Gurmeet Kour And Others vs Dr. Anil Bhalla And Others
2022 Latest Caselaw 128 j&K

                                                                     Serial No. 91



       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU

                                                 CSA No. 14/2011
                                                 IA No. 8/2015
                                                 IA No. 1/2016

                                                 Reserved on :- 08.12.2021
                                                 Pronounced on :- 09.02.2022


Gurmeet Kour and others                           ...Applicant(s)/Petitioner(s)

                      Through:- Mr. Anil Sethi, Advocate
                           v/s

Dr. Anil Bhalla and others                                    ...Respondent(s)

                      Through:-   Mr. Ved Raj Wazir, Sr. Advocate with
                                  Mr. Abhishek Wazir, Advocate

Coram:       HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                      ORDER

1. The instant Civil Second Appeal filed under Section 100 of Code

of Civil Procedure (hereinafter, for short „CPC) is directed against the

judgment and decree dated 28.04.2011 passed by the District Judge, Poonch

(for short, „The Appellate Court‟), in file No. 02/Civil Appeal and judgment

and decree dated 04.06.2007 passed by Sub-Judge, Poonch (for short, „Trial

Court‟), in file No. 49/Civil.

2. The facts leading to the filing of the instant appeal would reveal

that one Bakshi Bansi Lal (predecessors in-interest of the respondent Nos. 1

to 5 herein) being owner of a shop rented out to one Tarlok Singh-

(predecessors in-interest of the respondent Nos. 2 to 5 herein) filed a suit for

ejectment in respect of the said shop inter-alia on various grounds including

on the ground of personal necessity before the trail court against the said

Tarlok Singh and one Harbhajan Singh (sub-tenant).

3. The Trial Court decreed the suit in favour of the plaintiff vide

judgment and decree dated 04.06.2007 holding that the original tenant has

handed over the possession of the suit shop to defendant-Harbhajan Singh-

(deceased appellant No. 1 herein) who is doing business in the suit shop.

4. Harbhajan Singh (deceased-appellant No.1 herein) challenged the

decree and judgment of Trial Court dated 04.06.2007 in an appeal before the

Appellate Court arraying the legal heirs/representatives of the original tenant

i.e. Tarlok Singh as performa respondent Nos. 6 to 9 whereas the legal

representatives of the plaintiff Bakshi Bansi Lal Bhalla on account of his

death were arrayed as respondent Nos. 1 to 5. The said appeal got dismissed

vide judgment and decree dated 28.04.2011 by the Appellate Court

upholding the judgment and decree of the Trial Court.

5. The legal heirs of deceased original tenant Tarlok Singh did not

choose to file any appeal against the impugned judgment and decree dated

04.06.2007 of the Trial Court.

6. Both the impugned judgments and decrees are being assailed in

the instant appeal inter-alia on the following grounds :-

1. That the judgment and decree dated 28.04.2011 passed by the District Judge Poonch whereby the appeal filed by the appellant against the judgment and decree dated

04.06.2007 passed by the Ld. Sub Judge Poonch is against law and facts and therefore liable to be set aside.

2. That Lt. Sh. Bansi Lal Bhalla instituted a suit for ejectment of the appellant and Lt. Sh. Tarlok Singh from the shop situated in main Bazar Poonch of which Lt. Sh. Tarlok Singh was the tenant on payment of monthly rent of Rs. 140 since April 1984.

3. That the grounds for ejectment of the tenant included subletting reasonable requirement, violation of the terms of the lease agreement and after considering the pleading of the parties the Trial Court framed following issues.

7. Following questions are being proposed to be as "substantial

questions of law" in the memo of the appeal :-

i. That whether the concurrent findings of the first appellate court on issue no. 1 is contrary to the mandate of S. 11 (1) (c) of Houses and Shops Rent Control Act in terms of which the tenant can be evicted on the ground of sub letting only if he has sub let the whole or major portion of the shop for more than seven consecutive months. When the issue framed is that the plaintiff that the tenant in this case has sub let only southern corner of the shop ii. Whether the requirement of the plaintiff (now dead) who admittedly owns five shops all in Poonch town could be held reasonable and bonafide as compared to the requirement of the appellant.

iii. Whether the courts below have erred in deciding issue no. 6 holding the appellant as a trespasser when he has been impleaded as defendant in the suit as a sub tenant.

iv. Finding of the Trial Court on issue no. 5 is contrary to the settled law, that after the expiry of the contractual period, the tenant becomes a statutory tenant by operation of Houses and Shops Control Act.

v. Whether the courts below have erred in holding that the contractual tenancy have come to an end after the expiry of the lease period after admitting that provisions of houses and Shop control are applicable to the premises.

vi. Whether the reasonable requirement of the Lt.

