Gujarat High Court
Sureshbhai Kalubhai Patel vs Pankajbhai Bhupatbhai Shah on 9 May, 2025
NEUTRAL CITATION
C/SA/495/2024 CAV ORDER DATED: 09/05/2025
undefined
Reserved On : -05.05.2025
Pronounced On : 09/05/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 495 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 495 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
==========================================================
Approved for Reporting Yes No
✔
========================================================== SURESHBHAI KALUBHAI PATEL & ORS.
Versus PANKAJBHAI BHUPATBHAI SHAH & ORS.
========================================================== Appearance:
MR NIRAD D BUCH(4000) for the Appellant(s) No. 1,2,3 MRS. BHAVINI N. BUCH(5403) for the Appellant(s) No. 1,2,3 MR HENIL M SHAH(10677) for the Respondent(s) No. 1,2 ========================================================== CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER CAV ORDER
1. The present Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 (for short "the Code") being aggrieved by the judgment and decree passed dated 15.07.2024, passed by Principal District Judge, Bhavnagar. dismissing the Regular Civil Appeal No.24 of 2018 and confirming the judgment Page 1 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined and decree passed by, 2nd Additional Civil Judge, Bhavnagar in Regular Civil Suit No.543 of 1999.
2. For the sake of brevity and convenience, the parties are referred to as plaintiff and the defendant.
3. The brief facts arising out of the present second appeal is that the plaintiff is the owner of the suit premises, and it is the case of the plaintiff, that late Manilal Damodardas in his personal capacity was the tenant of the suit premises and that deceased Manilal had no child and the wife of late Manilal was not doing business with late Manilal Damodardas at the time of his death.
4. The plaintiff filed a suit on the ground that after the death of late Manilal and the death of his wife Shantaben, the suit property was not used and was kept locked and when the plaintiff visited the suit property, the plaintiff came to know that the defendants are doing business in the suit premises and therefore, the plaintiff filed a suit for recovery of possession from the defendants on the ground that the defendants are trespasser in the property and that the defendants have no right, title, interest to occupy the premises and Page 2 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined that the defendants have illegally entered the suit premises and therefore, the said suit was filed for possession of the suit property and claiming mesne profit from the defendants.
5. The defendant appeared in the said suit and filed a written statement that the defendants are not trespassers in the property and that the suit property was taken on rent by a partnership firm.
6. After going through the documentary evidence and oral evidence the trial court framed following issues vide exhibit 21:
"(1) Whether the Plaintiff proves that the Respondent broke open the lock of the suit property, committed illegal trespass and took possession of the suit property and started business thereon?
(2)Whether the Plaintiff proves that there is no relation of owner and tenant between him and the Respondent?
(3)As the Respondent is using the suit property unlawfully, whether the Plaintiff is entitled to recover Rs. 15,000/- for use and occupation from the date of Page 3 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined 01.04.1997 till this suit at the rate of Rs. 500/- for the use?
(4)Whether the Plaintiff proves that he has issued notice dated 03.04/1999 to the Respondent and terminated the tenancy?
(5)Whether the disputed notice is legal?
(6)Whether the Plaintiff is entitled to get the relief as prayed for ?
(7)Whether the suit of the Plaintiff is barred by time limit?
(8)Whether the Respondent proves that he is the tenant of the suit property by paying rent of Rs.
55/-?
(9)Whether the Respondent proves that he is ready and willing to pay the rent?
(10) Whether the Respondent proves that the Plaintiff has preferred the present suit to convert the tenancy rights of the respondent business firm into tenancy rights in his personal name?
(10-A) Whether the applicant is Page 4 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined entitled to get the rent of the rented property fixed as Rs. 35/-
to Rs. 50/-?
(11) What order and decree?
(11-A) What order"
7. It is also required to be considered that the present defendant has also filed Misc. Civil Application no.62 of 1999 for fixation of standard rent. The plaintiff examined himself vide exhibit 57 and the defendant no.1 one had examined himself vide exhibit 161 and after going through the documentary evidence, oral evidence and giving finding on all the issues, the Trial Court held the defendants to be trespassers in the property and held that as the defendants are not tenants in the property, the question of fixing standard rent does not arise and the said Civil Misc. Application was dismissed and the suit for recovery of possession filed by the plaintiff was decreed in favor of the plaintiffs, aggrieved by the said order, the defendants filed Civil Revision Application No.1 of 2018 challenging the order passed in Misc. Civil Application No.62 of 1999 and filed Regular Civil Appeal No.24 of 2018 against the judgment and decree passed in Regular Civil Suit No.543 of 1999 Page 5 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined and after re-appreciating the evidence, the First Appellate Court dismissed the said Civil Revision Application and the First Appeal and the present second appeal has been filed against the judgment and decree passed in First Appeal.
