S.B.CIVIL SECOND APPEAL NO. 169/2008 Smt. Rekha Gangadia & Ors. vs.Jayanti Lal Judgment dt:16th September, 2008 1/14 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Smt. Rekha Gangadia & Ors. vs. Jayanti Lal S.B.CIVIL SECOND APPEAL NO. 169/2008 DATE OF JUDGMENT : 16th September, 2008 P R E S E N T HON'BLE DR.JUSTICE VINEET KOTHARI Mr.L.M.Lodha, for the appellants. Mr.Suresh Shrimali, for the respondent. BY THE COURT: 1. This appeal has been filed by the defendant tenants against the concurrent judgment of two courts below in a rent eviction matter decreeing the eviction from the suit premises known as `Swadhyay Kutir', Near Bus Stand, Mount Abu. 2. The suit was filed by Jayanti Lal on the basis of default, personal bonafide necessity and denial of title and the suit has been decreed on all the aforesaid grounds and also the findings of comparative hardship as well as partial eviction have been given by the courts below against the defendant. S.B.CIVIL SECOND APPEAL NO. 169/2008 Smt. Rekha Gangadia & Ors. vs.Jayanti Lal Judgment dt:16th September, 2008 2/14 3. By the judgment dated 5/5/2008, the learned first appellate court of Addl. District Judge, Abu Road partly allowed the appeal no. 8/2003 filed by the defendant by deciding issue no.4 in favour of defendant, however for issue nos. 1, 2, 3 and 7 the appeal of defendant has been dismissed and judgment and decree of trial court was affirmed. The plaintiff's appeal no.13/2003 as cross appeal/objection was however rejected on issue nos. 8, 9 and 10. The following issues were framed by the learned trial court: Issue no.1 – Whether the defendant is tenant of plaintiff since 16/3/1982?..........Plaintiff. Issue No.2 – Whether the defendant is not in default in payment of rent since 16/3/1982?..........Defendant. Issue No.3 – Whether the defendant has denied title of plaintiff as well as ownership of the plaintiff over the suit property and whether the plaintiff has waived his right and condoned the defendant's plea ?.............Plaintiff. Issue no.4 – Whether the plaintiff requires the suit premises for his personal bonafide necessity ?..............Plaintiff. Issue No.5 – Whether the plaintiff would suffer more hardship in comparison to defendant if decree of eviction is not S.B.CIVIL SECOND APPEAL NO. 169/2008 Smt. Rekha Gangadia & Ors. vs.Jayanti Lal Judgment dt:16th September, 2008 3/14 granted?...........Plaintiff. Issue No.6 – Whether the partly eviction is permissible and if so to what extent and whether any hardship would be caused to any party?.............Defendant. Issue No.7 – Whether the defendant has purchased alternative accommodation for his residence in Mount Abu and also obtained possession thereof ?................Plaintiff. Issue No.8 – Whether the defendant caused any nuisance as stated in para no.9 by the plaintiff?.................Plaintiff Issue No.9 – Whether the defendant has given on rent part of disputed premises without permission of the landlord to one M/s Baby Land Hostel and has thus parted with the possession of the suit premises? ...............Plaintiff. Issue No.10 – Whether the defendant has changed the user of suit premises from the one for which he had taken the suit premises on rent ?.................Plaintiff. Issue No.11 – Whether the defendant is entitled to special damages of Rs.5000/- from the plaintiff under Section 35 (A) of CPC?............Defendant. Issue No.12 – Relief. S.B.CIVIL SECOND APPEAL NO. 169/2008 Smt. Rekha Gangadia & Ors. vs.Jayanti Lal Judgment dt:16th September, 2008 4/14 4. Mr.L.M.Lodha, learned counsel for the appellant defendant made lengthy arguments at bar and submitted that the defendant had never denied the title of plaintiff and what he had disputed before the courts below was only the derivative title of plaintiff because the suit property in question was sold by one power of attorney holder Jagdish Prasad, who had sold the said property to the plaintiff on 16/3/1982 for a sum of Rs.61,000/- whereas the suit property belonged to one Swami Pranav Tirth Swadhyay Trust, Khambhat and, therefore, the said Trust property could not be sold without permission of the Charity Commissioner and the learned courts below have erred in granting decree of eviction on the ground of denial of title of plaintiff. He also submitted that there was no default in payment of rent on the part of defendant and the defendant had paid rent in question in accordance with provisions of Section 19-A of the Rent Control Act, 1950 and since the appellate court had determined the provisional rent under Section 13(3) of the Act on 7/1/1985 for the period 4/6/1984 to 3/1/1985, which was duly deposited by the defendant at the rate of Rs.240/- per month, therefore, the findings of courts below on the ground of default are also wrong. About personal bonafide necessity of the plaintiff and purchase of alternative S.B.CIVIL SECOND APPEAL NO. 169/2008 Smt. Rekha Gangadia & Ors. vs.Jayanti Lal Judgment dt:16th September, 2008 5/14 accommodation known as `Aaram Bungalow' by the defendant, which is now known as Hotel Swastik, learned counsel for the appellant submitted by way of application filed under Order 41 Rule 2 CPC on 11/9/2008 after concluding his arguments on 10/9/2008 that the said alternative accommodation was not residential house but was a commercial property in which the sons of deceased defendant Praveen Bhai were running a hotel for their livelihood right from the beginning, therefore, the decree of eviction on the grounds mentioned in Section 13 (1)(i) of the Act was also unsustainable. This application is opposed as not maintainable by Shri Suresh Shrimali. 