Plaintiff survived after his death and the decree for ejectment can be supported under law courts below.

vii. Whether the finding of the court below that there can be no oral partnership is contrary to law.

Heard learned counsel for the parties and perused the record.

8. Record reveals that original-tenant Tarlok Singh died during the

pendency of the suit and his legal heirs along with Harbhajan Singh filed a

joint written statement on 28.04.1996 admitting therein the Bakshi Bansi Lal

Bhalla as owner of the shop and Tarlok Singh as tenant of the same paying

rent as per the agreement and further contending that the defendant-tenant

Tarlok Singh was running one PCO business under the name, Sainik PCO

Poonch, as also the business of news agency and that Tarlok Singh did not

sub-let any portion of the shop to Harbhajan Singh but in fact there was a

partnership between them and that the widow of the Tarlok Singh derived

the income from the suit shop and has to marry one daughter and son and

that the plaintiff has no genuine need and bonafide requirement of the suit as

per the comparative advantages and disadvantages of the landlord and tenant

and that the plaintiff is a business man having two shops in City Chowk, one

run by him along with his son and other being closed and that the eviction of

the defendant from the suit shop would result in the starvation of the

defendants.

9. Perusal of the record tends to show that the Trial Court in terms of

order dated 09.07.1997 framed the following issues :-

1. Whether the defendant No. 1 has sub-letted southern corner shop of the demised premises to defendant Harbhajan Singh in violation of the terms of Lease Agreement executed on 10.05.1984 ? If so, what is its effect ? O.P.P

2. Whether defendant No. 1 has changed the structure of suit shops by making alterations of permanent nature in violation of Lease Agreement ? O.P.P

3. Whether the plaintiff is in reasonable and bonafide need of suit shops for his personal requirement ? O.P.P

4. Whether the notice for eviction served on 18.04.1995 by plaintiff on defendant No. 1 is not in accordance with law ? If so, to what effect on the suit ? O.P.D

5. Whether the contractual tenancy has been determined ? O.P.P

6. Whether the defendant Harbhajan Singh is a trespasser in the suit shop converted into a PCO ? If so, is he liable to be evicted? O.P.P

7. Whether the defendants have refused to vacate the suit shops despite notice ? If so, What is its effect ? O.P.P

8. Whether the plaintiff has no cause of action ? O.P.D

9. Whether the suit has not been properly valued ? If so, what is the correct valuation and its effect on the suit ? O.P.D

10.Whether the on proof of issue 1 to 3 and 5 to 7 defendants are liable to be evicted ? O.P.P

11.Whether partial eviction of defendants from suit shops can satisfy the personal requirement of plaintiff ? O.P.D

12.What are the comparative advantages/disadvantage of parties in case of eviction/non-eviction of defendants from suit shops ? O.P. Parties.

10. Record reveals that the plaintiff appeared as his own witness

besides other witnesses namely „Sham Lal Suri‟, „Raj Nath‟, „Madan Lal‟,

„Sanjay Raina Advocate‟, „Roshal Lal‟, „Abdul Rashid Labour Inspector,

Poonch‟ whereas defendant-Harbhajan Singh appeared as his own witness

besides his other witnesses namely „Gowardhan Singh‟, „Sarwan Singh‟,

„Joginder Singh‟, „Isher Dass‟, „Wajahat Hussain‟ and „Harbans Singh‟.

