Jharkhand High Court

Bijay Kumar Gupta vs Rajesh Choudhary on 3 April, 2025

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                                                                   2025:JHHC:10188




      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 Second Appeal No. 160 of 2024

          Bijay Kumar Gupta, aged about 58 years, son of late Jagdish Prasad
          Gupta, C/o M/s Gupta Hosiery T.G. Road, P.O. and P.S.-Sahibganj,
          District-Sahibganj, P.O. and P.S. Sahibganj, District-Sahibganj
                                             ......................Appellant


                           ... Versus....

      Rajesh Choudhary, son of late Nathmal Choudhary, resident of T.G. Road,
      P.O. and P.S. Sahibganj, District-Sahibganj
                                                  ...... Respondent

       CORAM:       HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

For the Appellant                    : Mr. Atanu Banerjee, Advocate
                                    Ms. Sugandha Khalkho, Advocate
For the Respondent                 :
                 ..........

07/Dated: 03/04/2025 Heard Mr. Atanu Banerjee, learned counsel for the appellant.

2. This second appeal has been preferred against the judgment dated

31.05.2024 and the decree dated 11.06.2024 passed in Civil Appeal No. 01/2022

whereby and whereunder the learned Principal District Judge, Sahibganj has been

pleased to dismiss the appeal upholding the judgement dated 20.01.2022 and

decree dated 02.02.2022 passed in Title Eviction Suit No. 19 of 2011 by learned

Civil Judge (Sr. Division)-I, Sahibganj.

3. As per judgment of the learned trial court as well as first appellate

court the case of the plaintiff and defendant is as follows:-

The case of the plaintiff/respondent is that the plaintiff is the owner

and landlord of the suit premises with a garment shop in the building possessed by

the defendants. The defendant Bijay Kumar Gupta is a tenant of the plaintiff with

respect to the shop premises situated in the building on a monthly rental of Rs.

1100/-, The defendant is a tenant from the plaintiff's parent's life time. It was

alleged that the rent of Rs. 1100/- of the suit premises for the month of April 2010

was paid by the defendant on 04.05.2011 but the rent of the suit premises, for the

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month of May 2010 was not paid by the defendants. It was stated that the

defendant has also not paid the rent for the months of May 2010 to July 2010

continuously for three months. The defendant is liable to be evicted from the suit

premises as he has not paid rent for the months of May 2010 to July 2010, i.e.

three months @ Rs. 1100/- per month and a total of Rs. 3300/- has became due.

The plaintiff asked several times to pay the dues rent of schedule premises, but

the defendant always pretended and avoid to pay the rent amount along with the

arrears to the defendants. Lastly the plaintiff sent a pleader notice to the

defendant to pay the dues amount of rental premises and vacate the schedule

premises due to being defaulter and also for the personal necessity of the plaintiff

as he wanted to provide that shop to his daughter for her livelihood. It was stated

that the plaintiff has four daughters out of which two become adult. They want to

do their personal business. Therefore, the schedule premises need to be vacated.

The plaintiff has also revealed his personal necessity, to open a door for his

convenience at the southern side of shop of the defendant and south east side of

the plaintiff's wall to enter the house of the plaintiff.

The defendant sent a reply to the notice dated 17.05.2011 through

his lawyer to the plaintiff, in which he has admitted his tenancy since 1985, but

denied any dues of rent on his part. By the reply dated 21.04.2011 the defendant

denied all the alleged averments of the plaintiff.

As per plaintiff, the cause of action of the suit arose on 1 July 2010

when the defendant became defaulter according to law. As the suit premises is

situated within the jurisdiction of learned Court below hence the suit was filed for

adjudication. The suit was valued at Rs. 13,200/- for the purpose of jurisdiction

being the value of 12 months of rent @ Rs. 1100/- per month and the suit was

also valued at Rs. 14,300/- for the purpose of realization of arrears of rent.

Accordingly the court fee was paid, and the suit was filed and admitted.