8. Learned advocate for the defendant has mainly submitted that that from the documentary evidence produced in the suit, it can be clearly established that the suit property was given on rent to Patel Manilal Dambodardas, which is a partnership firm and therefore, as the name of the tenant is Patel Manilal Dambodardas the present plaintiffs are taking advantage of the said name and therefore, as the said partnership firm was established on 13.02.1951, which is produced vide exhibit 123 and the partner of the said partnership firm was Manilal Dambodardas Patel, it can be clearly established that the partnership firm was in possession of the property.
9. Learned advocate for the defendant has also tried to canvass his argument on the point that as the plaintiffs have purchased the suit property by registered sale deed in the year 1980, and late Manilal Dambodardas retired from the partnership firm on 08.11.1980, which is produced vide exhibit 168 and after said Manilal Page 6 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined Dambodardas retired on 08.11.1980, new partners were introduced in the said partnership firm which is produced vide exhibit 169.
Moreover, the fact that the tenant of the suit property was a partnership firm can be clearly established from the fact that a notice was given to the wife of original tenant on 24.03.1985, which is produced vide exhibit 87 and a reply to the same legal notice was given by the wife of late Manilal Dambodardas, which is produced vide exhibit 89 and in the said reply also, it has been categorically stated that the partnership firm was a tenant of the suit property and that the suit property was not on rent in the personal name of Manilal Dambodardas.
10. It has also been argued that, if the receipts that are produced vide exhibits 91, 123. 125 are examined, the same is also in the name of Manilal Dambodardas and it has been argued that from the plain reading of the said rent receipts the name of the original tenant is mentioned in the receipt and therefore, it is not the name of the tenant that has been mentioned in the receipt.
11. It has also been argued by the learned advocate for the defendant that the rent receipts that are on record are also after the death of Page 7 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined late Manilal Dambodardas, who has expired on 28.04.1984 and therefore, it has been argued that the plaintiffs were very much aware of the fact that the partnership firm was tenant in the premises. Moreover, it has also been argued that the address of the tenant in the receipts also corroborate with the office address of the partnership firm i.e. Danapit which is the office of the partnership firm and the same can be established by exhibit 170, which is the office premises of the partnership firm and therefore, it has been argued that the plaintiffs were very much aware that the suit property was given on rent to the partnership firm and therefore, as the defendants are the partners of the said partnership firm they cannot be considered as tresspassers of the property and the possession cannot be taken away from the said tenants.
12. It has also been argued that the Trial Court and the Appellate Court could not have decreed the suit as necessary and proper parties were not joined in the said suit proceeding. The learned advocate for defendant has relied on exhibit 90, which clearly says that the suit property other than the plaintiff also belongs to two other parties i.e. Harshaben and Ajwaniben and neither they have been joined nor their legal heirs have been joined in the said suit Page 8 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined proeceedings and therefore also the suit could not have been allowed and a recovery of possession could not have been granted in favour of the plaintiff and against the defendant.
13. Per-contra, the learned advocate for the plaintiff has argued that the defendant in his cross examination has clearly admitted that the suit property was in the individual name of Manilal Damodardas. It has also been argued that there is no evidence to show that the suit property was given on rent to the partnership firm.
14. Moreover, it has also been argued that the documents with respect to the partnership firm were neither produced with the written statement nor were they produced when the plaintiff examined himself by exhibit 57 and the said documents are produced after 17 years. Moreover, the said documents are xerox copies and by an order, the said documents have been exhibited and the said order states that subject to proving the said documents, the said documents have been exhibited and the fact is that, neither the original documents on which the defendant relies with respect to the existence of partnership firm have been produced and therefore, the entire story with respect to partnership firm being a tenant of Page 9 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined the suit property does not arise and is an afterthought.
15. Moreover, it has also been argued that there are concurrent findings of Trial Court and the Appellate Court and the same are after going through the entire record of the proceeding and therefore, the present Second Appeal is required to be rejected.