11. Perusal of the record further reveals that the Trial Court while

deciding issue No. 1 held that the defendant-Harbhajan Singh failed to

establish his tenancy over the suit shop as well as to produce any

document/evidence in this regard or even suggesting that the Harbhajan

Singh was doing business on behalf of the legal heirs of the original tenant-

Tarlok Singh as Tarlok Singh had died and so had died Amrit Kour widow

of Tarlok Singh during the pendency of the suit and that the son of the

original tenant-Tarlok Singh had been in government service putting up in

Jammu and had not come forward to contend that the Harbhajan Singh is

doing business on their behalf and that all the witnesses examined by the

plaintiff had stated that the Harbhajan Singh is doing business in the suit

shop. The Trial Court has also taken into account the different stands taken

by the defendant-Harbhajan Singh in the written statement filed by him

along with the legal heirs of original tenant and while appearing as his own

witness. The Trial Court thus, held the defendant-Harbhajan Singh to be in

possession of the suit shop without any right directing his eviction thereto on

the basis of Section 11 (c) of Houses and Shops Rent Control Act.

Before the Appellate Court, the Harbhajan Singh-deceased-

appellant No.1 herein while throwing challenge to the judgment and

decree of the Trial Court had contended qua issue No.1 that there is no

evidence that the suit shop was sub-letted or transferred to third person

on payment of consideration and there is no subletting where

partnership is carried on the rental premises. The Appellate Court while

concurring with the findings with the Trial Court on issue No.1 upon

evaluating the material on record including evidence led by respondent-

deceased-Harbhajan Singh held him neither a legal heir of original

tenant Tarlok Singh nor a tenant of the suit shop but in possession of

the same without the consent of the landlord. The Appellate Court also

accepted the findings of the Trial Court that the said Harbhajan Singh

also has not been doing business in partnership with the original tenant

Tarlok Singh as he had failed to produce any document thereto.

12. In so far as issue No. 2 is concerned, the Trial Court has decided

the same in favour of the plaintiff holding that the defendants changed the

structure of the suit shop by partitioning it without the consent of the

landlord-plaintiff. In so far as this issue is concerned, the Appellate Court

has held the same to have been correctly and rightly decided by the Trial

Court.

13. In so far as issue No. 3 is concerned, the Trial Court has held that

the plaintiff has successfully proved that he has reasonable requirement of

the suit shop being required by him for godown purpose. Before the

Appellate Court, the appellant-Harbhajan Singh had contended that the Trial

Court decided the said issue wrongly, in that, the plaintiff who had shown

personal necessity before the Trial Court expired during the course of the

proceedings and that his requirement came to an end and that his legal

representative did not show the continuity of the personal necessity and

bonafide requirement. The Appellate Court while dealing with the said

contention of the Appellant-Harbhajan Singh held that the Trial Court

rightly on careful analysis of the evidence and the legal position obtaining in

the matter decided the issue in favour of the plaintiff moreso fundamentally

on the ground that after the death of the original plaintiff Bansi Bakshi Lal

Bhalla, his legal heirs stepped into his shoes and Ajay Kumar Bhalla

satisfactorily showed continuity of personal necessity.

14. In so far as issue No. 4 is concerned, the Trial Court has decided

the same against the defendant holding that the defendant failed to disclose

any legal defect in the eviction notice served upon defendant-Tarlok Singh

by the plaintiff-Bansi Bakshi Lal Bhalla. The said findings of the Trial Court

in respect of issue No. 4 has also been upheld by the Appellate Court.

15. In so far as issue No. 5 is concerned, the same has been decided by

the Trial Court in favour of the plaintiff and consequently, upheld by the

Appellate Court.

16. The Trial Court while deciding issue No. 6 has held the deceased-

appellant-Harbahajan Singh herein being defendant No. 6 before the Trial

Court to be as neither a legal heir nor the partner of the original tenant

Tarlok Singh. On the basis of having held that the defendant-Harbhajan

Singh failed to prove that he is the tenant of the plaintiff therefore, held him

liable to be evicted from the suit shop being a trespasser thereto. The

findings of the said issue has also been upheld by the Appellate Court in the

impugned judgment dated 28.04.2011.

17. In so far as issue No. 7 is concerned, the Trial Court has held that

the defendants failed to handover the suit shop to the plaintiff despite notice

further holding that the tenancy if any, had got determined by the notice. The

said issue has been held to be rightly decided by the Appellate Court in the

impugned judgment dated 28.04.2011.

18. The Trial Court while deciding issue No. 8 has held that the

defendant failed to prove the said issue while discharging his burden thereto

holding that a cause of action accrued to the plaintiff when the suit shop was

required for his personal use and defendant failed and refused to hand over

the possession of the suit shop after service of notice. The Appellate Court

upheld the findings recorded by the Trial Court in regard to this issue as

well.

