1 SBCSA No. 251/2008 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T S.B. Civil Second Appeal No. 251/08 Durga @ Durgadas Vs. Balkishan Date of Judgment : 22/10/2009 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. Aklavya Bhansali for the appellant. Mr. Rajesh Joshi for the respondent. BY THE COURT This civil second appeal under Section 22 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 'the Act of 1950' hereinafter) r/w Section 100 of Code of Civil Procedure (for short 'the Code' hereinafter) is directed against the judgment and decree dated 17.5.2008 passed by Additional District Judge No.2, Jodhpur (for short 'the first appellate court' hereinafter) in Civil Appeal Decree No. 105/07 whereby the appeal filed by the appellant defendant against the judgment and decree dated 23.11.2004 passed by Additional Civil Judge (Jr. Div.) No.2, Jodhpur (for short 'the trial court' hereinafter) in Civil Original Suit No.35/01, was dismissed. During the pendency of the appeal, an application being I.A. No. 12863/08 came to be filed by the appellant defendant under Order 41 Rule 27 r/w Section 151 of the Code 2 SBCSA No. 251/2008 seeking to take on record the certified copy of the Voter List . I have heard learned counsel for the parties on the application under Order 41 Rule 27 r/w Section 151 of the Code as also on the merit of the appeal. Carefully gone through the judgment and decree of the trial court as well as of the first appellate court. Learned counsel appearing for the appellant contended that the certified copy of the Voter List issued by the Election Officer shows the name of one Devilal to whom the respondent plaintiff alleged to be sub-tenant or to whom the rented premises have otherwise been parted with the possession by the appellant. Learned counsel for the appellant-applicant contended that the Voter List annexed with the application showing name of Devilal after the names of the appellant and his family members would make out a case that Devilal had been residing since long and therefore, he submits that the application under Order 41 Rule 27 r/w Section 151 of the Code be considered and decided at the time of hearing of the appeal on merit. Learned counsel for the appellant-applicant has relied on a decision of Hon'ble Supreme Court in North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead) By LRs. (2008) 8 SCC, 511 wherein Hon'ble Supreme Court while considering the provisions of Order 41 Rule 27 and Sections 100 and 107 of the Code held that the High Court was bound to consider the application under Order 41 Rule 27 CPC before 3 SBCSA No. 251/2008 taking up the appeal on merits. The question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits. The appellate court has the power to allow additional evidence not only if it requires such evidence “to enable it to pronounce judgment” but also for “any other substantial cause”. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted, but Section 107 CPC which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Learned counsel appearing for the respondent plaintiff opposed the application. Learned counsel appearing for the respondent has relied on a decision of Hon'ble Supreme Court in Basayya I. Mathad Vs. Rudrayya S. Mathad & Ors. AIR 2008 SC 1108 wherein Hon'ble Supreme Court held that it is clear that parties to the lis are not entitled to produce additional evidence as of course or routine but must satisfy the conditions stated in sub-clauses (a) & (aa). In that case, the condition stated in Sub-clause (a) and (aa) has not been resorted to 4 SBCSA No. 251/2008 neither by the party concerned nor adhered those principles by the High Court and therefore, the finding based on documents produced therein by the High court at the time of argument was held to be dehors to Rule 27 of the Code and therefore, it was unsustainable in the eye of law. It was held by the Apex Court that in fact, sub-clause (2) of Rule 27 mandates that wherever additional evidence is allowed to be produced by an Appellate Court, it shall record the reason for its admission. It is needless to mention that the High Court neither followed those conditions for production of additional evidence nor recorded the reason for basing reliance on the same. In Haryana State Industrial Development Corporation Vs. M/s Cork Manufacturing Co., AIR 2008 SC 56, the Hon'ble Supreme Court held that Order 41 Rule 27 of the CPC does not empower an appellate court to accept additional evidence on the ground that such evidence could not be produced or filed either before the trial Court or before the first appellate Court due to inadvertence or lack of proper legal advice. Neither can it be said that lack of proper legal advice or inadvertence to produce the legal notice in evidence is a ground to hold that there was substantial cause for acceptance of the additional evidence. Similarly, non-realization of the importance of the documents due to inadvertence or lack of proper legal advice also would not bring the case within the expression “other substantial cause” in Order 41 Rule 27 of the C.P.C. and on these premises, the Apex 5 SBCSA No. 251/2008 Court held that the legal notice could not be admitted as additional evidence. Order 41 Rule 27 of the