s o ‘ 3 ECOND APPEAL N ArrEAL/rLAmI uw‘M COURT FEE ’AFFIXED I PROCEDURE 1oo O i 1 m J SECOND APPEAL UNDER SECTION‘ N THE HIGH COURT OF JUDICATURE AT BILASPUR C G w F CODE OE awn AEPELLANI / Thakurdas Sonl g ........... / DEFENDANT ‘ ' 3i 1 I Aged about 65 years 7' S/o Chhagaljllal Sonl i Occupation —‘Business I “Sheela JeWCIlers”, i R/o. Edward Road, 1 Sadar Bazar, Raipur, ‘f Tahsil &:,Dist. Raipur (C.G.) 1 L . VER‘SUS ‘; u * .M § RESPONDENTs 1. Sadashiv Ram /P’L[AINTIFFS / Devkar, Aged about 50 years ’ ‘ S/o Shr1 Gyanu Devkar Occupat1on Busmess Edward Road Sadar Bazar Raipur Tah311 85 D1st Ra1pur (C G ) Rajaram Devkar Aged about 46 years, S/ o. Shri Gyanu Devkar, Occupation — Business; Edward Road, Sadar Bazar, Raipur, Tahsil 85 Dist. Raipur (C‘G.) HIGH COURT OF JUDICATURE AT BILASPUR [C.G) SECOND APPEAL NO. 739/2003 APPELLANT: Thakurdas Soni. Vers'us RESPONDENTS: Sadashiv Ram Devkar 8s another ‘ POST FOR ORDER ON 17.03.2004 Sdl— L.C.BHADOO Judge 17.03.2004 J HIGH COURT OF JUDIGATURE AT BILASPUR [c.G) SECOND APPEAL NO. 739/2003 APPELLANT: Thakurdas Soni. Versus Sadashiv Ram Devkar at. another RESPONDENTS: Prcsgm: - Shri Manjndra Shrivastava, Advocate: For the appellant Shri B.P. Shanna, Advocate: For the respondents Before: Hon’ble Shri Justice L.C. Bhadoo J U D G M E N T (Passed en V7”? Mamh, 2004) 1. The defendaixt/appellant has preferred this second appeal under Section 100 of the Code of Civil Pmceduie, 1908 being aggrieved by the judgment and decree dated 06.11.2003 passed by the learned Vlllth Additional District Judge [Fast Track Court), Raipur in Civil Appeal No.1Aj2003 arising out of judgment and decree dated 22.08. 1997 passed by the Civil Judge Class-I, Raipur in Civil Suit No.367A/2002 whereby the learned Civil Judge Class—I decreed the suit of the respondents/plaintid‘s against the appellant] defendant for eviction of the suit premises. 2. The brief facts relevant for the disposal of this second appeal are that the plaintih‘s/Iespondents herein nled a suit in the Court of Civil Judge Class-I, Raipur against the defendant] appellant herein for eviction of the disputed premises described as ‘GHIJG’ in paragraph 4 of the plaint on the ground that in the suit premises the defendant is carrying on the business of gold and silver jewellery and he is tenant in that shop on a monthly rent of Rs.55/ —(Rupees Fifty Five) per month. He took that shop on rent dom the previous landlords namely Sadhuram Agrawal and Rakesh Agrawal n‘om Whom the plaintiffs/respondents had pumhased the suit premises along with other pmperties vide sale deeds dated 22.04.1992 and 23.04.1992 and about the said fact previous landlords as well as thc plainu'E informed the defendant. They further averred that the tenant—defendant neither paid the rent nor tendered the rent, thevefore, he is defaulter and liable to be evicted from the suit pmmises. They also sought eviction on the ground that the sons of both the plaintih‘s axe in need of disputed plemises for running the shop of gold and silver jewellety as well as for rehnery ofjewellery, as they are unemployed and them is no Voiher alternative non‘residential accommodation is available to them for running the said business. The defendant] appellant has hled written statement and denied the need of the plaintid‘s. 3. The leamed trial Court after naming issues and after recording evidence of the plaintih's and defendant decreed the suit of the plaintids. Being aggrieved by the judgment and decree of the Civil Judge Class-I, the appellant herein preferred a regular appeal before the Additional Disnict Judge, which was dismissed by the impugned judgment and decree.‘ 4. I have heard the learned counsel for the parties on the question of admission. 5. As per provisions of Section 100 of the Code of Civil Procedure, x 1908 this Court is entitled to entertain an appeal only on the gound of substantial question of law because Section 100 of Code of Civil Procedure says that “save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court horn every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisned that the case involves a substantial question of law”. Therefore, on other ground second appeal is maintainable. 