4. The case of the defendant/appellant is that the defendant contested

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the suit by filing his W/S and raised several legal pleas regarding non-

maintainability of the suit. It was stated that the suit as framed is not

maintainable. The plaintiff has no cause of action for the suit and the cause of

action, as alleged, is imaginary and concocted. It was admitted that the tenancy

was created in favour of the defendant in the year 1985 by the late adoptive father

of the plaintiff and the rent was settled at Rs.450/- per month according to the

months of English Calendar. The said rent was enhanced from time to time and

last paid rent was Rs. 1100/- P.M. It was further stated that the defendant has

never defaulted in payment of rent. He used to make payment of rent of the suit

premises in the first week of every succeeding month. It was stated that the rent

of April, 2010 was paid on 04.05.2011. The rent receipt granted by the plaintiff in

token of payment of rent for the month of April, 2010 is dated 04.05.2010.

Thereafter the rent of the suit premises was paid regularly to the plaintiff from

May, 2010 to March, 2011 each and every month but no receipt was granted by

the plaintiff at the time of accepting payment of rent. It was further stated that a

pleader's notice dated 21.04.2011 was sent by the plaintiff asking him to vacate on

the ground of being defaulter. The defendant sent his reply to the said notice

through his lawyer. It was further stated that the plaintiff was in a habit of

granting rent receipt for 5-6 months at one time, though he used to collect rent of

the suit premises from the defendant in each and every month regularly. The rent

paid for the period from May, 2010 to March, 2011 has already been entered in the

books of account, on the day, it was paid. Return for the assessment year 2011-12

covering the period from 01-04-2010 to 31.03.2011 has already been submitted to

the Income Tax Authority, in which shop rent amounting Rs. 13,020.00 has been

shown to have paid. It was further stated that the plea of personal necessity is a

sheer pretense of the plaintiff. He has no bonafide requirement of the suit

premises as his daughters are pursuing their carriers. It was further stated that the

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defendant has no other source of income except the suit premises from where the

defendant earns the bread for his family members. In view of the submissions the

suit was prayed to be dismissed with exemplary costs.

5. Mr. Atanu Banerjee, learned counsel for the appellant submits that

there is law point involved in this second appeal in view of that appeal may

kindly be admitted. He submits that both the courts have not discussed the

evidences and inspite of that decree has been passed which is against the

mandate of law. He further submits that bonafide personal necessity was not

proved before the learned court inspite of that the learned courts have passed

order. He draws the attention of the Court to Section 11 (1) (c) of Jharkhand

Buildings (Lease, Rent and Eviction) Control Act, 2000 and submits that bonafide

has to be proved. According to him even Section 11 (1) (d) of Jharkhand Buildings

(Lease, Rent and Eviction) Control Act, 2000 has not been appreciated in correct

perspective and inspite of payment of rent it was wrongly held by both the courts

that rent was due for three months and in view of that law point is involved with

regard to Section 11 (1) (c) and (d) of Jharkhand Buildings (Lease, Rent and

Eviction) Control Act, 2000. He submits that both the courts have erred on these

law points in view of that this second appeal may kindly be admitted on the

substantial question of law.

6. The Title (Eviction) Suit No. 19 of 2011 was instituted for eviction of

suit property mentioned in schedule A of the plaint. The building situated in T.G.

road bearing holding no. 37, ward no. 12 of mouza Sahibganj Kakrotiya, J.B. no.

565 in encircled by road in north sided, municipal state in east side house of the

plaintiff in west side.

7. The said title suit was decided by the learned Civil Judge (Sr.

Division)-I, Sahibganj by judgment dated 20.01.2022 whereby the learned court

has been pleased to decree the suit in favour of the plaintiff and aggrieved with

the said judgment, the appellant herein moved before the First Appellate Court in

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Civil Appeal No. 01 of 2022 which has been decided by judgment dated

31.05.2024 whereby the learned First Appellate Court has been pleased to dismiss

the appeal and upheld the judgment of the learned trial court.

8. The learned trial court has framed five issues to decide the suit. The

learned trial court has appreciated the documentary evidences as well as

pleadings of both the parties and has found that the landlord and tenant

relationship is not disputed in view of the fact that the plaintiff has stated in para

2 and 3 of the plaint and in para 4 of the written statement the defendant has

also admitted. In view of that the learned court appreciating further exhibits has

come to the conclusion that the landlord and tenant relationship has been proved.