16. Moreover, it has also been argued that the Trial Court has observed while passing the judgment and decree that the documents on which the defendant relies are false and fabricated documents. The stamp that has been purchased on 31.03.1995 is also after the death of Manilal Damodardas and therefore, the Trial Court and the Appellate Court has rightly held that the said stamp could not have been purchased by Manilal Damodardas.
17. It has also been argued by the learned advocate for the plaintiff that during the lifetime of Manilal Damodardas, he had filed a suit seeking mandatory injunction against the plaintiffs being Regular Civil Suit No.896 of 1981, which is produced vide exhibit 92 and the said suit has been filed before the Senior Civil Judge at Bhavnagar and the said suit has been filed along with other tenant Page 10 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined i.e. Jayantilal and Brothers partnership firm and therefore, in the said suit as late Manilal Damodardas, has himself not stated that the partnership firm is a tenant in the premises and the said suit has been filed in the individual capacity itself shows that the partnership firm was never a partner in the suit premises.
Moreover, it has also been argued that the rent receipt produced vide exhibit 91, 123, 125 and the tax bills all are not in the name of the partnership firm, but are in the individual name of the tenant, who has expired and the present defendants are not the legal heirs and do not fall under the provisions of Section 5(11)(c) of the Bombay Rent Act and therefore, the Trial Court and the Appellate Court have rightly decreed suit in favour of the plaintiff.
18. Moreover, it has also been argued that there are no substantial questions of law involved in the present second appeal and the substantial question of law that has been suggested in the memorandum appeal are all on factual aspect and therefore, the second appeal is required to be dismissed.
19. Learned advocate for the plaintiff has relied on judgments, Sri Gangai Vinayagar Temple Vs. Meenakshi Ammal, 2014 (0) Page 11 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined AIJEL SC 55794, Ram Prakash Vs. Charan Kaur, 1997 (0) AIJEL SC 23744, Bai Chanchal Widow of Chhaganbhai Jibhai Vs. Bai Suraj Widow of Ranchhodbhai Chhaganbhai, 1962 (0) AIJEL HC 215941, Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar, 1999 (0) AIJEL SC 14770, Naresh Vs. Heman, 2019(0) AIJEL SC 65359.
20. Learned advocate for the defendant has relied on the judgment in case of Chandrabhan (Deceased) through Lrs. & Ors. Vs. Saraswati & Ors, 2022 LawSuit (SC) 1133.
21. Having heard learned advocates for the parties and after going through the judgment and decree passed by the Trial Court and the Appellate Court the fact remains that the dispute between the parties to the litigation is whether the suit property was given on rent to individual i.e. Manilal Damodardas Patel or the partnership firm was a tenant in the premises. The plaintiff has produced the documentary evidence that are the rent receipts with respect to the suit property which clearly states that all the rent receipts are in the individual name i.e. Manilal Damodardas Patel, there is no document to show that the landlord had ever agreed and Page 12 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined acknowledged the partnership firm to be the tenant in the premises.
The document that have been produced vide exhibit 91 also state that the name "(Bhai)" "(Shri)" "Manilal Damodardas Patel". The partnership firm name is "Patel Manilal Damodardas" and the rent receipts produced vide exhibit 123 is in the name of "Manilal Damodardas Patel". The document vide exhibit 125 is also in the name of "Manilal Damodardar Patel", vide exhibit 130 "(Shri)" is mentioned before "Manilal Damodardas", the Tax Bill produced at page 142 is also in the individual name of Manilal Damodardar Patel.
22. Though a specific issue was raised before the trial court that whether there is any relationship of landlord and tenant between the plaintiff and the defendant, the Trial Court has come to a finding that there is no relationship of tenant and landlord between the plaintifff and defendants.
23. The fact also remains that the plaint produced vide exhibit 92 of the Civil Suit No.896 of 1981, which was filed by Manilal Damodardas against the landlord was also in his individual capacity and therefore, Manilal Damodardas has never claimed that the tenant of the suit property was partnership firm.
24. The defendants have tried to canvas their argument on the Page 13 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined basis that the Manilal Damodardas was a partner in the partnership firm known as "Manilal Dmodardas" but the fact remains that though some of the partnership business was being carried out at the suit property but the fact remains that the tenant of the suit property was the individual i.e. Manilal Damodardas Patel and not the partnership firm.