6. Now coming to the question Whether the appellant has been able to raise a substantial question of law. ln the matter of Kashi Bai and another Vs. Parwati Bai and others regrted in 1995 (61 SCC Page 213 the Hon’ble Apex Court held that “it may not be out of place to mention that sub-section (1) of Section 100 of the Code of Civil Procedure explicitly provides that an appeal shall lie to the High Court from evely declee passed in appeal 3y any Coult subordinate to the High Court, if the High Court is satisoed that the case involves a substantial question of law. Sub-section (4) of Section 100 provides that when the High Court is satished that a substantial question of law is involved in any case it shall formulate that question. It has been the consistent View of this Court that then: is no jurisdiction to entertain a second appeal on the ground of erroneous fmding of fact, based on appreciation of ‘the relevant evidence”. In the matter of Burg Choudhrain Vs. Jawamr sLngg Choudri (17 1A 122 (pen, the Pn'vy Council held that “there is no jurisdiction to entertain a second appeal on the gmund of an ermneous nnding of fact, however, gross or inexcusable the error may seem to be”. Again in the matter of Dn anoba Bhaurao Shemade V. Maroti Bhauraon Marnor reported in 1999 [2! SCC 471 the Hon’ble Apex Court held that “the quesu'on whether a hnding of fact is against the weight of evidence does not project a question of law, much less a substantial question of laW’. The Constitution Bench of the Supreme Court in the case of Chunnilal V. Mehta and Sons Ltd N i Vs. Century Sgg. And Manufacturing Co. Ltd. reported in 1962 ‘ Sun (3! SCR 549 held as under; ’ principles or that the plea raised is palpably absurd the question would not be a substantial question of law” Therefore, in view of the above law the High Court should test the presence of substantial question of law before admitting the second appeal and Section 100 of Code of Civil Procedure does not provide an absolute and automatic right to appeal. It is also settled / law that if the judgment and decree impugned is passed on n0 evidence or totally in disregard to the evidence on reooui then that fact is also a substantial question of law as to Whether the decmc passed by the Appellate Court is based on no evidence or totally in dismgard of the evidence available on the record. The Hon’ble Apex Court in the matter of State of Rajasthan v. Harphool Singh reported in 2000(5) SOC Page 652 held that “where them axe glaring inconsistencies and connadictions in the evidence and issues raised are sen‘ous in nature (destruction of n'tle of State to suit properties in this c'ase), held, High Court is not hampered by the provisions of Section 100 hem interfering with even concunent nudings of fact of the lower courts and Where the hndings based on sunnises and‘conjuncture, perverse nudings not based on legally acceptable evidence and which axe patently connaiy to law declaxed by Supreme Court and cannot have any impunity from interference in the hands of the appellate authority”. 8. Therefore, in View of the above law laid down by the Hon’ble Apex Comt, if we examine the present appeal the learned counsel for the appellant nied to raise a question as substantial question of law that whether the learned Court below was justined in rejecting the ‘ appeal of the appellant/defendant while completely ignoring the fact that the mspondents/plaintid‘s have neither pleaded nor proved the bonande requirement of the suit accommodan'on whereas the same has come in the evidence that the respondents] plaintin‘s have stated that they are having two non- residential accommodations, in which they are nmm'ng their jewellery shops. Learned counsel for the appellant argued that while passing the decree the trial Court and the Appellate Court have not considered the requirement of sub—clause (i) of sub- section 1 of Section 12 of M.P. Accommodation Control Act, 1961 in which it has been clearly prescribed that “the landlord or such other person has no other reasonably non—residential accommodation of his own or in his occupation in the city or town concerned”. In the nst instance this Court is not entitle to entertain the second appeal against the concurrent hndings of both the Courts on the issue of necessity of disputed premises for the sons of the plaintin‘s. Even otherwise, if we look into the plaint, evidence and judgment of the trial Court as well as the Appellate Court, the argument of the lemned counsel for the appellant is without any force and totally misconceived. The plaimm‘s have speciocally mentioned in Paragraphs 7, 8A, 8B 6r. 8C of the plaint that the suit property in question is bonamlely required by PlaintiE No.1 for starting business of gold 8a silver ornaments for his sons namely Ganesh 8n Anil and the plaintin' No.1 is not in occupaiion of any other suitable non—residential accommodation of his own where he can start the business-of his sons. Similarly in Paragraph 8—B it has been mentioned that ‘Plaintih‘ No.2 is in bonande need for starting gold and silver rennery business for his son namely Sunil Kumar, Who is unemployed‘and