judgment dated 12.12.1995. The judgment of trial court also reveals that the relevant case law on this issue was also considered more particularly the judgment of the High Court in case of Gauri Lal Vs. Gurjar mal [ (1992) 1 RLR 75 ]. 5. Appellant-tenant challenged the decree for eviction dated 12.12.1995 by filing the first appeal. The first appellate court re- heard the matter as a whole and on re-appreciation of evidence, concurred with the findings of the trial court and affirming the decree for eviction. The first appellate court has categorically observed that the plaintiff has prima facie proved by his evidence that the shop in question is laying closed continuously for a period of six months prior to filing of the suit but the defendant has not rebutted such evidence and has not able to produce any documentary evidence. The first appellate court also considered the issue raised by and on behalf of appellant-defendant that since the suit was not filed immediately on expiry of six months, the issue of non-user should be treated as waiver. Such issue was turned down for the reason that no such objection was raised in the written statement and no such evidence was adduced by the defendant. Accordingly the first appeal was dismissed vide judgment dated 19.09.1997 affirming the decree for eviction. Hence against the concurrent findings this second appeal has been preferred. 6. At the time of admission, the second appeal was admitted on following substantial questions of law:- 1. Whether the appellant-defendant has not been in occupation and use of the disputed shop premises for a continuous period of 6 months prior to the institution of the suit in the trial court? 6. At the time of admission, the second appeal was admitted on following substantial questions of law:- 1. Whether the appellant-defendant has not been in occupation and use of the disputed shop premises for a continuous period of 6 months prior to the institution of the suit in the trial court? 2. Whether the appellant-defendant was in continuous possession ever since the tenancy from 16.6.1970? 7. Having heard learned counsel for both parties and on perusal of impugned judgments and record, this Court finds that findings of fact regarding non-user of the rented shop as recorded by both courts below are based on due appreciation/re-appreciation of evidence. The issue of non-user of the rented shop is essentially based on appreciation of evidence and is purely a question of fact. The substantial questions of law referred hereinabove, cannot be treated as questions of law much less the substantial questions of law. These questions require re-appreciation of evidence as a whole to draw a fresh conclusion by this Court. These questions are essentially questions of fact based on appreciation of evidence, hence cannot be treated as substantial questions of law. 8. It is a trite law that while exercising the powers of the High Court under Section 100 CPC, re-appreciation of evidence to draw a different conclusion than by courts below is impermissible. The fact findings are within the province of the trial court and first appellate court unless and until the same do not suffer from any perversity/jurisdictional error, misreading/non-reading of evidence, is not required to be interfered with. 9. Hon'ble the Supreme Court in case of Umerkhan Vs. Bismillabi [ (2011) 9 SCC 684 ] has observed that if a second appeal admitted on substantial question of law, while hearing second appeal finally, can re-frame substantial question of law or can frame substantial question of law afresh or even can hold that no substantial question of law involved, but the High Court cannot exercise its jurisdiction of Section 100 CPC without formulating substantial question of law. Further in case of Damodar Lal Vs. Sohan Devi [ (2016) 3 SCC 78 ] the Apex Court held that even if finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. Further in case of Damodar Lal Vs. Sohan Devi [ (2016) 3 SCC 78 ] the Apex Court held that even if finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. The 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. Otherwise also Hon'ble the Supreme Court in case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gurjar [ (1999) 3 SCC 722 ] has observed that the concurrent findings of facts even if erroneous cannot be disturbed by the High Court in exercise of the powers under Section 100 CPC. This proposition is well established. Findings of fact based on appreciation of evidence are province of the trial court and the first appellate court. 10. On consideration of the factual and legal aspect of the present appeal, this Court finds the same is devoid of merits and is liable to be dismissed and is hereby dismissed. 11. All other pending application(s), if any, also stand(s) disposed of. 12. However, appellant-tenant is having possession of rented shop since 16.06.1970, three months time is granted to vacate and hand over the peaceful possession to respondent-landlord, subject to payment of due arrears of rent as mesne profits.