Ajay Pal Singh Kushwah vs Omkar Singh Pal
2021 Latest Caselaw 1727 MP

                 HIGH COURT OF MADHYA PRADESH
                       BENCH AT GWALIOR

                                    (Single Bench)

                     SECOND APPEAL NO. 902 OF 2020

Ajay Pal Singh Kushwah                                ..... APPELLANT
                                         Versus

Omkar Singh Pal & others                              .....RESPONDENTS

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CORAM

                Hon. Shri Justice Rajeev Kumar Shrivastava

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Appearance

       Shri Prashant Sharma learned counsel for the appellant.

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Whether approved for Reporting :                      No

Reserved on            :       24/03/2021
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                                  JUDGMENT

(Passed on 3rd May, 2021)

This Second Appeal has been preferred under Section 100 of Civil

Procedure Code, 1908 by the appellant against the judgment and decree

dated 28.02.2020 passed in Regular Civil Appeal No.184/2019 by XIII

Additional District Judge, Gwalior, District Gwalior, whereby judgment &

decree dated 27/09/2019 passed in Case No. 59A/2015CS by Second Civil

Judge Class-II, Gwalior, has been confirmed and the suit of the plaintiffs/

respondents has been allowed.

2. For the sake of convenience, hereinafter appellant will be referred as

defendant and respondents will be referred as plaintiffs.

3. Brief facts of the case are that a suit was filed by the plaintiffs

seeking eviction against the defendant. It was pleaded that rent was paid

(Ajay Pal Singh Kushwah Vs. Omkar Singh Pal & others)

upto April, 2010, thereafter no rent was paid. The plaintiff was in bonafide

need, therefore suit was filed. The issues were framed before the trial Court

and respective witnesses of the parties were examined. On the basis of

bonafide requirement, the suit was decreed in favour of the plaintiffs.

Against which, first appeal was preferred, which was also dismissed.

Hence, this second appeal by the appellant/ defendant.

4. Learned counsel for the appellant has submitted that the judgment &

decree by the Court below has been passed without proper appreciation of

the facts and circumstances of the case, which deserves to be set aside. It is

also submitted that opportunity of hearing was not afforded and also

bonafide requirement was not proved. It is further submitted that relevant/

important documents produced were not considered by the Courts below

and without getting the opinion of hand writing expert exhibit-P/1 has been

considered. Learned counsel for the appellant/ defendant has also

submitted that as the plaintiff was not in bonafide need, the trial Court has

not properly appreciated the application filed under Order 41 Rule 27 of

CPC and has wrongly rejected the same. Hence, prayed for admission of

this second appeal.

5. Heard learned counsel for the appellant and perused the available

record.

6. Section 100 CPC 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.

(Ajay Pal Singh Kushwah Vs. Omkar Singh Pal & others)

(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."

7. On perusal of available record, it is apparent that the First Appellate

Court has affirmed the judgment & decree passed by the trial Court and the

factum of landlord and tenant is admitted position. Omkar (PW-1),

Ashokpal (PW-2) and Amitpal (PW-3) were produced before the trial

Court along with defendant on 12/09/2019. As the defendant Ajay Pal

remained absent for his cross-examination, therefore opportunity of cross-

examination was closed.

8. The defendant had denied that tenant-deed was executed, rather he

had pleaded that he was tenant only on the basis of oral tenancy. The

defendant had also pleaded that there was no bonafide requirement. The

plaintiff has denied the aforesaid pleadings and has pleaded that there is

bonafide need of the disputed shop for the purpose of starting business of

his son. It is also proved by the plaintiff before the trial Court that

defendant is defaulter in payment of rent and the burden of proving the

genuineness of receipt was on the defendant, but the defendant had failed

(Ajay Pal Singh Kushwah Vs. Omkar Singh Pal & others)

to prove this. As no expert was produced before the trial Court, the

plaintiff along with his witnesses has specifically proved that there is

bonafide requirement and no other alternative accommodation is there for

starting the business of his son. The burden of prove was shifted towards

defendant as the defendant remained absent for his cross-examination

before the trial Court. Therefore, the First Appellate Court has rightly

affirmed the judgment & decree passed by the trial Court relying upon the

judgments passed in Mohd. Naved and others Vs. Hindustan Petroleum

Corporation [2004 (1) MPHT 16], Deshraj Singh Parmar and others

Vs. Rambabu Agrawal and others [2009 INDLAW MPLJ 3676],

Naseema Bai Vs. Jaiprakash & others [2005 (2) MPLJ 453].

9. Furthermore, the subjective choice exercised in a reasonable manner

by the landlord should normally be respected by the Court. Where the need

for additional accommodation is proved, the Court is not to dictate the

landlord to continue in the same premises. The Rent Control Legislation is

not designed to penalize the owner by disabling him from occupying own

property when bonafidely required. It is also settled law that the Courts are

not to substitute their own view with regard to the need of the landlord.

The reasonable view is required to be taken that if the landlord is in

genuine need then the Courts should not superimpose its own view with a

view to determine the reasonable need of the landlord. Only genuineness

of the need is to be seen and this need is not a static need. It varies from

time to time person to person. The appellant-tenant remained defaulter in

submission of rent with the plaintiff-landlord. The plaintiff's case of bona

fide need is proved before the trial Court as well as First Appellate Court.

(Ajay Pal Singh Kushwah Vs. Omkar Singh Pal & others)

It is up to the landlord to decide how and in what manner he should live

and is the best judge of his residential requirement. The aforesaid legal

right if based on genuine need, that should be honored.

10. In second appeal under Section 100 of CPC, the scope of exercise of

the jurisdiction by the High Court is limited to the substantial question of

law. Substantial question of law must be debatable, not previously settled

by law of the land or a binding precedent and answer to the same will have

a material bearing as to the rights of parties before the Court. Existence of

a substantial question of law is sine-qua non for the exercise of jurisdiction

under the provisions of Section 100 of CPC. The second appeal does not

lie on the ground of erroneous findings of facts based on appreciation of

the relevant evidence.

11. Further, the Hon'ble Apex Court in Karnataka Board of Wakf Vs.

Anjuman-EIsmail Madris-un-Niswan, (AIR 1999 SC 3067) has

observed that the High Court should not interfere with the concurrent

finding of fact in a routine and casual manner by substituting its subjective

satisfaction in place of lower Courts.

12. In view of the foregoing discussion, this Court is of the considered

view that since there is a concurrent finding of both the Courts below,

therefore, considering the facts and circumstances of the case as well as the

concurrent finding, I find no substantial question of law involved in the

present second appeal. Consequently, present second appeal is hereby

dismissed being devoid of merits.

(Rajeev Kumar Shrivastava) Judge Shubhankar*

SHUBHANKAR MISHRA 2021.05.03 17:06:05 +05'30'