Hari Singh Vs. Kanhaiya Lal [1999] INSC
320 (7 September 1999)
A.P.Misra, N.Santosh Hegde
J U D G E M E N T
MISRA, J.
The issue raised in this appeal arises under
the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter
referred to as the Act). The appellant is the landlord and respondent the
tenant. The question raised by the appellant is, whether the High Court was
right in setting aside the concurrent finding of facts in second appeal? In
other words, whether there existed any substantial question of law and the High
Court without framing any substantial question of law was justified in
interfering with the concurrent finding of both the courts below? The appellant
also challenges that part of the order of the High Court confirming the first
appellates court order which holds no default in payment of rent by the
respondent. In short, the suit of the landlord was for the eviction of the
respondent on grounds of default in payment of rent, sub-letting of the
premises in question and creating nuisance which was decreed. The appellate
court confirmed the finding of sub-letting and nuisance but set aside the
finding of default. In second appeal the High Court confirmed first appellate
court finding that there is no default but set aside the concurrent findings
that the respondent sub-letted the premises and created a nuisance.
In order to appreciate the controversy raised
we deliver the following short facts.
The respondent took two shops and one godown
along with Chabutra being a portion of House No.2131, Subji Mandi, Johri Bazar,
Jaipur, at a monthly rent of Rs.45 per month with Rs 5 per month for water
charges. The case of the appellant-landlord is that respondent sub-letted one
of the shops to one Mohd. Ishaq and sub- letted the godown to one Hamid. This
apart, he failed to pay the rent for a period of about 2 years and 11 months
totalling Rs 1750/-. He also blocked the 11 feet wide entrance which is the
only passage for the appellant for going to his residence by placing the bags
of onion and other vegetables on both the side of the passage. In fact it
blocks about 8 feet passage leaving hardly 3 feet which is causing serious
nuisance to the appellant. On 15th February, 1977 a notice was served on the
respondent followed by filing a suit on 12th January, 1978 for eviction from
the said premises on the ground of default in payment of rent, sub-letting and
nuisance.
Within one week on 19th January, 1978 the
appellant also filed another suit for fixation of standard rent under Section 6
of the aforesaid Act. On 3rd May, 1978 the trial court in the later suit fixed
provisional standard rent at Rs. 100 per month under Section 7 of the said Act
w.e.f.12th January, 1978. The respondent as a consequence of the same deposited
rent at the said rate for the period 12th January, 1978 to 16th September,
1978. However, the respondent defaulted in paying the rent at this rate for a
period subsequent to 17th September, 1978. This fact was incorporated in the
plaint through an amendment to his plaint which was allowed and the same was
incorporated as para 5 (A) of the said plaint. This amendment pleads default of
payment of rent for a period subsequent to the said provisional fixation of
rent and consequential liability for eviction under Section 7 (4) of the Act.
According to the respondent, the trial court
on 13th April, 1978 determined the provisional rent at Rs. 45 per month under
Section 13(3) of the said Act hence determination of provisional standard rent
under Section 7 on 3rd May, 1978 would only means fresh redetermination or
modification of the amount payable under Section 13 (3) has to be made before
consequence of eviction is to be implemented. On the other hand counsel for the
appellant stressed that the trial court struck out the defence of the respondent
under section 13(5) on account of his failure to deposit provisional rent as
fixed under Section 7. The appeal against this was also dismissed by the
appellate authority on 5th August, 1983. Even revision petition was also
dismissed by the High Court on 18th February, 1987.
Thus this order became final as it was not
challenged before this Court. Repelling this submission of finality, learned
counsel for the respondent submits that the revisional order itself left the
matter open to be raised later, hence there was no need to challenge the
revisional order. Reliance is placed on the following observations in the said
revisional order:
I am of the opinion that the various
questions and issues raised before this court in revision under Section 115
C.P.C. deserves to be decided in an appeal finally if it becomes necessary to
file the same by the tenant. .
Any adverse order is passed against him
earlier which is appealable then these complication questions of facts and law,
calculations promotions and combination of Hindi and English calendar months,
can be decided there in appeal.
The trial court finally decreed the suit for
eviction by holding that the respondent had committed default in payment of
rent w.e.f. Vaisakh Bud Akum Sambat 2032 till date of filing of suit, he had
also sub-letted the premises and created nuisance in the entry passage for the
plaintiff-landlord. The appellate authority dismissed the appeal of the
respondent by upholding his eviction on the ground of nuisance and sub-letting
under Sections 13(1)(d) and 13(1)(e) respectively, but set aside finding of
default under Section 13 (1)(a). The appellant challenges this setting aside
part, which according to him is unsustainable, as earlier the defence of the
respondent was struck off under Section 13 (5) of the Act on this very ground
of default. The submission is, the appellate court misconstrued the provisions
of Section 7(4) of the said Act.