25. Moreover, while deciding the Civil Revision Application no.1 of 2018, the First Appellate Court has taken into consideration all the said facts and the said order passed in Civil Revision Application No.1 of 2018 has not been challenged by the defendants and therefore, the said observation and finding of the Civil Revision Application no.1 of 2018 has become final and the application for standard rent filed by the defendant has been dismissed and therefore, the said findings have become final. It is also important to be take into consideration that Manilal Patel retired as a partner of partnership firm on 08.11.1980 and the said retirement deed has been produced vide exhibit 141 and thereafter Manilal Patel died on 28.04.1984. It is also required to take into consideration that in the cross-examination of defendant no.1, he has clearly admitted that the tenant of the suit property was of Manilal Patel, moreover there is no evidence to the fact that the firm was a tenant in the suit property. The First Appellate Court has also arrived at a conclusion that the document that have been Page 14 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined produced by the defendants at exhibit 139 and 171 i.e. dissolution of partnership are forged and fabricated documents and it is not possible to purchase a stamp paper in the name of a person who has expired. The judgement on which learned advocate for the defendant is relying on the judgment in case of Chandrabhan (Deceased) through Lrs. & Ors. Vs. Saraswati & Ors, 2022 LawSuit (SC) 1133 in the said Judgement at para 32 it is referred as under:
"32. 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, insofar 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 Page 15 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined 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. (See Santosh Hazari v. Purushottam Tiwari, 2001 3 SCC
179)."
26. The aforesaid judgment will be of no assistance to the learned advocate for the defendant as there are no substantial questions of law involved in the present second appeal.
27. Learned advocate for the plaintiff has also relied on the judgment in case of Bai Chanchal Widow of Chhaganbhai Jibhai Vs. Bai Suraj Widow of Ranchhodbhai Chhaganbhai, 1962 (0) AIJEL-HC 215941, wherein para nos.20, 26 and 28 it is held as under:
"20. Now to turn to the facts of this revision application. Civil Suit No. 162 of 1957 was filed by the wife of one Ranchhod Chhaganbhai and others against the mother of Ranchhod and others. The wife claimed possession and mesne profits of the properties said to be in possession of the mother. She put Page 16 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined her claim on the ground that after the death of her husband her husband's property devolved on her and she had adopted opponent No. 2 as her son.
26. It is contended by the learned counsel for the opponents that Section 11, Civil Procedure Code, does not apply to appeals and ha relies on Mt. Lachhmi v. Mt. Bhulli, AIR 1927 Lah 289 and the fact that the judgment has been referred to with approval by their Lordships of the Supreme Court in Narhari v. Shanker, AIR 1953 SC 419. In AIR 1927 Lah 289, the following observations have been made : -
"Section 11 applies to suits and not to appeals. But the general principle of res judicata will apply to appeals; and, in applying these general principles, the courts are not hampered by any technical rules of interpretation such as govern the applicability of a statute."
It may be that if Section 11, C. P. Code does not apply to appeals, the principle of res judicata contained in that section might apply as a Page 17 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined general principle because Section 11, C. P. Code is not exhaustive as decided by their Lordships of the Privy Council, in Hook G. H. v.
Administrator General of Bengal, ILR 48 Cal 499 : (AIR 1921 PC 11)."
28.Section 108, C. P. Code has no application, because Section 108 is contained in Part VII, whereas Section 11, C. P. Code is contained in Part I, C. P. Code. Order 42, Rule 1, has also no application because it only provides that the rules of Order 41 shall apply as far as may be to appeals from the appellate decrees. It has no reference to Section 11, C. P. Code."
28. The said Judgement also will not be applicable to the facts of the present case as in the present case, Civil Revision Application no.1 of 2018 was filed with respect to the fixation of standard rent under the provisions of Bombay Rent Act and the Civil Suit No.543 of 1999 that was challenged, and the appeal that was filed, challenging the decree of eviction was under the provisions of Code of Civil Procedure, 1908 and the facts of both the case were totally different as in the Civil Misc. Application 62 of 1999, the dispute was of fixation of standard rent as the present defendant was claiming to be the Page 18 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined tenant of the suit property and therefore had filed an application for fixing the standard rent and and the Civil Suit No.543 of 1999 was filed by the plaintiffs for possession of the suit property on the ground that the present defendant do not have any right, title, interest to occupy the suit premises.
