Babu Lal vs Smt Usha
2022 Latest Caselaw 2939 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR
               S.B. Civil Second Appeal No. 276/2001
Shri Babu Lal Vishwa s/o Shri Bachu Lal vishwa, age about 89 years,
r/o 29/539, Sabji Mandi, Kesar ganj, Ajmer.

                          (Died during Pendency of Appeal)
     1. Shri Pramod Kumar vishwa, s/o Shri Babu Lal Vishwa, age
about 45 years, r/o 29/539, Sabji Mandi, Kesar Ganj, Ajmer.

                           (Died during Pendency of Appeal)
     1/1 Pratima Vishwa W/o Shri Pramod Kumar Vishwa age
about 45              years, r/o 29/539, Sabji Mandi, Kesar Ganj,
Ajmer.

      1/2 Alka Vishwa D/o Shri Pramod Kumar Vishwa age about 24
      years,                r/o 29/539, Sabji Mandi, Kesar Ganj,
      Ajmer.

     1/3 Abhinav Vishwa s/o Shri Pramod Kumar Vishwa age
     about 45 years, r/o 29/539, Sabji Mandi, Kesar Ganj,
     Ajmer.

2. Neeti Vishwa W/o Late Shri Asok Kumar Vishwa R/o

   29/539, Sabji Mandi, Kesar Ganj, Ajmer.

3. Anurag Vishwa S/o Late Shri Asok Kumar Vishwa R/o 29/539, Sabji
Mandi, Kesar Ganj, Ajmer.

4. Shalini Vishwa D/o Late Shri Asok Kumar Vishwa R/o 29/539, Sabji
         Mandi, Kesar Ganj, Ajmer.

                                               ....Defendant-Appellants
                                   Versus

1. Smt. Usha Jain, W/o Shri Ashok Kumar Jain, R/o A-29, Namakdar,
Ajmer, Rajasthan.
                                       ....Plaintiff-Respondent

2. Shanti Devi W/o Shri Chandra Kant R/o Jodhpur.

3. Ashish S/o Shri Chandra Kant, R/o C/o Govt. Secendory School, Bhim, Rajsamand.

4. Manish, S/o Shri Chandra Kant, R/o A/303, Sagun Apartment, Near Tube Well, Bapal, Ahamdabad.

5. Smt. urmila, W/o Late Shri Santosh, R/o 197, K S Rathore Vikas Nagar-B, Krishi Upaj Mandi, Jabalpur.

6. Smt. Krishna Sharma D/o Shri Babu Lal Vishwa, W/o Shri Harish Chandra, R/o 91, Dama Naka, Jabalpur.

7. Archana Sharma D/o Shri Babu Lal Vishwa, W/o Shri Sohan Lal, R/o 3 Malviya Nagar, Jaipur.

8. Shweta Sharma D/o Anil Sharma, R/o Jabalpur.

9. Rinku Sharma D/o Anil Sharma, R/o Jabalpur

....Performa-Respondetns

(2 of 3) [CSA-276/2001]

For Appellant(s) : Mr. Akash Agarwal For Respondent(s) :

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

07/04/2022

This second appeal arises against the decree for eviction

passed in an eviction suit led on 29.03.1994.

It appears from the record that the rented premise was let

out for residential purpose, however, the tenant started to use it

for commercial purpose also, therefore, the eviction decree has

been passed under Section 13(1)(d) of the Rajasthan Premise

(Control and Rent eviction) Act, 1950 by the trial court vide

judgment dated 25.09.1996. The judgment of eviction has been

affirmed in first appeal vide judgment and decree dated

30.03.2001.

This second appeal is pending before this Court since 2001

and was admitted for hearing on 14.02.2005 for consideration of

substantial questions of law framed by this court.

By perusal of the impugned judgments and record, it reveals

that both courts have passed the decree for eviction on

appreciation of pleadings, evidence and material available on

record.

The substantial questions of law, which fall for consideration

are basically not in the nature of substantial questions of law but

requires re-appreciation of evidence to appreciate the same.

It is a trite law that while exercising the powers by High

Court under Section 100 CPC, re-appreciation of evidence for the

purpose of drawing a different conclusion other than recorded by

(3 of 3) [CSA-276/2001]

two courts of fact findings, is not permissible. In the case of

Umerkhan Vs. Bismillabi [(2011) 9 SCC 684] Hon'ble the

Supreme Court has propounded that if a second appeal is

admitted on substantial questions of law, while hearing second

appeal finally, can re-frame substantial question of law or can

frame substantial question of law afresh or even can hold that no

substantial question of law involved, but the High Court cannot

exercise its jurisdiction of Section 100 CPC without formulating

substantial question of law.

However, during course of arguments, it has transpired that

appellants have already vacated the rented premise.

Since the rented premise has already been vacated it is not

required to adjudicate the subsantial questions of law on merits

and the appeal itself become infructuous.

Accordingly, the second appeal is dismissed as having

become infructuous.

Stay application and any other pending application(s), if any,

stand(s) disposed of.

(SUDESH BANSAL),J

SACHIN/102

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