Finally, the High Court in second appeal set
aside the concurrent findings recorded by both the courts below and directed
the appellant to restore possession of the suit premises to the respondent. The
grounds on which the High Court interfered is that specific details had not
been incorporated in the pleading and the finding is against and contrary to
the evidence on record. The finding of the appellate court, of no default by
the respondent is not disturbed.
Learned counsel for the appellant has
challenged this impugned order firstly on the ground that neither any
substantial question of law has been framed nor it arises in the present case,
hence, interference in the second appeal under Section 100 CPC was without
jurisdiction and secondly the High Court should have set aside that part of the
order of the appellate court which holds no default as admittedly the
respondent committed default in not paying rent as provisionally fixed under
Section 7. This default under Section 7 (4) is by itself sufficient for the
eviction of the respondent.
On the other hand, learned counsel for the
respondent submits with vehemence that admittedly the present suit for eviction
is based on arrears of rent at the rate of Rs. 45 per month as per prayer in
the plaint, and in spite of amendment by introducing para 5 (A), as aforesaid,
no corresponding amendment is made to the prayer. Hence eviction for default
could only be if there be default in not making payment at the rate of Rs.45
per month and not on account of fixation of provisional standard rent at the
rate of Rs.100 per month. He also submits once order dated 13th April, 1978 was
passed under Section 13(3) which fixes the amount payable by the tenant for the
default, no other amount including the amount as enhanced by fixation of
provisional rent under Section 7 could be constituted to be an amount, for
which respondent could be evicted unless this order dated 13th April, 1978 is
modified. So far setting aside the concurrent findings on sub-letting and
causing nuisance it is submitted that the High Court has given good reasons for
the same.
The question of interference by the High
Court in second appeal, its principle stands settled by catena of decisions of
this Court. The jurisdiction of courts in first appeals, second appeals or
revisions are all, to the extent conferred by the legislature. No litigant
possesses any natural or inherent right to appeal against any order, unless a
statute confers and it is to the extent it is conferred. Thus area to challenge
is also hedged by the legislature hence challenge to the impugned order has to
be confined within such limitation. How legislature limits such right could be
visualised from Section 96 and Section 100 CPC as it stood prior to the
amendment by the Amendment Act 1976 (104 of 1976) and as it stands after this
amendment.
Section 96 deals with appeal from original
jurisdiction. Its language confers very wide right both on the appellant to
challenge and jurisdiction of the appellate court to adjudicate, when it uses
the words, An appeal shall lie from every decree passed by any court exercising
original jurisdiction. Even this wide expanse is shrunk through sub-sections 3
and 4. In other words, no appeal shall lie by virtue of sub-section 3, where it
is a consent decree and sub-section 4 forbids appeal from an order in a suit
cognizable by courts of small causes, in which the value of the subject matter
does not exceed an amount referred to therein and in other cases only on
question of law.
Prior to the amendment of Section 100 CPC a
second appeal could have been filed before the High Court on the grounds as set
out in clauses (a) to (c) of Section 100(1), namely :
(a) the decision being contrary to law or to
some usage having the force of law;
(b) the decision having failed to determine
some material issue of law or usage having the force of law; (c) a substantial
error or defect in the procedure provided by this code or by any other law for
the time being in force, which may passibly have produced error or defect in
the decision of the case upon the merits.
So the purpose for amending Section 100 by
the aforesaid Amending Act was to further limit the jurisdiction of the High
Court. Prior to the amendment the interference could have been where an order
is contrary to law or some usage having the force of law. But now it could only
be if any substantial question of law arises. The words substantial question of
law, brought in has significance not superfluous. So now interference cannot be
only because order is contrary to law, but when the disputed issues raises
substantial question of law. Creation of powers or limiting such powers in the
appellate authorities is always a decision based on public policy expressed in the
maxims interest reipublicae ut sit finis litium. This policy brings to finality
some issues or a litigation at some point of time. If no appeal is provided, the
original order becomes final. Thus it is open for the legislature to bring
finality to the adjudication on question of facts up to the stage of first
appeal and limit the second appeal to question of laws or to the substantial
question of law to such other limitation which the legislature deems fit and
proper. Section 100 CPC after the amendment is reproduced below: 100. Second
Appeal.- (1) Save as otherwise expressly provided in the body of this Code by
any other law for the time being in force, an appeal 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. (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 involving 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.
Sub-section (3) places an obligation on the
appellant to precisely state the substantial question of law involving in the
appeal. Sub-section 4 confers on the High Court an obligation to formulate the
substantial question of law, if it is satisfied that it is involved. Then
sub-section 5 confers right on the respondent to urge that no substantial
question of law arises. The proviso supplements the discretion to the court to
formulate if some other substantial question of law arises if not formulated.
The aforesaid scheme of this Section clearly reveals the intents of legislature
to limit the exercise of power of the High Court under Section 100. Thus
existence of substantial question of law is sine qua non for the exercise of
power by the High Court under this Section.
Chandra Goswami (1997 (4) SCC 713 at para 7)
:
Para 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 to 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.
and others, 1997 (5) SCC 438, this Court
followed and approved the aforesaid decision in the case of Panchugopal (supra)
and further held:
Para 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
the 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.
