1 S.B. Civil Second Appeal No. 446/2010 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT S. B. Civil Second Appeal No. 446/2010 Vimal Kumar Jain Versus Shyam Sundar Mittal. Date of Judgment: 29.10.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. Arvind Bhardwaj, for the appellant. BY THE COURT:- Heard learned counsel for the appellant. 2. Plaintiff-respondent filed a suit for fixation of standard rent under Section 6(2) of the Rajasthan Premises(Control of Rent and Eviction)Act, 1950. It was pleaded in the suit that plaintiff let out three rooms, one kitchen, latrine and bathroom to defendant @ Rs. 200/- per month in the year 1977 and defendant has not increased any rent thereafter, therefore, standard rent of the rented premises as per prevalent market rate may be fixed. 3. Suit was contested by defendant by filing written statement. Trial court framed two issues. Both the parties examined their witnesses. Trial court after considering the evidence available on record in detail recorded a finding that plaintiff is entitled to a 2 S.B. Civil Second Appeal No. 446/2010 standard rent of Rs. 1,500/- per month and consequently, passed a decree vide judgment dated 10.08.2005. Defendant preferred an appeal, which has also been dismissed by the first appellate court vide judgment dated 19.08.2010, which is under challenge in this second appeal. 4. Learned counsel for the appellant contended that plaintiff himself was not examined in the matter, therefore, trial court committed illegality in decreeing the suit and first appellate court further committed illegality in confirming the judgment passed by the trial court, therefore, both the judgments are liable to be set aside by this Court. 5. I have considered the submissions of learned counsel for the appellant in the light of reasons assigned by the trial court as well as first appellate court while deciding Issue No. 1. 6. From the judgments of both the courts below, it is clear that plaintiff examined P.W. 1 Jagdish Agarwal, P.W. 2 Ramesh Chand and P.W. 3 Vimal Jain. Defendant examined himself as D.W. 1. 7. P.W. 1, Jagdish is none else but son of plaintiff Shyam Sundar, who stated before the trial court that his father's health is not 3 S.B. Civil Second Appeal No. 446/2010 well, therefore, he has come to depose his statement in the case. Trial court has considered the statements of P.W. 1, P.W. 2 and P.W. 3 and D.W. 1 and thereafter decided Issue No. 1 in favour of the plaintiff. 8. It is relevant to mention that property in dispute was let out in the year 1977 and suit was filed in the year 2000, i.e. after 23 years, for fixation of standard rent. Now, we are in 2010, therefore, amount of standard rent fixed by the trial court appears to be reasonable and the same does not call for any interference. 9. Second appeal can be admitted only on the substantial questions of law. I have examined the substantial questions of law formulated in the memo of second appeal and in my view, none of the questions can be said to be a substantial question of law. Issue No. 1 is purely a question of fact and there is concurrent finding of facts by both the courts below which cannot be interferred by this Court in second appeal under Section 100 CPC. 10. A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram vs. Ameerchand- (1981) 2 SCC 414, considered the effect of amendment made in Section 100 of the CPC in 1976, and held as under: 4 S.B. Civil Second Appeal No. 446/2010 “......The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law.” 11. The Hon'ble Supreme Court, in Ramaswamy Kalingaryar Vs. Mathayan Padayachi-AIR 1992 SC 115, while considering the scope of Section 100 CPC, held as under: “......Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of S.100, C.P.C., which defines the contours of the power of the High Court in second appeal. .....” 12. The Hon'ble Supreme Court in Gurdev Kaur & Others Vs. Kaki & Others-(2007) 1 SCC 546, considered the true import, scope and ambit of Section 100 CPC by referring the Section 100 CPC, before and after amendment of 1976, various declarations of law by Privy Council and Supreme Court, Legislative background in the 54th Report of the Law Commission of India submitted in 1973, Historical perspective, Rational behind 5 S.B. Civil Second Appeal No. 446/2010 permitting second appeal on substantial question of law, and held as under: “81. Despite repeated declarations of 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 in 1976. 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 crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the Hihg 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.” 13. Since no substantial question of law is involved in this second appeal, therefore, the same is dismissed in limine. (Narendra Kumar Jain),J. Manoj, Item No.28.