19. In so far as issue No. 9, 10 and 11 are concerned, the Trial Court

has decided the same against the defendants and have been upheld by the

Appellate Court as well.

While deciding issue No. 9, the Trial Court has held the suit to

have been valued correctly. No such plea according to the Appellate

Court, in this regard, had been raised before it by the deceased-

appellant No.1 herein.

In so far as issue No. 10 is concerned, same has been decided in

favour of the plaintiffs on the basis of the decision of issues Nos. 1 to 3

and 5 to 7 and further holding that after the death of Tarlok Singh and

his widow Amrit Kour appellant-Harbhajan Singh is neither a legal heir

of the original tenant nor a tenant of the suit shop and has no right to

remain in possession of the suit shop, as such, liable to be evicted.

In so far as issue No. 11 is concerned, the Trial Court has held that

on the constant growing business of the plaintiffs, there is a personal

necessity and need of the suit shop for personal use and that the partial

eviction of the defendant from the suit shop will not serve the purpose

of the plaintiffs.

20. In so far as issue No. 12 is concerned, after evaluating

comparative advantages and disadvantages the Trial Court has held that the

original tenant Tarlok Singh and his widow died during the pendency of the

suit and their daughter got married and their son has been in government

service and on the contrary one son of the plaintiff is an eye specialist

requiring a space for his practice and the other is doing business with his

father and that the requirement of the plaintiff continued to be the

requirement of his sons, moreso, in view of the considerable progress and

growth of the business of the plaintiffs and that the appellant is having a

cloth shop in the same market and also works as a press reporter for „Aaj

Tak‟ TV Channel and if evicted from the shop in question, his livelihood

will not be in danger but the plaintiff will suffer if the defendants are not

evicted from the entire shop.

21. Before proceeding further in the matter, it would be appropriate

and advantageous to refer to the legal position in so far as the ambit and

scope of second appeal enshrined in Section 100 CPC is concerned.

Section 100 reads as under :-

"[100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law

for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]"

22. It needs to be mentioned here that after the amendment of Section

100 by the Code of Civil Procedure (Amendment) Act of 1976, the

following consequences have ensued :-

"i. The High Court must be satisfied that the case involves a substantial question of law.

ii. The memorandum of appeal must precisely states such questions.

iii. The High Court at the time of admitting the appeal should formulate substantial questions of law.

iv. The appeal shall be heard only on that question.

v. At the hearing of the appeal, the respondent can argue that the case does not involve such question.

vi. The High Court, however, can hear the second appeal on any other substantial questions of law not formulated by it, if it is satisfied taht the appeal involves such questions.

vii. In doing so, High Court should record the reasons."

In view of the aforesaid position, the scope of second appeal has

been considerably narrowed down and substantially curtailed. Law is no

more res-intgra that under the amended Section 100, a party aggrieved by a

decree passed by the first Appellate Court has no absolute right of appeal.

The party can neither challenge the decree on a question of fact nor on a

question of law.

23. A reference to the latest judgment of Apex Court passed in case

titled "Gurnam Singh (dead) By Lrs. & Ors. V. Lehna Singh (dead) by Lrs.

& Ors." reported in (2019) 7 SCC 641, would be appropriate and

advantageous wherein at para No. 13.1 following has been held :-

"13.1...............As per the law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of „a substantial question of law‟ is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a

second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:

(i) Contrary to the mandatory provisions of the applicable law; OR

(ii) Contrary to the law as pronounced by the Apex Court;

OR

(iii) Based on inadmissible evidence or no evidence.

It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in second appeal."

24. A reference to the Judgment of the Apex Court titled "Santosh

Hazari vs. Purshottm Tiwari, AIR 2001 SC 965" would also be relevant

and germane herein, wherein law has been laid down as what constitute a

substantial question of law. Following has been provided at para No. 14 of

the Judgment supra :-

"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, nor 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 jut 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."

25. In the instant appeal, the appellants have proposed substantial

questions reproduced in the preceedings paras.

26. Admittedly, appellants Nos. 2 to 5 have assailed the judgment and

decree of the Appellate Court without throwing challenge to the impugned

judgment and decree of the Trial Court before the Appellate Court and the

said judgment and decree of the Trial Court came to be questioned by

deceased-appellant No. 1-Harbhajan Singh alone while impleading

appellants No. 2, to 5 herein as proforma respondents.

