1 S.B. Civil Second Appeal No.41/2010 Date of Order: 12.5.2010 HON'BLE MR. PRAKASH TATIA, J. Mr. Narendra Moolchandani, for the appellant. Mr. DLR Vyas, for the respondents. <><><> Heard learned counsel for the parties. The following substantial question of law,which goes to the root of the matter is as under: - “Whether the first appellate court committed error of law by not considering the evidence of the parties. The plea taken at least by the appellant in support of his case to challenge the judgment and decree of the trial court and also did not apply its mind to the facts of the case and further the appellate court has delivered the judgment which is non-speaking and unreasoned judgment.” At the request of learned counsel for the parties heard finally. The plaintiff filed the suit for eviction of appellant- tenant after terminating the tenancy of the appellant-tenant under Section 106 of the Transfer of Property Act. The plaintiff's contention as stated in the plaint was that the suit premises was let out to the appellant on 1st Nov., 1999 on rent of Rs.100/- per month. The defendant paid the rent 2 upto 31st July, 2003 only then plaintiff served a notice upon the defendant which is dated 19.2.2005 demanding the rent from 1.8.2003 to 31.3.2005 as well as the landlord- respondent demanded possession of the suit premises from the appellant. According to the plaintiff the tenancy was terminated w.e.f. 31.3.2005. The plaintiff also prayed for mense profit @ Rs.1,000/- per month. The suit of the plaintiff was contested by the defendant by filing the written statement and stated that the suit premises was taken on rent on 1.12.1998 by the defendant from the father of the plaintiff. Then again on 3.12.1999 a fresh rent deed was got executed and the appellant – tenant was permitted to occupy the premises upto Nov., 2010 and for that a new rent deed was executed on 4.12.2004. The defendant paryed for dismissal of the suit of the plaintiff with cost of Rs.10,000/-. Total 7 issues were framed which are the issues whether the tenancy of the defendant was terminated from 31.3.2005, whether the plaintiff is entitled to rent from 1.8.2003 to 31.3.2005 @ Rs.600/- per month and whether the plaintiff is entitled to mense profit @ Rs.1000/- during the pendency of the suit and specific issue was framed whether the plaintiff cannot seek eviction decree against the defendant till Nov., 2010 and what is the rent dee dated 4.1.2004 and on the basis of 3 the plea taken by the defendant issues were framed that whether the defendant is entitled to cost of compensatory of Rs.10,000/- and the suit has been filed absolutely on wrong basis. The parties produced witnesses and also produced documentary evidence. The trial court decreed the suit of the plaintiff vide judgment and decree dated 20th July, 209, against which the tenant preferred appeal before the court of Addl. District & Sessions judge, Phalodi. The tenant's appeal was dismissed by the judgment and decree dated 23.2.2010. Learned counsel for the appellant submitted that the order of the appellate court is contrary to law and rather say that the judgment is no judgment in the eye of law as the first appellate court did not consider any of the plea of the defendant-tenant in the entire judgment. The entire finding in substance given by the first appellate court is virtually one line that the trial court has not committed any illegality in deciding the issues nos. 2,4 and 6 in favour of the plaintiff and then also observed that the trial court decided these issues after considering the evidence. However from the judgment impugned it is clear that the appellate court has not considered the findings on issues nos. 4,5 and 6 nor the appellate court has considered any of the evidence of any of the witnesses of any of the parties. It 4 appears that the first appellate court was under impression that the trial court's judgment is binding upon the first appellate court and therefore, the first appellate court held that in view of the reasons given in the impugned judgment in paras nos. 7, 8, 21 and 22, all the grounds raised by the appellant cannot survive. In view of Section 100 CPC, the first appellate court's judgment is binding upon the High Court so far as it decides the question of fact unless it suffers from any error of law. It is settled law that the first appellate court is said to be final court for deciding the question of fact. The impugned judgment is clearly in gross violation of the statutory provision of writing judgment which requires consideration of evidence and decision on question of fact as well as on issues by the first appellate court which required to record finding of fact so as to make it a judgment in the eye of law. Mere saying that in view of the judgment of the trial court, the grounds raised by the appellant do not survive is nothing but accepting the judgment of the trial court binding upon the appellate court, which is not proper and such practice is deprecated. As stated above, the first appellate court since has not considered any evidence on record nor has decided any issue by its own judgment, therefore, the judgment of the 5 first appellate court deserves to be set aside. Hence, the question is answered that the first appellate court committed grave error of law and dismissed the appeal of the appellant by non-speaking order as well as without considering the evidence of the appellant. In view of the above,the appeal is allowed and the order passed by the first appellate court is set aside. The matter is remanded back to the first appellate court. The first appellate court is requested to decide the appeal expeditiously within a period of three months from the date of receipt of copy of this order as well as record. Both the parties are directed to appear before the first appellate court on 5th July, 2010. [PRAKASH TATIA],J. cpgoyal/-