Rajasthan High Court
Brajendra Singh vs Madho Singh And Ors on 25 April, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 861/2007
1. Brajendra Singh @ Vijjo S/o Shri Mool Chand Deceased
1/1. Smt. Maya Devi W/o Late Shri Brajendra Singh
1/2. Raghuraj S/o Late Shri Brajendra Singh
1/3. Sanjay S/o Late Shri Brajendra Singh
1/4. Sonu @ Deshraj S/o Late Shri Brajendra Singh
1/5. Ku. Sarita Minor D/o Late Shri Brajendra Singh Through
Natural Guardian Mother Smt. Maya Devi W/o Late Brajendra
Singh,
All Resident of near Manahar Market, Kumher Gate, Bharatpur
----Appellants
Versus
1. Madho Singh S/o Shri Babu Lal by caste Mahajan, Kotwali
Bazar, Bharatpur (Deceased) through His Lrs-
1/1. Smt. Sheela Devi W/o Late Shri Madho Singh
1/2. Vijay Singh S/o Shri Madho Singh, resident of E-445, Ranjeet
Nagar, Bharatpur
1/3. Om Prakash S/o Late Shri Madho Singh, resident of Near
Unnithan Farm House, Jagarpura, Jaipur
1/4. Prem Singh S/o Late Madho Singh, resident of Ganesh Video
Center, Kanota, Jaipur
1/5. Laxmi Narain S/o Late Shri Madho Singh, resident of Near
Kotwali, Bharatpur
1/6. Heera Lal S/o Late Madho Singh, resident of Near Kotwali,
Bharatpur
1/7. Panna Lal S/o Late Madho Singh, resident of Near Kotwali,
Bharatpur
1/8. Kiran Devi W/o Shri Devendra Kumar Verma D/o Late Shri
Madho Singh, resident of Out side Delhi Gate, Near Wine
Store, Alwar
1/9. Gayatri Devi W/o Shri Jugal Kishore Jayaswal, D/o Late Shri
Madho Singh, resident of Jai Lal Munsi Ka Rasta, Fifth
Crossing, Chandpole Jaipur
----Respondents
For Appellant(s) : Mr. Bipin Gupta
For Respondent(s) : Mr. H.S. Bikarwar
Mr. B.R. Rana
(Downloaded on 25/04/2022 at 10:15:04 PM)
(2 of 10) [CSA-861/2007]
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
JUDGMENT RESERVED ON : 20/04/2022
JUDGMENT PRONOUNCED ON : April _25th_, 2022
BY THE COURT:
The appellant-defendant-tenant (hereafter `the tenant')
have preferred this second appeal assailing the judgment and
decree dated 20-9-2007 passed by the Additional District Judge
No.2, Bharatpur in first appeal No.62/1997 allowing appeal
reversed the judgment dated 13-2-1997 passed by the Additional
Civil Judge (Junior Division) No.1, Bharatpur in civil suit
No.76/1991 and decreed the suit for eviction of tenant from shop
in question and fixed the mesne profits Rs.140/- per month.
2. Facts as culled out from the record are that respondent-
plaintiff-landlord (hereafter `the landlord') filed a suit on 31-5-
1988 for eviction of tenant stating therein that shop in question
was in tenancy of the tenant defendant No.1 Brijendra Singh @
Bijjo from the time of erstwhile landlord Ganpat Singh on a rent of
Rs.140/- per month, which was purchased by landlord through
registered sale deed dated 10-12-1986 of which information was
given to tenant 24-1-1987. It was pleaded that the tenant did not
pay rent from 1-12-1986 as such he committed default in
payment of rent. It was pleaded that the shop in question was
bonafidely needed for his son Laxmi Narayan for Kirana-shop as
he was jobless. It was stated that notice dated 3-12-1987 was
given to tenant mentioning therein the issue of default and
bonafide need of shop for plaintiff's son. The notice was received
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by the tenant on 4-12-1987. It was further pleaded that after
receipt of notice the defendant No.1 sublet the shop to defendant
No.2 and deposited the rent in court under Section 19A of the
Rajasthan Premises (Control of Rent & Eviction) Act, 1950. As the
defendant No.1 denied to admit the plaintiff as landlord therefore
he is liable to be evicted from the shop. Rs.2380/- for rent of 17
months was claimed to be recovered.