Code provides for production of additional evidence in Appellate Court which is reproduced hereunder:- “O.41 R. 27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” In the instant case, neither the document sought to be taken on record is necessary for pronouncement of judgment nor for any other substantial cause, when indisputably the appellant-applicant failed to satisfy the requirement of Rule 27 (a) and (aa). It is not the case of the appellant-applicant that the 6 SBCSA No. 251/2008 Court from whose decree the appeal is preferred has refused to admit evidence, since no such efforts were made by the appellant-applicant to produce additional evidence before the first appellate court. So far as seeking to produce additional evidence by producing Voter List before this Court, it is not the case of the appellant-applicant that notwithstanding the exercise of due diligence, such document was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. In the circumstances, therefore, the decision relied on by learned counsel for the appellant-applicant is of no help to him. In this view of the matter, in my view, the applicant-appellant failed to make out a case admitting the document as additional evidence at the stage of second appeal and therefore, the application under Order 41 Rule 27 r/w Section 151 of the Code being IA No.12863/08 is hereby dismissed. Learned counsel for the appellant arguing on the merit of the appeal contended that the burden to prove the issue of sub-letting / otherwise parting with the possession of rented premises was wrongly casted on the appellant defendant tenant by both the courts below. It is further contended that the respondent plaintiff failed to plead and make out a case of sub- letting or otherwise parting with the possession of the premises in question. It was also contended that initial onus is on the landlord respondent plaintiff to establish the factum of sub- 7 SBCSA No. 251/2008 letting or otherwise parting with the possession of the premises which the respondent plaintiff failed to discharge. Learned counsel for the appellant has relied on decisions of Hon'ble Supreme Court in Boodireddy Chandraiah and Ors. Vs. Arigela Laxmi and Anr., 2008 DNJ (SC) 1009, in State Bank of India and Ors. Vs. S.N.Goyal, AIR 2008 SC 2594, in Kala and another Vs. Madho Parshad Vaidya, AIR 1998 SC 2773 and a decision of this Court in Shakuntala Devi Vs. Leeladhar Agrawal, 2001 (5) Western Law Cases (Raj.), 787. In Boodireddy Chandraiah and Ors. Vs. Arigela Laxmi and Anr. (supra) while considering the expression “substantial question of law”, the Hon'ble Supreme Court held that to be “substantial” a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and 8 SBCSA No. 251/2008 involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. In State Bank of India and Ors. Vs. S.N.Goyal (supra), while considering the word “substantial”, the Hon'ble Supreme Court held that the word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In Kala and another Vs. Madho Parshad Vaidya (supra) while considering the provision of Himachal Pradesh Urban Rent Control Act, Section 14 (2) (ii) eviction on the ground of sub-letting, the Apex Court held that initial onus is on landlord to prove sub-letting. This Court in Shakuntala Devi Vs. Leeladhar Agrawal (supra), held that if there is conflict of oral evidence of the parties on any issue and the decision hinges upon the credibility of witnesses, then only upon a peculiar situation as to the evidence of a particular witness having escaped notice of the trial Court or only if there is a sufficient balance of improbability to 9 SBCSA No. 251/2008 displace his opinion the first appellate Court may interfere with finding of the trial Court on a question of fact. Learned counsel appearing for the respondent plaintiff supported the concurrent finding of fact recorded by the trial court as well as by the first appellate court and submits that this appeal do not involve any substantial question of law. On careful perusal of the pleadings of the parties as also the evidence led by the parties and the judgment and decree of the trial court as well as of the first appellate court, in my view, the finding of fact recorded by the trial court on both the issues is based on sound and proper appreciation of the evidence. The plaintiff respondent filed suit against the appellant defendant for eviction of the rented premises and recovery of arrears of rent on two grounds; one that the appellant defendant has neither tendered nor paid the rent for continuous period of 12 months and other ground that the appellant defendant subletted the part of rented premises to one Devilal or otherwise parted with the possession of the rented premises to Shri Devilal. The pleading and evidence produced by the plaintiff respondent is consistent. The appellant defendant also admitted in the written statement filed by him as also in the evidence produced by him that Devilal had been residing in the ground floor of the rented premises, however, the appellant defendant came with a case that Devilal has been residing in the rented premises with the consent of father of the respondent plaintiff, 10 SBCSA No. 251/2008 but failed to produce any reliable evidence to support this