29. The judgements that have been relied upon by the plaintiff, more particularly Sri Gangai Vinayagar Temple Vs. Meenakshi Ammal, 2014 (0) AIJEL SC 55794, para 22 and 23 reads as under:
"22. Procedural norms, technicalities and processal law evolve after years of empirical experience, and to ignore them or give them short shrift inevitably defeats justice. Where a common judgment has been delivered in cases in which consolidation orders have specifically been passed, we think it irresistible that the filing of a single appeal leads to the entire dispute becoming sub judice once again. Consolidation orders are passed by virtue of Page 19 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined the bestowal of inherent powers on the Courts by Section 151 of the CPC, as clarified by this Court in Chitivalasa Jute Mills vs. Jaypee Rewa Cement (2004) 3 SCC 85. In the instance of suits in which common Issues have been framed and a common Trial has been conducted, the losing party must file appeals in respect of all adverse decrees founded even on partially adverse or contrary speaking judgments. While so opining we do not intend to whittle down the principle that appeals are not expected to be filed against every inconvenient or disagreeable or unpropitious or unfavourable finding or observation contained in a judgment, but that this can be done by way of cross-
objections if the occasion arises.
The decree not assailed thereupon metamorphoses into the character of a "former suit".
If this is not to be so viewed, it Page 20 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined would be possible to set at naught a decree passed in Suit A by only challenging the decree in Suit B. Law considers it an anathema to allow a party to achieve a result indirectly when it has deliberately or negligently failed to directly initiate proceedings towards this purpose. Laws of procedure have picturesquely been referred to as handmaidens to justice, but this does not mean that they can be wantonly ignored because, if so done, a miscarriage of justice inevitably and inexorably ensues. Statutory law and processal law are two sides of the judicial drachma, each being the obverse of the other. In the case in hand, had the Tenant diligently filed an appeal against the decree at least in respect of O.S. 5/78, the legal conundrum that has manifested itself and exhausted so much judicial time, would not have arisen at all.
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23. Adverting in the impugned Judgment to the decision of this Court in Sajjadanashin Sayed vs. Musa Dadabhai Ummer AIR 2000 SC 1238, the Division Bench delineated the distinction between an aspect of the litigation that is collaterally and incidentally, as against one that is directly and substantially focal to the question the determination of which is the immediate foundation of the decision. Reference was also drawn to enunciation of what constitutes res judicata in Hoag vs. New Jersey (1958) 356 U.S. 464, namely that this important legal principle is attracted "if the records of the formal trial show that the judgment could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties". The Division Bench also garnered guidance from the observations of this Court in Isher Singh vs. Sarwan Singh, AIR Page 22 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined 1965 SC 948 requiring the examination of the Pleadings and the Issues in order to ascertain whether the question was directly and substantially litigated upon. The Division Bench also considered Asrar Ahmed vs. Durgah Committee, Ajmer, AIR 1947 PC 1 and Pragdasji Guru Bhagwandasji vs. Patel Ishwarlalbhai Narsibhai, AIR 1952 SC 143, before concluding that Issue No.2 framed in O.S. 5/78 was wholly unnecessary and faulty. The Division Bench held that the findings on that Issue were unnecessary, did not constitute the minimum foundation for the ultimate decision and, therefore, would not constitute res judicata. We have already indicated above that, in our opinion, if O.S.5/78 was merely a suit for injunction simpliciter, since the Defendants therein (both the Trustees as well as the Transferees) had posited in their respective Written Statements that they had no intention to dispossess the Plaintiff/Tenant, Page 23 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined that suit ought not to have been dismissed but should have been decreed. We have also laid emphasis on the fact that the Tenant had made a specific and pointed assertion in the plaint that the transfer of the demised land by the Trust to the Transferees was not in consonance with Section 26 of the Puducherry Hindu Religious Institutions Act, 1972. We have also noticed the fact that this was an important objection raised by the Tenant in their Written Statement in O.S.6/78 and O.S.7/78. It seems to be incongruous to us to consider ownership of the demised premises to be irrelevant in O.S.5/78 but nevertheless constitute the kernel or essence or fulcrum of the disputes in O.S.6/78 and O.S.7/78. The dialectic adopted by the Court must remain steadfastly constant - if title was irrelevant so far as a claim for injunction simpliciter, it was similarly so in relation to the party having the advantage of Section 116 of the Evidence Act in respect of its Page 24 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined claim for arrears of rent from its tenant. It would not be logical to overlook that the pleadings on behalf of the Tenant were common in all three suits, and that Issues on this aspect of the dispute had been claimed by the Tenants in all the three suits. On a holistic and comprehensive reading of the pleadings of the Tenant in all the three suits, it is inescapable that the Tenant had intendedly, directly and unequivocally raised in its pleadings the question of the title to the demised premises and the legal capacity of the Trustees to convey the lands to the Transferees. This is the common thread that runs through the pleadings of Tenant in all three suits. It is true that if O.S.5/78 was a suit for injunction simpliciter, and in the wake of the stance of the Trustees and Transferees that no threat had been extended to the Tenants regarding their ouster, any reference or challenge to the ownership was wholly irrelevant. But the ownership Page 25 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined issue had been specifically raised by the Tenant, who had thus caused it to be directly and substantially in issue in all three suits. So far as the Suit Nos.6/78 and 7/78 are concerned, they were also suits simpliciter for the recovery of rents in which the defence pertaining to ownership was also not relevant; no substantial reason for the Tenant to file an appeal in O.S. 6/78 had arisen because the monetary part of the decree was relatively insignificant. Obviously, the Tenant's resolve was to make the ownership the central dispute in the litigation and in these circumstances cannot be allowed to equivocate on the aspect of ownership. Logically, if the question of ownership was relevant and worthy of consideration in O.S. 6/78, it was also relevant in O.S. 5/78.
Viewed in this manner, we think it is an inescapable conclusion that an appeal ought to have been filed by the Tenant even in respect of O.S. 5/78, for fear of inviting the rigours Page 26 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined of res judicata as also for correcting the "dismissal" order. In our opinion, the Tenant had been completely non-suited once it was held that no cause of action had arisen in its favour and the suit was 'dismissed'. Ignoring that finding and allowing it to become final makes that conclusion impervious to change. In Sheoparsen Singh vs. Ramnandan Prasad Singh, (1915-16) 43 I.A.91, the Privy Council opined -
"Res judicata is an ancient doctrine of universal application and permeates every civilized system of jurisprudence. This doctrine encapsulates the basic principle in all judicial systems which provide that an earlier adjudication is conclusive on the same subject matter between the same parties." The raison d'etre and public policy on which Res judicata is predicated is that the party who has raised any aspect in a litigation and has had an Issue cast thereon, has lead evidence in that regard, and has argued on the point, Page 27 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined remains bound by the curial conclusions once they attain finality. No party must be vexed twice for the same cause; it is in the interest of the State that there should be an end to litigation; a judicial decision must be accepted as correct in the absence of a challenge. The aspect of law which now remains to be considered is whether filing of an Appeal against a common Judgment in one case, tantamounts to filing an appeal in all the matters."
30. In case of Ram Prakash Vs. Charan Kaur, 1997 (0) AIJEL-
SC 23744, in para nos.1 it is held as under:
"1. This special leave petition arises from the judgment of the Himachal Pradesh High Court, made on September 18, 1996 in Second Appeal No.215 of 1987. Admittedly, both the petitioner and the respondents had filed civil suits claiming damages against each other. The petitioner's suit was dismissed and the respondents' suit Page 28 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined was also dismissed by the trial Court but on appeal filed by the respondents, it was allowed and was decreed for recovery of Rs.24,875/-. The petitioner filed second appeal against the decree which was admitted. However, the petitioner did not carry the matter in second appeal against his suit for damages and was content with filing an appeal against the decree of damages granted against him. The High Court recording the findings has held thus:
"Thus, on the basis of the aforesaid factual as well as legal proposition, it can safely be said that where two connected suits have been tried together and the findings recorded in one of he suit have become final in absence of an appeal, the appeal preferred against the findings recorded in the other suit would definitely Page 29 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined be barred by the principles of res judicata. This is the ratio of the above cited case law decided by the apex Court of the country. Thus, there is absolutely no necessity to go into other aspects of the appeal, especially when on factual side, as detailed above, the decree, not appealed against by the present appellant, passed by the first appellate Court, has become final between the parties, which has created a legal bar for the maintainability of the present appeal whereby the decree passed in the other suit has been assailed.""