3. On service of notice, the defendant No.1 filed written
statement and denied the facts mentioned in plaint. It was stated
that the property shown in the ownership of Vimla Devi, Sheela
Devi and Vijay Singh, all properties belonged to plaintiff and these
persons were family members of plaintiff and they are residing
together. The shop in western side, house in northern side, three
shops and hall on their roof were vacant and in possession of
plaintiff. The hall was got vacated from Amarchand Jain after filing
the suit. It was pleaded that alleged sale-deed was to be proved
by plaintiff. Receipt of notice dated 24-1-1987 was denied. The
allegation of default was denied and submitted that rent was sent
to erstwhile landlord Ganpat Singh through Money Order, who did
not receive the Money Order, but he did not tell about sell of shop
in question. The plaintiff also did not raise demand for the rent
after 24-1-1987. On receipt of notice dated 3-12-1987 the plaintiff
sent the due rent through Money Order to plaintiff, but he refused
therefore the defendant No.1 deposit the rent in court under
Section 19A of the Rent Act. The defendant No.1 was always ready
and willing to pay the rent but he did not receive malafidely just to
prove the defendant No.1 to be defaulter. It was pleaded that
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plaintiff's son Laxmi Narayan was not jobless, nor he was having
any experience of kirana-shop. However, plaintiff has other vacant
shop in his possession. After the notice dated 3-12-1987 the
plaintiff demand to increase the rent as Rs.300/-, to which the
defendant No.1 denied therefore the plaintiff has filed the suit
alleging him to be defaulter. Alleged sub-tenant Bali Chand was
servant of defendant No.1 as the tenant was doing business in
shop in question of tea- restaurant, ice and beetle sell for last
fifteen years.
4. Defendant No.2 filed separate written statement and denied
the facts of plaint and stated that suit was wrongly filed just to
harass defendants. As defendant No.2 was wrongly impleaded in
suit he claimed compensation of Rs.1000/-.
5. On basis of pleadings of parties, eight issues were framed.
Subsequently Issue No.5 and 6 were not press by plaintiff's
Advocate. Plaintiff examined himself as Pw.1 and three other
witnesses and exhibited documents. Defendant No.1 examined
himself as Dw.1 and three other witnesses and exhibited
documents.
6. The trial court considering evidence of both parties decided
issues No.1 to 4 against the plaintiff and the issue No.7 in favour
of defendants and awarded compensation of Rs.500/- to both
defendants vide judgment dated 13-2-1997.
7. On filing first appeal by the plaintiff, the appellate court
considered the case. Issue No.1 regarding default by defendant
and No.2 regarding rent due from 1-12-1986, were considered
jointly and holding that the defendant after receipt notice did wait
(5 of 10) [CSA-861/2007]
for 10-15 days and sent Money Order which was refused by
plaintiff, but the defendant did not try to know the bank account of
plaintiff and proceeded to deposit the rent in court under Section
19A of the Rent Act. Thus the defendant committed default in
payment of rent for more than six months, however, benefit of
first default has been extended in favour of tenant and decided
both issues No.1&2 in favour of plaintiff. Similarly, issue No.3
regarding bonafide need of shop for plaintiff's son Laxmi Narayan
and No.4 the comparative hardship in case of not vacating shop to
plaintiff or defendant were considered jointly and considering the
fact of plaintiff's son being jobless decided both issues in favour of
plaintiff.
The issue No.7 regarding compensation was decided in
favour of plaintiff and against defendant. Issue No.8 regarding
default in payment of rent for more than six months, in view of
decision of issues 1and 2 in favour of plaintiff decided against
defendant, however, benefit of default under Section 13(6) of the
Rent Act was extended. And in view of decision of issues No.3&4
in favour of plaintiff passed the decree for eviction against the
defendant.
8. Hence, this second appeal.
9. Heard learned counsel for parties and perused impugned
judgments passed by courts below.
10. Counsel for tenant filed written submissions and has
vehemently argued and prayed for setting aside the judgment
passed by appellate court. Reliance has been placed on Fakir
Mohd. Vs. Sita Ram [AIR 2002 SC 433] to contend that
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"depositing rent in court should be proceeded by tenant having
adopted one of the two methods of payment i.e. either by
remittance by postal money order or by depositing in bank
account". It has been submitted that when the tenant after
sending money order on refusal deposited the same in court he
cannot be treated in default and the issue in this regard, reversing
the decision of trial court, has been wrongly decided by the first
appellate court against the tenant.
Reliance has also been placed on Amarjit Singh Vs. Smt.
Khatoon Quamarain [AIR 1987 SC 741], S.J. Ebenezer Vs.
Velayudhan [AIR 1998 SC 746], Deena Nath Vs. Pooran Lal
[AIR 2001 SC 2655] to contend that "need of landlord should be
bonafide and reasonable one and not mere desire". Judgments in
case of Raj Rani Sharma Vs. Sumer Segal [AIR Online 2018
Del. 3222], Smt. Annapurna Dei Vs. Akbar Patel [AIR 1974
Orissa 162] and The Dollar Company, Madras Vs. Collector
of Madras [AIR 1975 SC 1670] have been relied to contend
that "if findings recorded by trial court is a possible view then first
appellate court should not interfere with said findings".