plea. Thus, the plaintiff respondent had established his case by his own evidence as well as by the statement of PW-2 Surendra Singh, neighbour of the appellant defendant that the appellant defendant had subletted the ground floor of the rented premises to Devilal and otherwise parted with the possession of the ground floor. From the evidence, it has also been established that the ground floor of the rented premises is in exclusive possession of Devilal. So far as burden of proof is concerned, from the perusal of the judgment and decree of the trial court as well as of the first appellate court, it is clear that the burden of proving both the issues has been casted on the plaintiff respondent and therefore, it cannot be said that both the courts below wrongly casted the burden of proof on the appellant defendant and thus, the contention raised by learned counsel for the appellant merits rejection. So far as the pleading of sub- letting or otherwise parting with the possession of the rented premises is concerned, on careful perusal of the pleading, in my view, the factum of subletting the ground floor of the suit premises to Devilal or otherwise parting with the possession of the ground floor of the rented premises in favour of Devilal has been specifically pleaded and the evidence produced by the respondent plaintiff is consistent to that of the pleading. In the instant case, the respondent landlord has discharged the initial onus to prove that the ground floor of the rented premises has 11 SBCSA No. 251/2008 been sub-letted or otherwise parted with the possession in favour of Devilal who according to the stand of the appellant defendant is in exclusive possession of the ground floor of the rented premises. Even the appellant defendant admitted that Devilal is in exclusive possession of the rented premises in pleading as also by evidence. Only the plea taken by the defendant was that Devilal is in possession of the ground floor of the rented premises with the consent of the father of the respondent plaintiff but failed to establish this fact and therefore, in my view, the trial court as well as the first appellate court were justified in recording the concurrent finding of the fact holding therein that the respondent plaintiff succeeded to prove the issue No.1 relating to default in payment of rent as also issue No.2 relating to parting with the possession of the ground floor of the rented premises. In this view of the matter, the decisions relied on by learned counsel for the appellant turn on their own facts and are of no help to him. On close scrutiny of the judgment and decree of the trial court as well as of the first appellate court, in my view, this appeal does not involve any substantial question of law and therefore, it is liable to be dismissed. Consequently, I do not find any merit in the second appeal and therefore, it is dismissed. Interim order stands vacated and stay petition also stands dismissed. At this stage, counsel for the appellant submits that a 12 SBCSA No. 251/2008 reasonable time to vacate the suit premises may be granted and the appellant is prepared to furnish undertaking for vacating the entire rented premises. Leaned counsel appearing for the respondent landlord submits that the decree of trial court is dated 23.11.2004 and near about five years, the appellant has enjoyed the benefit of the suit premises remaining in possession of the said premises, however, submits that a short period beyond statutory period of two months may be granted to the appellant to vacate the suit premises on furnishing undertaking and making the payment of mesne profit month by month and vacating the suit premises on expiry of period so granted. Having considered the facts and circumstances of the case, in my view, ends of justice would be met in granting the period to the appellant to vacate the suit premises on or before 30.4.2010 on the following conditions :- (1) The appellant shall personally submit an undertaking supported by affidavit before the trial court within fifteen days from today to the effect that on or before 30th April, 2010, the appellant shall hand over peaceful and vacant possession of the entire suit premises in question to the respondent landlord. The appellant shall also undertake not to cause any damage to the premises in question; not to make any alteration; not to assign, sublet or in any manner part with possession to any other person; not to put the premises to any use other than the present use; and not to cause any nuisance. (2) The appellant shall deposit within three weeks the arrears, if any, of the rent/ mesne profits and shall further pay to the 13 SBCSA No. 251/2008 respondent landlord the amount for use and occupation of the premises in question month by month or deposit this amount in the bank account of the landlord (particulars whereof may be furnished to the appellant within two weeks from today by the respondent landlord) month by month on or before 15th day of the next month. It is made clear that upon the appellant's failure to comply with any of the conditions aforesaid or violating any term of the undertaking, the respondent landlord shall be entitled to execute the judgment and decree in accordance with law. (H.R.PANWAR), J. rp