Learned court has further appreciated the arguments and considered the exhibits

and found that the plaintiff is having four unmarried daughters and for their

existence said shop was required and in view of that the learned court has come

to the conclusion that personal necessity has been proved. Nothing contradictory

has been shown by the appellant herein to suggest that bonafide personal

necessity was not there. The learned trial court further appreciated the Exhibit B

series which are rent receipts for the month of April, 2010 and found that for the

one month two rent receipts have been issued as Exhibit B and B/2 for the month

of April, 2010 and the defendant has not disclosed before the learned court how

two rent receipts have been issued and in view of that the learned court doubted

the evidences of the said exhibits. The learned court has further found that even

through oral evidence the defendant has failed to establish the fact that for three

consecutives months (May, June and July, 2010) has actually been paid to the

plaintiff. In view of that the learned court has found that rider in the light of

section 11 (1) (d) of Jharkhand Buildings (Lease, Rent and Eviction) Control, Act

is proved and thereafter the learned court has passed the decree in favour of the

plaintiff.

9. The First Appellate Court framed points to decide the appeal. One of

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the ground was before the First Appellate Court that suit was maintainable before

the S.D.O. however, it has been decided by the learned Civil Judge (Senior

Division)-I in view of that it is against the Jharkhand Buildings (Lease, Rent and

Eviction) Control, Act , 2000. The learned First Appellate Court has found that with

regard to said Act the cut off date is 15.04.2015 as notified by the notification of

Urban Development and Housing Department vide gazette notification issued by

the State Government dated 16.05.2016 in view of said gazette it is clear that all

subsequent proceedings arising out of order/judgment shall be governed under

the new Act and not the previously instituted proceedings and the suit was of the

year, 2011 in view of that argument of the appellant was negated by the First

Appellate Court. There is no perversity in the said finding of the learned First

Appellate Court.

10. Learned First Appellate Court has further appreciated the arguments

and evidences with regard to compliance of Section 11 (1) (c) and 11 (1) (d) of

Jharkhand Buildings (Lease, Rent and Eviction) Control, Act, 1982/2000 and the

learned First Appellate Court has found that the defendant/appellant has produced

exhibit B series but among these the rent payment receipts of the month of May,

June and July, 2010 is not there and the case of the respondent/plaintiff was

constant of due rent for the month of May to July, 2010 and in view of that the

learned First Appellate Court has found that requirement of 11 (1) (d) of

Jharkhand Buildings (Lease, Rent and Eviction) Control, Act has been fulfilled. So

far the personal necessity is concerned, the learned First Appellate Court has

considered the evidences of plaintiff. Plaintiff witness nos. 3 and 4 have supported

the case regarding personal necessity as pleaded in the plaint and in cross

examination the fact that daughters of the plaintiff are still unemployed, could not

be dislodged by the defendant and in view of that personal necessity has also

been proved by the respondent/plaintiff before the learned First Appellate Court.

11. Thus, both the courts were constant on the facts and concurrent

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findings are there.

12. Second appeal can be filed only if the substantial question of law is

involved. It is not within the domain of the High Court to investigate the grounds

on which the findings were arrived at and in this regard reference may be made to

the case of " Kondiba Dagadu Kadam V. Savitribai Sopan Gujar reported in

(1999) 3 SCC 722 wherein para 3 to 6 it has been held as under:-

"3. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence.

5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.

6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey [(1976) 1 SCC 803 : AIR 1976 SC 830] held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference."

13. In view of above findings of the learned courts, the Court finds

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that there is no perversity in the judgments of the learned trial court as well as

learned first appellate court. There is concurrent findings of two courts.

14. In view of the above discussions the Court finds that what has

been argued by the learned counsel for the appellant with regard to admission of

the second appeal is not made out.

15. In view of the above facts, reasons and analysis there is no

perversity in the judgment of both the courts and in absence of perversity, sitting

under section 100 of the C.P.C., the High Court is not required to admit this second

appeal in absence of any substantial question of law and accordingly, this second

appeal is dismissed. Pending, I.A., if any, stands disposed of.