11. Counsel for respondent landlord filed written submissions
and supported the impugned judgment passed by the first
appellate court and prayed for dismissal of appeal. He further
submitted that tenant placed on record a document of purchase of
another shop by landlord during pendency of suit, to which
learned court has held that in the said shop tenancy was 50 years
old therefore the landlord was in bonafide need of suit shop.
Reliance has been placed on various judgments.
(7 of 10) [CSA-861/2007]
12. In case of Santosh Hazari Vs. Purushottam Tiwari
[(2001)3 SCC 179] the Apex court held that "while reversing a
finding of fact the appellate court must assign its own reasons for
arriving at a different finding. An additional obligation has been
cast on the first appellate court by the scheme of the present
Section 100 substituted in the Code. The first appellate court
continues, as before, to be a final court of facts; pure findings of
fact remain immune from challenge before the High Court in
second appeal. Now the first appellate court is also a final court of
law in the sense that its decision on a question of law even if
erroneous may not be vulnerable before the High Court in second
appeal because the jurisdiction of the High Court has now ceased
to be available to correct the errors of law or the erroneous
findings of the first appellate court even on questions of law unless
such question of law be a substantial one."
13. In case of State Bank of India Vs. Emmsons
International Limited [(2011)12 SCC 174] the Apex Court
held that "first appellate court is required to consider all issues of
fact and law before setting aside judgment of trial court. First
appellate court is required to address itself to said issue which had
bearing on final outcome of the case".
14. In case of Jagannath Vs. Arulappa [(2005)12 SCC 303]
the Apex Court held that "court of first appeal can re-appreciate
the entire evidence and come to a different conclusion from trial
court".
(8 of 10) [CSA-861/2007]
15. In case of Kondiba Dagadu Kadam Vs. Savitribai Sopan
Gurjar [(1999)3 SCC 722] the Apex Court held that "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".
16. In case of Arumugham Vs. Sundarambal [JT 1994 (4)
SC 464] the Apex Court has held that "the first appellate court is
entitled to consider the evidence adduced by the parties and give
its own reasons for accepting that of on one side or the other, and
that it is not permissible for the second appellate court to interfere
with such findings of facts by the first appellate court".
17. A perusal of the impugned judgment passed by the first
appellate court shows that after due appreciation of evidence oral
and documentary the first appellate court has given its own
findings on each issues. The first appellate court considering
evidence of parties has come to a just finding regarding bonafide
and reasonable necessity of shop in question to appellant and has
rightly reversed the said findings of trial court. The first appellate
court after due appreciation of evidence oral and documentary has
decided the issue of bonafide and reasonable necessity in favour
of plaintiff landlord. The first appellate court, being final court of
(9 of 10) [CSA-861/2007]
facts and law, has not committed any illegality in reversing the
finding of the trial court.
18. In view of discussion of case law hereinabove, judgments
relied upon by counsel for appellant tenant are of no help to him.
19. As far as findings of first appellate court on the issue of
default in payment of rent by tenant is concerned, the first
appellate court has granted benefit of first default under Section
13(6) of the Rent Act and has not passed any decree for eviction
on the ground of default. Though, this court prima facie finds that
findings of default passed by first appellate court are not
sustainable in view of judgment of the Apex Court in case of Fakir
Mohd. (supra) as the tenant had deposited the rent under Section
19A of the Rent Act after refusal money order by landlord.
However, this court is not inclined to decide this issue afresh.
Firstly, no decree for eviction has been passed on the ground of
default, Secondly, the decree for eviction has been passed on
ground of bonafide and personal necessity, which has been
affirmed by this court. Hence, the issue relating to declaring the
tenant as first defaulter remains of academic importance, and no
fruitful purpose would be served, even if findings of first default
are declared as incorrect.
20. The scope of second appeal is confined to examine substantial
question of law, which are sine qua non to exercise powers under
Section 100 of CPC. In case of Umerkhan Vs. Bismillabi
[(2011)9 SCC 684] Hon'ble Supreme Court has propounded that
"if a second appeal is admitted on substantial question of law,
while hearing second appeal finally, can re-frame substantial
question of law or can frame substantial question of law afresh or
(10 of 10) [CSA-861/2007]
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".
21. It is a case where no substantial question of law involved as
there is no perversity or material irregularity/ infirmity in the
judgment passed by the first appellate court. Accordingly, the
second appeal is not liable to succeed. Consequently, the same is
hereby dismissed.
22. Stay application and any other pending application(s), if any,
also stand(s) disposed of.
23. Since the appellant is tenant in the shop in question since
long, prior to 1986, three months time is granted to the appellant
to vacate and hand over peaceful possession to the respondent
landlord, subject to payment of due arrears of rent, as mesne
profits, if any.
(SUDESH BANSAL),J
Arn/139
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