Plaintih' No.2 is not in occupation or has no other alternan've non-residential accommodation of his own where the plaintiE No.2 can start business for his son. In Paragraph 8-C it has been mentioned that at present the plaintin‘s are carrying on the business in a partnership nun in the name and style of Devkar Jewellers in the shop situate at Edward Road, Raipur near the shop owned by the Hindu Undivided Family of the plaintm‘s and their brothers and the sons of the plaintiil‘s are unemployed. Therefore, the plaintin‘s’ case is very specihc that they are dealing in the business of gold and silver jewellery in the name and style of Devkar Jewellers in a shop situate at Edward Road, Raipur and the same is a joint family business. In the evidence of PW-l Rajaram Devkar and PW-2 Sadashiv Devkar it has categorically come that Devkar Jewellers is an undivided joint Hindu family pmperty in which the plaintih's along with their third brother are partners and they are running the business whereas the disputed premises is required for starting business of their sons who are unemployed and presently their sons are learning that business in their joint family business. They have further stated that the disputed premises are required for the business of their sons Ganesh, Anil 86 Sushil. 9. So far as the question of availability of alternative non-residential accommodation is concerned which the learned counsel for the appellant tried to raise has aheady been considered by both the Courts that these Witnesses have spec§ca11y stated that they have no other altemah‘ve non—lesidentia] accommodation to start the business of their sons. PW—l Rajaram Dcvkar in Pa1€graph 8 of his evidence clearly stated that there is no other non-residential accommodation available and further stated that pmsently his sons and his bmther’s son are helping in their joint Hindu family ' at business i.e. Devkar Jewellers. In the cross-examination he stated that they are running the said shop i.e. Devkar Jewellers in their house which is three ston'es building, which is being used for their xysidential purpose also. Same is the evidence of PW-Q. In pamgraphs 8 &. 9 of evidence PW-2 has stated that them is no other alternative non-residential accommodation is available to them for stafting business of their sons and presently their sons are assisting-them in their joint Hindu family business. The defendant in Palagtaph-8 of his evidence stated that he has not connrmed h‘om any o$ce or h‘om anybody else that the sons of the plaintih‘s are doing the business. He is saying on his own guesswork that sons of plaintiifs ale doing their business. i 10.When the plaintin's have specihcally stated that no alternative non- residential accommodation is available to them then the defendant had opportunity to elicit mun them in the cross-examination and suggesting the fact that particular building is available with them for carrying out the business of their sons and the same is in their occupation. Simply giving general evidence that the plaintih's have alternative non-residential accommodation to carry out the business of their sons cannot be acted upon and believed to throw the case of the plaintih's. Both the Courts have considered this aspect in the judgment. 1 1.Thcrefore, in View of the above, learned counsel for the appellant has not been able to raise a substantial question of law that the plaintins have not been able to prove and establish that they have no alteman've non-residential accommodation to start the business of their sons. 12. Learned counsel for the appellant tried to raise a question by way of substantial question of law that Whether the learned Appellate x Court was justmed in rejecting the appeal inspite of the fact that them is discmpancy amongst the respondents/plaintm‘s with regani to th6 ownership of two existing non-residential accommodation Vie. Devkar Jewellers & Devta Jewelkrs. In the first place this point was neither raised befole the trial Court nor before the Appellate Court, therefore, the defendant/appellant is not entitled to raise this point for the hrst time in the second appeal. Even otherwise, the argument of the learned counsel for the appellant is totally misconceived. There is no discrepancy in the evidence of therplaintin's regarding the ownership of two Veidsting residential accommodations. PW-l Rajamm Devakar in his evidence stated that there is joint Hindu undivided family business of‘ gold and silver ornaments in the name and style of Devkar Jewellers whereas PW-2 Sadashiv Devkar has stated that the business of joint Hindu family is in the name and style of Devta Jewellers. It appears that while giving evidence