5. All these submissions are strongly opposed by Mr. Suresh Shrimali, learned counsel appearing for the respondent-plaintiff, who urged that the defendant had clearly denied the title of the plaintiff and the said defendant had been pursuing the matter against the plaintiff about permission of Charity Commissioner by the Trust in Gujarat right upto Hon'ble Gujarat High Court and, therefore, it cannot be said that the challenge to derivative title of the plaintiff was bonafide and he submitted that the findings of courts below that the said challenge was not bonafide and amounted to denial of title were S.B.CIVIL SECOND APPEAL NO. 169/2008 Smt. Rekha Gangadia & Ors. vs.Jayanti Lal Judgment dt:16th September, 2008 6/14 findings of fact which could not be said to be perverse. He also referred to an application filed by the defendant before the learned trial court vide Ex.16, in para no.2 of which the defendant had clearly stated that the defendant does not accept the ownership rights of the plaintiff (मलक क अध कर). The said application was filed by defendant Praveen Bhai on 18/3/1985, which was allowed by the learned trial court vide order dated 18/4/1985 restraining the plaintiff from withdrawing the rent deposited by the defendant. 6. Learned counsel for the plaintiff respondent also drew the attention of the Court towards the litigation in regard to said permission of Charity Commissioner being pursued by the defendant in this Court also and drew the attention of the Court about two revision petitions filed by defendant having been dismissed by this Court on 17/12/1991 and 26/8/1993. He, therefore, submitted that denial of title by the defendant was not bonafide and was not only the challenge to derivative title but it amounted to denial of title of the plaintiff as landlord and thus made out a ground of eviction. He also drew the attention of the Court towards the application filed by the defendant under Section 19-A of the Act for deposit of rent in S.B.CIVIL SECOND APPEAL NO. 169/2008 Smt. Rekha Gangadia & Ors. vs.Jayanti Lal Judgment dt:16th September, 2008 7/14 Court,in para no.4of which the defendant himself has stated that since the rent was offered to the Trust and the Trust expressed that it has sold the property in question to the plaintiff and, therefore, it is not entitled to receive the rent. This led to non-compliance on the part of defendant but without tendering any such rent to the plaintiff, he deposited the same in the Court which is not in conformity with Section 19-A. 7. On the question of personal bonafide necessity and alternative accommodation purchased by the defendant, learned counsel for the respondent-plaintiff submitted that the defendant had purchased during his life time the alternative accommodation known as `Aaraam Bungalow' and thus, the grounds of eviction under Section 13 (1) (i) were also made out and mere subsequent user of the same as commercial property was not sufficient to refuse the decree of eviction against the defendant. He submitted that no substantial question of law arises in this second appeal and, therefore, the same deserves to be dismissed. 8. I have heard learned counsels at length and perused the record S.B.CIVIL SECOND APPEAL NO. 169/2008 Smt. Rekha Gangadia & Ors. vs.Jayanti Lal Judgment dt:16th September, 2008 8/14 of the case as well as the impugned judgments of courts below. 9. In the considered opinion of this Court, no substantial question of law arises in present second appeal. It appears that denial of title of the plaintiff by the defendant was not a bonafide challenge or was mere denial of derivative title. Though the question of ownership of suit premises in eviction matters is not relevant, still the manner in which defendant had pursued the litigation challenging the ownership rights of the plaintiff over the suit premises even though the suit premises were purchased by registered sale-deed by the plaintiff on 16/3/1982 through power of attorney of the Trust, who was the original owner of the suit property indicates that defendant was not merely challenging the derivative title of the plaintiff but was trying somehow to see that the plaintiff is not in a position to obtain the decree of eviction even though he had purchased the said property in