31. Learned advocate for the plaintiff has also relied upon the judgment in case of Naresh Vs. Hemant, 2019(0) AIJEL-SC 65359, more particularly para nos.11 , 12, 13 and 14 which reads as under:
Page 30 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined "11. The High Court invoked the presumption without proper consideration and appreciation of the facts considered and dealt with by two courts holding by reasoned conclusions why the presumption stood rebutted on the facts. The High Court also committed an error of record by holding that there was no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW-1 in his evidence. The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed. The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable. No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal.
12. The High Court therefore manifestly erred by interfering with the concurrent findings on facts by two courts below in exercise of powers under Section 100, Civil Procedure Page 31 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined Code, a jurisdiction confined to substantial questions of law only. Merely because the High Court may have been of the opinion that the inferences and conclusions on the evidence were erroneous, and that another conclusion to its satisfaction could be drawn, cannot be justification for the High Court to have interfered.
13. In Madamanchi Ramappa vs. Muthaluru Bojappa, (1964) 2 SCR 673, this court with regard to the scope for interference in a second appeal with facts under Section 100 of the Civil Procedure Code observed as follows:
"12. ....The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a Page 32 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by Section 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the Page 33 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined High Court contravenes the express provisions of Section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid."
14. Though precedents abound on this settled principle of law, we do not consider it necessary to burden our discussion unnecessarily except to rely further on Gurdev Kaur and others vs. Kaki and others, (2007) 1 SCC 546, holding as follows:
"71. The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 CPC have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross Page 34 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law.
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73. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be, and they added a note of warning that no court in India has power to add to, or enlarge, the grounds specified in Section 100.
xxxx
81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even Page 35 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention.
82. In view of the clear legislative mandate crystallised by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.""
32. Learned advocate for the plaintiff has also relied upon the judgment in case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar, 1999 (0) AIJEL-SC 14770, at para no.4, wherein it has been held that the second appeal cannot be decided on merely equitable grounds and that the conditions mentioned in Section 100 of the Code of Civil Procedure, Page 36 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined 1908 must be strictly fulfilled before a second appeal can be maintained and that the Court has the power to add to or enlarge those grounds.
33. Learned advocate for the plaintiff has also argued that there are no substantial questions of law involved in the present Second Appeal. The Trial Court and the First Appellate Court has given a concurrent finding to the fact that the defendants are not the tenants of the suit property and that the suit property has been given on rent to the individual Manilal and that after his death the present defendants are not the tenants of the property.
34. It is required to be noted that in Second Appeal, the scope is very limited and the Court cannot re-appreciate the evidence. In the case of Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC 177, the Hon'ble Apex Court has observed as under:-
"11. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings Page 37 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined of the lower courts."
35. Having taken into consideration the facts of the present case and the judgment relied on by the plaintiff that there are concurrent findings on facts and the view that has been taken are not erroneous and therefore, cannot be disturbed by the High Court in exercise of powers under Section 100 of the Code.
36. In view of the said fact, the Trial Court has rightly come to the findings that there is no relationship of tenant and landlord between the plaintiff and defendants.
37. The Trial Court and the Appellate Court have also rightly come to the conclusion that even during the lifetime of late Manilal Damodardas he had not claimed that the partnership firm is a tenant in the property.
38. In view of the said fact, the findings arrived at by the Trial Court and the Appellate Court are not erroneous and contrary to the mandatory provisions of law.
39. In the case of Jaichand (Dead) through Lrs and Other v.
Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the Hon'ble Apex Court has observed as under:-
Page 38 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined "28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence."
40. Therefore, also the plaintiff has miserably failed to show that there is any substantial question of law involved in the present appeal and the substantial question of law which has been formulated in the memo of appeal are also not substantial question of law and on facts and the said factual aspect has well been considered by the Trial Court and the First Appellate Court.
41. Under the circumstances, this Second Appeal is devoid of any substantial question of law. Both the learned Trial Court and first appellate Court have rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the present appeal. The plaintiffs have failed to prove their case before the learned trial Court as well as before the first appellate Court. This Court does not find any substance in the present Second Appeal as Page 39 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025 NEUTRAL CITATION C/SA/495/2024 CAV ORDER DATED: 09/05/2025 undefined the same is devoid of any merit both on facts and law and the same is dismissed at admission stage. In view of the disposal of the Second Appeal, the Civil Application for stay would not survive and the same is accordingly disposed of.
Sd/-
(SANJEEV J.THAKER,J) URIL RANA Page 40 of 40 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:14:13 IST 2025