PW—2 has inadvertently mentioned the name of joint Hindu family business as ‘Devta Jewellers’ instead of ‘Devkar Jewellers’ and if the appellant/defendant was at all concerned about this then the counsel for the appellant/defendant ought to have elicit in the cross-examination that Devkar Jewellers and Devta Jewellers are din‘erent nrms and they have sunicient non-residential building for carrying out the business of their sons, which has not been done. The question for consideration of trial Court and Appellate Court was that whether any alternative non-residential accommodation to carry out the business of sons of the plaint'n‘s is available and that. the plaintiEs have been clearly able to establish that there is no other alternative non-residential accommodation to start the business of their sons and the defendant has not been able to come forward to establish that particular non—residential building is in possession of the plaintiifs for carrying out the business of their sons. Therefore, on this ground also the defendant has not been able to raise a substantial question of law. 13.The learned counsel for the appellant also argued that one of the part of the disputed shop was purchased by respondent No. 1 and other part of the shop was purchased by respondent No.2, therefore, they ought to have sought eviction separately in their ir sons and they have $ed ‘ own right proving the necessity for the wrong suit jointly for the eviciion of the shop. 14.111 the &st instance this point was not raised by the appellant in his Wtitten statement and no issue was Med on this point by the trial Court. HoWever, without issue and pleading of the parties the ’ ‘ ‘ learned First Appellate Court entertained this argument. In my \' / opinion the learned First Appellate Court ought not to have allowed this argument. Even otherwise as per the provisions of Order 1 Rule 1 of the Code of Civil Procedure, 1908 all the persons may V be joined in one suit as plaintiEs Where- ‘ (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and (b) if such persons brought separate suits, any common question of law or fact would arise. rder 2 is also relevant which lays i In this connection the Rule 3 of O down that: (1) Save as otherwise provided, a plaintid‘ may unite in the same several causes of action against the same defendant, or the same defendants jointly; and any plaintiEs having causes of action in which they are jointly interested against the same defendant or the same defbndants jointly may unite such causes of action in the same suit. 15. In view of the above provisions of the Code of Civil Pmcedune, ifwe look into the facts of the present case the disputed premises was taken by the defendant mm the previous landlord on rentas a one unit, However, the respondents purchased the disputed shop as well as other land from the previous landlord and each of the respondents have purchased ‘/2 part of the shop alongwith other land nom the previous landlord and the respondents have filed the suit for eviction of the shop for reasonable and bonaiide necessity of their sons for setting up of the gold and silver jewellery business As per the above provisions of law of the Code of Civil Procedure, the several plaintiEs jointly deriving titles in respect of an enn're property horn din‘erent sources, may bring one suit against the defendants for its recovery even where the property is pumhased by d$erent persons in ditferent portions under separate deeds, suit by all of them for eviction of the tenant of the Whole property is maintainable as the suit confonns to the requixement of Order 1 Rule 1 which also applies to the question of joinder of parties as also to cause of action and in this connection I am fortwed in my View by the judgment of Rajasthan High Court } ( held in Harrirm V. Kanhaiyg A 1975 Raj 23. When them is no conilict of interest as between the plaintm‘s, the cause of action in respect of both the tenanted premises is common namely the bonafide mquhements of the plaintiffs and so the suit will not fail off the ground of multifariousness, Themfore, in view of the above, i the argument raised by the learned counsel for the appellant is not a substantial question of law. 16.No‘ other points were argued or pressed by the learned counsel for the appellant. 17. In view of the above discussion the defendant / appellant has not been able to raise a substantial question of law before this Court. g Themfore, as no substantial question of law is available in this § second appeal the same is liable to be dismissed on this ground and accordingly, it is dismissed at the admission stage itself. a Sdl- i L.C.BHADOO Judge bat/ow 2004