Sheel Chand
Vs. Prakash Chand [1998] INSC 442 (1 September 1998)
A.S.Anand,
B.N.Kirpal
ACT:
HEAD NOTE:
O R D
E R
This
appeal by special leave is directed against the judgment of the High Court
dated 13th September,
1996.
Appellant
is the tenant. Respondent is the landlord. The premises had been let out by the
predecessor-in-interest of the present respondent-landlord in 1968. The suit
for eviction was filed against the tenant by the respondent-landlord on various
grounds including the ground that he required the suit premises for his bona
fide personal need for starting his business. It was the case of the respondent
- landlord that though he was an advocate, he wanted the suit shop for starting
his business of a 'General Store' as he did not intend to practice law. The
suit was resisted. The trial court after framing issues and recording evidence
came to the conclusion that the need of the landlord was not genuine or bonafide.
The suit was dismissed. Landlord's appeal before the appellate authority failed
and the finding recorded by the trial court of the effect that the need of the
landlord was not bona fide or genuine was confirmed. The landlord thereupon
filed a second appeal in the High Court. By the impugned order the concurrent
findings of fact were set aside by the learned Single of the High Court in
second appeal.
We
have heard learned counsel for the parties.
The
learned Single Judge while admitting the second appeal under Section 100 CPC
framed the following question of law:- 'Whether the finding relating to bonafide
requirement of the appellant of the Courts below is vitiated due to irrelevant
consideration and under law?' In Panchugopal Barua vs. Umesh Chandra Goswami :
(1997)
4 SCC 713 to which one of us (Anand, J.) was a party explaining the scope of
Section 100 CPC, it was observed :- "7. A bare look at Section 100 CPC
shows that the jurisdiction of the High Court to entertain a second appeal
after the 1976 Amendment is confined only to such appeals as involve a
substantial question of law, specifically set out in the memorandum of appeal
and formulated by the High Court. Of course, the proviso the section shows that
nothing 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 the court is satisfied that the case involves
such a question. The proviso presupposes that the court shall indicate in its
order the substantial question of law which it proposes to decide even if such
substantial question of law was not earlier formulated by it. The existence of
a 'substantial question of law' is thus, the sine qua non for the exercise of
the jurisdiction under the amended provisions of Section 100 CPC." The
above judgment was approved by a three Judge Bench of this Court in Kahitish
Chandra Purakait vs. Santosh Kumar Purkaji and others : (1997) 5 SCC 438
wherein it was held :-
"10
We would only add that
(a) it
is the duty cast upon the High Court to formulate the substantial question of
law involved in the case even at the initial stage; and
(b)
that in (exceptional) cases, at a later point of time, when the Court exercises
its jurisdiction under the proviso to sub-section(5) of Section 100 CPC in
formulating the substantial question of law, the opposite party should be put
on notice thereon and should be given a fair or proper opportunity to meet the
point. Proceeding to hear the appeal without formulating the substantial
question of law involved in the appeal is illegal and is an abnegation or
abdication of the duty cast on court; and even after the formulation of the
substantial question of law, if a fair or proper opportunity is not afforded to
the opposite side, it will amount to denial of natural justice. The above
parameters within which the High Court has to exercise its jurisdiction under
Section 100 CPC should always be borne in mind. We are sorry to state that the
above aspects are seldom borne in mind in many cases and second appeals are
entertained and/or disposed of, without conforming to the above
discipline." The question of law formulated by the learned Single Judge,
noticed above, strictly speaking is not even a question of law, let alone a
substantial question of law.
The
existence of a substantial question of law. The existence of a 'substantial
question of law', is the sine qua non for the exercise of jurisdiction by the
High Court under the amended provisions of Section 100 CPC. It appears that the
learned Single Judge over looked the change brought about to Section 100 CPC by
the Amendment made in 1976. The High Court unjustifiably interfered with pure
questions of fact while exercising jurisdiction under Section 100 CPC.
It was
not proper for the learned Single Judge to have reversed the concurrent
findings of fact while exercising jurisdiction under Section 100 CPC. That
apart, we find that the learned Single Judge did not even notice, let alone
answer the question of law which had been formulated by it at the time of
admission of the second appeal. There is no reference to the question of law in
the impugned order and it appears that the High Court thought that it was
dealing with a first appeal and not a second appeal under Section 100 CPC. The
findings of fact recorded by the two courts below were based on proper
appreciation of evidence and the material on the record. There was no
perversity, illegality or irregularity in those findings. None has been brought
to our notice by the learned counsel for the respondent either.
The
findings, therefore, did not require to be upset in a second appeal under
Section 100 CPC. The judgment of the learned Single Judge, under the
circumstances, cannot be sustained. This appeal consequently succeeds and is
allowed. The judgment and order of the High Court dated 13th Sept. 1996 is set
aside. As a result, the eviction suit filed by the landlord shall stand
dismissed. No costs.
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