Jharkhand High Court
Kailash Sharma & Another vs Shambhu Prasad Agarwal & Others on 8 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Appellate Jurisdiction)
S.A. No. 316 of 2015
........
Kailash Sharma & Another .... ..... Appellants
Versus
Shambhu Prasad Agarwal & Others .... ..... Respondents
WITH
S.A. No. 314 of 2015
........
Kailash Sharma & Another .... ..... Appellants
Versus
Shambhu Prasad Agarwal & Others .... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
............
For the Appellants : Mr. Manjul Prasad, Sr. Advocate.
Mr. Gaurav Abhishek, Advocate.
Mr. Deepankar, Advocate.
[In both cases]
For the Respondent No. 9/Caveator : Mr. Rahul Gupta, Advocate.
[In both cases]
........
09/08.07.2021.
Heard, learned senior counsel, Mr. Manjul Prasad assisted by
learned counsels, Mr. Gaurav Abhishek and Mr. Deepankar on behalf of
appellants / appellant / defendants (tenants).
Learned senior counsel for the appellants has submitted that both
appeals have been preferred by the defendants (tenants) / appellant /
appellants before this Court against the concurrent findings of two courts
below i.e. judgments passed by learned Subordinate Judge-III,
Jamshedpur vide judgment dated 05.06.1990 and decree signed on
27.06.1990 in Title Suit No. 66/1982 and Title Suit No. 09/1981 and
judgment passed by learned District Judge-I, Jamshedpur vide judgment
dated 30.03.2015 and decree signed on 13.04.2015 passed in Title Appeal
No. 26/1991 and Title Appeal No. 06/1991, whereby the plaintiffs' suit for
eviction against the defendants have been allowed with a direction to the
defendants to quit and deliver vacant possession of the suit premises of
both the suits and to give vacant possession to the plaintiffs within a
period of 90 days from the date of the order, failing which they would be
evicted therefrom in due process of law and at their cost. The plaintiffs are
also entitled to realise the sum of Rs. 8175/- on account of arrears of rent
from the defendants of both the suits as well as Rs. 1520.15 as cost of suit.
Learned senior counsel for the appellants has submitted that there is
jurisdictional error in this case. To strengthen his argument, learned
counsel for the appellants has submitted that the defendant (tenant) /
appellant has filed an application before the lower appellate court under
Order XLI Rule 27 C.P.C. to bring certain documents on record. The said
application under Order XLI Rule 27 C.P.C. has been allowed and certain
documents, which have been brought on record by the defendants
(tenants) / appellant have been adduced as evidence.
Learned senior counsel for the appellants has submitted that in view
of the judgment passed by the Apex Court in the case of Corporation of
Madras and Another Vs. M. Parthasarathy and Others reported in
(2018) 9 SCC 445, the learned appellate court ought to have been
considered this aspect of the matter, either by setting aside the entire
judgment and decree passed by the learned trial court, by taking recourse
of provisions of Order XLI Rule 23 of the C.P.C. or remanded the case to
the trial court for re-trial in the suit, so that to enable learned counsel for
the parties to adduce oral evidence and to put additional evidence in
accordance with law or it has option to invoke power under Order XLI
Rule 25 C.P.C. by retaining the appeal to himself and remitting the case to
the trial court for limited trial on particular issue, arising in the light of
additional evidence, which have been taken on record and invited finding
of the trial court on such limited issue to enable the first appellate court to
decide the appeal on merits.
Learned counsel for the appellants has submitted that since these
additional evidence, which have been brought on record as i.e. Exhibits-
M, N, O, P, Q have not been considered by the learned appellate court, as
such, the impugned judgments passed by the courts below are fit to be set
aside.
The plaintiff no. 3 (landlord) / respondent no. 9 / respondent no. 9
has filed Caveat vide Caveat No. 85/2015 in S.A. No. 316/2015 and
Caveat No. 51/2015 in S.A. No. 314/2015.
Learned counsel for the respondent no. 9 / Caveator, Mr. Rahul
Kumar Gupta has submitted that there is no jurisdictional error, as the
application of the defendants (tenants) / appellant was allowed by the
learned lower appellate court and the defendants (tenant) / appellant have
adduced evidence. Those evidences have been considered, but if those
documents are not so important and relevant that may upset the judgment
of the learned trial court, the learned lower appellate court is right in not
taking much importance of those documents as because the defendants
(tenants) / appellant has admitted themselves in the written statement that
they are tenant of the plaintiffs and as such, these issues are not causing
any serious prejudice to the defendants (tenants) / appellant just to invoke
interference under Section 100 C.P.C.
Learned counsel, Mr. Rahul Gupta has further submitted that the
learned lower appellate court was justified in not taking these issues in
view of the judgment passed by the Apex Court in the case of Rajendra
Tiwary Vs. Basudev Prasad and Another reported in AIR 2002 SC 136,
wherein the learned Apex Court has held that "in a suit for recovery of
possession and arrears of rent, existence of "Landlord and Tenant"
relationship is sine qua non for granting relief and the question of the title
of the parties to the suit premises is not relevant and is beyond the scope
of Courts exercising jurisdiction under the Bihar Buildings (Lease, Rent
and Eviction) Control Act. "Landlord" has been defined under section
2(f) of the said Act, according to which, "Landlord" includes the person
who for the time being is receiving or is entitled to receive, the rent of the
building, whether on his own account or on behalf of another, or on
account or on behalf of for the benefit of himself and others or as an
agent, trustee, executor, administrator, receiver, guardian or who would
so receive the rent, or be entitled to receive rent, if the building were let to
a tenant."
Learned counsel for the plaintiff (landlord) / caveator, Mr. Rahul
Gupta has submitted that though the trial court has held while deciding the
Issue No. 4 i.e. Is there any relationship of landlord and tenant between
the plaintiffs and defendant no. 1 Dwarka Prasad Sharma in Title Suit No.
9/81 and defendant no. 1 Kheyaliram in Title Suit No. 66/82 exists at
paragraph no. 22 relying upon the evidence, that from the documentary
and oral evidence, the plaintiffs have been able to prove the relationship of
landlord and tenant between the plaintiffs and the defendant no. 1 in Title
Suit No. 9/1981 and between the plaintiffs and the defendant no. 1
Khyeliram in Title Suit no. 66/1982. Therefore, the learned trial court has
held that there was relationship between the plaintiffs and defendant as
landlord and tenant. This fact has been considered by the learned lower
appellate court while framing Issue No. I and same has been discussed in
para-19 of the learned lower appellate court judgment and has held that
the learned trial court has rightly decided that the landlord-tenant
relationship existed between both the parties. The defendants (tenants)
have also admitted that they are the tenants in the suit premises, as such,
this issue is no more res integra, so as to admit this appeal under Section
100 of C.P.C.
Under the aforesaid facts and circumstances of the case, since no
substantial question of law is made out to admit these appeals under
Section 100 of C.P.C., accordingly, both the appeals, being devoid of any
merit, are hereby dismissed.
(Kailash Prasad Deo, J.)
Sunil/-