27. Be that as it may, the questions framed revolve around the

dissatisfaction of the appellants with the affirmative findings arrived at by

the Trial Court in so far as issues are concerned primarily and fundamentally

regarding the sub-letting of the shop in question by the deceased original

tenant Tarlok Singh to the deceased-appellant-Harbhajan Singh that he has

been in possession of the suit shop without disclosing any right recognized

under law based on factual assertions raised in the written statement and

evidence led. The whole emphasis in the memo of the appeal and in the

questions framed is mainly on the grounds that both the Trial Court as well

as the Appellate Court did not properly appreciate the matter.

28. So far as first question framed in the memo of the appeal is

concerned, the same has reference to sub-letting southern corner of the shop

and essentially not whole or major portion of the shop. The said question by

no sense of imagination can said to be a substantial questions of law and

cannot said to be either debatable or arguable. The said question is based on

findings of facts recorded by the Trial Court on evidence and material on

record and consequently, upheld by the Appellate Court.

29. So far as question No. 2 is concerned, same is based on concurrent

findings of facts recorded by the courts below as well based on the findings

of facts recorded by the said courts upon evidence and material on record.

30. So far as question No. 3 is concerned, it is pertinent to mention

here that the use of „expression‟ a trespasser by the Trial Court will not

change the character of the appellant-Harbhajan Singh as sub-tenant, in that,

the appellant has been admittedly found by the Trial Court to have been put

in possession of the suit shop by the original tenant without the consent of

the plaintiff having been admitted deceased-Harbhajan Singh himself to be

in possession of the suit shop sometimes as a partner and sometimes as an

attorney of the wife of the deceased original tenant. The deceased-appellant-

Harbhajan Singh by all means qualified to be a sub-tenant of the suit shop in

view of his admission that he has been depositing rent in the court qua the

suit shop in the name of the landlord. The said question otherwise, also is

based on the concurrent findings of the facts recorded by the courts below

and that the said plea is being raised for the first time in the instant appeal,

even though assuming, it may be a mixed question of law and fact, yet same

cannot said to be a substantial question of law in the facts and circumstances

of the case.

31. So far as the question Nos. 4 and 5 are concerned, the Trial Court

has recorded a finding that the contractual tenancy stands determined in the

year 30.03.1985 and that the tenancy at Will as well stands determined in the

year 1995 when the plaintiff served a notice upon the defendants. The said

finding is based on evidence and material on record and has been upheld by

the Appellate Court as well. The said concurrent finding of facts recorded by

the courts below, as such, cannot by any means said to be a substantial

question of law in the facts and circumstances of the case. So much so, no

such plea had been raised by the deceased-appellant-Harbhajan Singh before

the Appellate Court and could not have been as the legal heirs of the original

tenant did not choose to file an appeal against the judgment and decree of the

Trial Court. The appellant-deceased-Harbhajan Singh did not claim any right

or interest in the suit shop on the basis of the rent agreement executed by the

landlord with the original tenant but instead claimed a right to be in

possession of the suit shop sometimes on account of partnership and

sometimes on account of a power of attorney which instruments were never

ever proved or least produced by him either before the Trial Court or the

Appellate Court.

So far as the question Nos. 6 and 7 are concerned, the question of

reasonable requirement of the plaintiff qua the shop in question has

been held to subsist by the Trial Court as well as the Appellate Court

based on the evidence and material on record after recording a finding

of the fact and same do not as well constitute a substantial question of

law.

32. In view of the aforesaid legal position and also having regard to

the facts and circumstances of the case, this Court is not persuaded to accept

the contentions/pleas raised in the memo of the appeal including the

questions proposed to be substantial questions of law and consequently,

decline to interfere with the concurrent findings contained in impugned

judgments and decrees under Section 100 of the CPC, fundamentally on the

premise that no substantial question of law is involved in the appeal.

Resultantly, appeal fails and is accordingly, dismissed.

(JAVED IQBAL WANI) JUDGE

Jammu 09.02.2022.

SUNIL-I

                            Whether the order is speaking ?     :      Yes/No
                            Whether the order is reportable ?   :      Yes/No