This Court in this case expressed its concern
that these aspects are seldom borne in mind while deciding and entertaining the
second appeal as they are being disposed of without conforming to this
discipline. The concerned expressed by this Court in the aforesaid decision,
which we also unhesitatingly reiterate. Though amendment was in the year 1976
but still large number of second appeal are being disposed of without
conforming to this requirement.
another, 1998 (6) SCC 748, this Court held :
Para 7 - .. Unless there was a substantial
question of law, the High Court had no jurisdiction to entertain the second
appeal and consider the merits. It has been held by this Court in Panchugopal
Barua V. Umesh Chandra Goswami and Kshitish Chandra Purkait V. Santhosh Kumar
Purkait that existence of a substantial question of law is sine qua non for the
exercise of jurisdiction under Section 100 CPC. In both the aforesaid cases,
one of us (Dr. Anand, J) was a party to the Bench and in the former, he spoke
for the Bench.
and others, 1999 (3) SCC 722, this court held
:
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.
Thus within the said periphery the question
arises, whether the High Court in the present case has rightly exercised its
jurisdiction in setting aside the findings recorded by both the courts below?
So far the question of sub-letting the finding was based on the deposition of
the witnesses to whom the disputed premises was sub-let. Their testimony was
rejected by the High Court mainly on the basis that there is no detail pleading
pertaining to the period of sub-tenancy and even the witnesses has not produced
any receipt of payment of rent. It is not in dispute that there is pleading
that the disputed premises was sub-let. The detail, if any, can be supplemented
through evidence. Mere lack of details in the pleading cannot be reason to set
aside concurrent finding of facts. Similarly, the High Court interfered with
the concurrent finding of facts that nuisance was created by the respondent by
obstructing the passage leading to the appellant house by keeping onion bags
leaving out of space of 11 feet to 3 feet only. The fact of this obstruction is
also supported by the Commissioner report submitted in the present proceedings.
The finding recorded on sub-letting and nuisance by both the courts below being
based on evidence on record its setting aside by reappraisal of evidence, and
in any case without framing any substantial question of law by the High Court
cannot be sustained and further we also do not find any substantial question of
law arising therein. Learned counsel for the respondent tried to submit with
force by attempting to take us to the evidence of the witnesses to show their
unworthiness for reliance. It is neither a case of no evidence nor perverse
finding. All these submissions are within the realm of appreciation of evidence
which should not have been interfered by the High Court for less for us to
examine.
Returning to the question of default
committed by the respondent, the submission is, as per prayer in the suit the
arrear claimed is only at the rate of Rs. 45 per month, hence without its
amendment, subsequent enhancement to Rs.100 per month under Section 7 cannot be
construed to be a default for eviction. Further unless the order under Section
13(3) is modified as aforesaid the non- deposit of this payment, if at all, at
this rate cannot be construed to be default. Thus this enhance amount, if any,
cannot be construed as default for eviction. He further submits as per Hindi
calendar months, which is referred in the plaint, even after the enhancement
under Section 7, if computed under it there is no default. It has also been urged
by learned counsel for the respondent that the order under Section 7 has not
been brought on the record in this proceeding, hence, could not be relied. On
the other hand learned counsel for the appellant submits Section 7 stands by
itself and any default after fixation of the provisional rent under it and
failure to pay this rent for any month by 15th day of the next following month
of such determination renders a tenant liable for eviction. There is no need to
modify any order under Section 13 (3) for this and after amendment of plaint
even without amending prayer, by virtue of Section 7 (4) the respondent is
liable for eviction.
Further, there is no plea by the respondent
that rent is payable as per Hindi Calendar month. Description in the plaint of
the arrears by referring names of Hindi month does not make tenancy by Hindi
calendar.
Though the submission on this question of
default was stretched, both by learned counsels for the appellant and the
respondent at great length but we do not propose to go into this question, when
we have upheld the concurrent findings of both the courts below of sub-letting
and creating nuisance, which by itself is sufficient for a decree for eviction.
The submission, since it raises question of interpretation of various sub-sections
of Section 13 and Section 7, it is not necessary to go into it for the said
reason in the present proceedings. This apart, as we have held that the High
Court committed error in the exercise of its jurisdiction in setting aside the
concurrent findings of fact on sub-letting and nuisance without formulating and
there being any substantial question of law, the same also equally applies so
far this third point, namely, the default of the tenant. Once the appellate
court recorded the finding that there is no default that became final and if
the High Court did not interfere with this finding, we do not find, it
committed any such error which require our interference. We do not find any
substantial question arising out of the decision on this point.
For the aforesaid reasons and the findings
recorded by us, we find it to be a fit case to allow this appeal and set aside
the judgment and order of the High Court dated 15th December, 1995 and uphold
the decree passed in favour of the appellant by the two courts below. On the
facts and circumstances of the case, costs on the parties.
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