question. It is well settled that even a challenge to derivative title of the landlord has to be bonafide and within the limit to ascertain as to whether the said purchase of property giving him said derivative title is not a sham or camouflage transaction. When the Trust in question itself had informed the defendant that it has sold the property to the S.B.CIVIL SECOND APPEAL NO. 169/2008 Smt. Rekha Gangadia & Ors. vs.Jayanti Lal Judgment dt:16th September, 2008 9/14 plaintiff and, therefore, was not entitled to receive the rent in question as per the own showing of defendant vide his application under Section 19-A of the Act, the defendant tenant ought to have been satisfied and since registered sale-deed was available, prima facie establishing the ownership of the plaintiff over the suit premises, the defendant had no justification of pursuing the litigation challenging the ownership rights of the plaintiff before the Gujarat High Court as well as before this Court but having failed there, he kept his challenge open under the name and style of challenge to derivative title. In the opinion of this Court, the courts below have rightly found that the challenge was really a denial of title of the plaintiff-landlord and it was a ground for decree of eviction. The application Ex-16 filed by the defendant Praveen Bhai is also clear in this regard. Same was filed with a view not to allow the plaintiff-respondent to withdraw the rent deposited by the defendant himself, therefore, object of such application was only the denial of title and not denial of ownership rights alone. 10. As far as other grounds of default and personal bonafide necessity are concerned, it is well settled that such findings S.B.CIVIL SECOND APPEAL NO. 169/2008 Smt. Rekha Gangadia & Ors. vs.Jayanti Lal Judgment dt:16th September, 2008 10/14 concurrently arrived at by two courts below are findings of facts and do not give rise to any substantial question of law so as to require any interference by this Court in second appeal under Section 100 CPC. 11. It is well settled that second appeal is not third trial on facts. This was so held by Hon'ble Supreme Court in a recent case of Gurdev Kaur and ors. V/s Kaki and ors. reported in (2007)(1) RLW 636 in which the Hon'ble Supreme Court in para 70 to 82 held as under: “(70) Now, after the 1976 amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as S.B.CIVIL SECOND APPEAL NO. 169/2008 Smt. Rekha Gangadia & Ors. vs.Jayanti Lal Judgment dt:16th September, 2008 11/14 substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of amendment mainly, according, to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved. (ii) The substantial question of law to precisely state such question; (iii) Another part of the section is that the appeal shall be heard only on that question. (71) The fact that in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 C.P.C. have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that S.B.CIVIL SECOND APPEAL NO. 169/2008 Smt. Rekha Gangadia & Ors. vs.Jayanti Lal Judgment dt:16th September, 2008 12/14 a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law. (72) When Section 100 CPC is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial question of law. (73) The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be, and they added a note of warning that no court in India has power to add to, or enlarge, the grounds specified in Section 100. (74) The High Court seriously erred in interfering with the finding of facts arrived at by the trial court and affirmed by the first appellate court. S.B.CIVIL SECOND APPEAL NO. 169/2008 Smt. Rekha Gangadia & Ors. vs.Jayanti Lal Judgment dt:16th September, 2008 13/14 (75) to (80)........... (81) Despite repeated declarations by law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case, the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention. (82) In view of the clear legislative mandate crystallised by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.” S.B.CIVIL SECOND APPEAL NO. 169/2008 Smt. Rekha Gangadia & Ors. vs.Jayanti Lal Judgment dt:16th September, 2008 14/14 12. As far as findings in relation to purchase of alternative accommodation is concerned and the decree on the grounds contained in Section 13(1)(i) are concerned, this Court is satisfied that the defendant had purchased alternative accommodation for his residential purpose and mere subsequent user of said property for commercial purpose in a hill station like Mount Abu is not sufficient to dispel the grounds of eviction under Section 13(1)(i) of the Act. Thus, this Court is of the opinion that no substantial question of law arises in this second appeal and decree of eviction passed by two courts below is not required to be interfered with in the present second appeal. 13. The second appeal is thus found to be devoid of merit and same is accordingly dismissed. No order as to costs. (DR.VINEET KOTHARI), J. item no.10 baweja/-