1 SBCSA No. 252/2008 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T S.B. Civil Second Appeal No. 252/08 Ramchandra @ Sriram & Anr. Vs. Balkishan & Ors. 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 appellants. Mr. Rajesh Joshi for the respondents. 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. 108/07 whereby the appeal filed by the appellants defendants 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.34/01, was dismissed. During the pendency of the appeal, an application being I.A. No. 12861/08 came to be filed by the appellants defendants under Order 41 Rule 27 r/w Section 151 of the Code 2 SBCSA No. 252/2008 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 appellants contended that the certified copy of the Voter List issued by the Election Officer shows the names of Vijay Kumar and Ramchandra 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 respondent No.2 Prakash. Learned counsel for the appellant-applicants contended that the Voter List annexed with the application showing names of Vijay Kumar and Ramchandra & their his family members would make out a case that they 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-applicants 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 3 SBCSA No. 252/2008 Rule 27 CPC before 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 plaintiff 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 4 SBCSA No. 252/2008 resorted to 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 those premises, the Apex 5 SBCSA No. 252/2008 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-applicants that 6 SBCSA No. 252/2008 the Court from whose decree the appeal is preferred has refused to admit evidence, since no such efforts were made by the appellant-applicants to produce additional evidence before the first appellate court. So far as seeking to produced additional evidence by producing Voter List, it is not the case of the appellant-applicants that notwithstanding the exercise of due diligence, such document was not within their knowledge or could not, after the exercise of due diligence, be produced by them at the time when the decree appealed against was passed. In the circumstances, therefore, the decision relied on by learned counsel for the appellant-applicants is of no help to them. In this view of the matter, in my view, the applicant-appellants 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.12861/08 is hereby dismissed. Learned counsel for the appellants 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. 252/2008 letting or otherwise parting with the possession of the premises which the respondent plaintiff failed to discharge. Learned counsel for the appellants 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. 252/2008 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. 252/2008 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 facts recorded by the Court of fact i.e. the trial court as also the first appellate court on the issue No.1 is concurrent finding of fact based on sound and proper appreciation of the evidence. Issue No.1 relates to as to whether the defendant tenant Prakash S/o Vasudev has neither tendered nor paid the rent for the period from January 2000 to December 2000 for 12 months and thus committed default in payment of monthly rent for the continuous period of 12 months. So far as issue No.2 is concerned, the issue No.2 relates to otherwise parting with the possession of first floor of the rented premises in favour of the defendant appellant No.1 Ramchandra @ Sriram. Though the issue was decided by the trial court in favour of the defendant Sriram but the first appellate court on sound and proper reappreciation of the evidence came to the conclusion that the original tenant was Shri Vasudev and on his death his son Prakash became the tenant as has been established from the 10 SBCSA No. 252/2008 evidence on record and the tenant Prakash has gone to Dubai and parted with the possession of the suit premises on the first floor of the rented premises to the appellant defendant No.1 Ramchandra @ Sriram without the consent of respondent plaintiff. So far as finding on issue No.3 is concerned, the issue relates as to whether the ground floor of the rented premises has been sub-letted to the appellant defendant No.2 Vijay Kumar @ Vijay or otherwise parted with possession without consent of the respondent plaintiff and both the courts below concurrently found that Prakash defendant No.1 in the suit who was legal representative of original tenant Vasudev and became tenant on the death of Vasudev has sub-letted and parted with the possession of the ground floor of the rented premises without the consent of respondent plaintiff. The respondent plaintiff filed the suit against tenant Prakash defendant No.1 as also against both the appellants namely Ramchandra @ Sriram and Vijay Kumar @ Vijay on the ground that the defendant tenant Prakash has neither paid nor tendered monthly rent to the respondent plaintiff for a continuous period of 12 months i.e. from January 2000 to December 2000 and that tenant Prakash has gone to Dubai and sub-letted the ground floor of rented premises in favour of appellant defendant No.2 Vijay Kumar @ Vijay or otherwise parted with the possession of the ground floor of the rented premises without the consent of respondent plaintiff and tenant defendant Prakash otherwise parted with the possession 11 SBCSA No. 252/2008 of the first floor of the rented premises in favour of the appellant No.1 defendant Ramchandra @ Sriram. The pleadings and evidence produced by the respondent plaintiff is consistent. The tenant defendant Prakash even after service of notice failed to appear and contest the suit and remained ex-parte and ex-parte proceedings were taken against him, even the appellant defendants also did not produce him as a witness in evidence. In the written statement filed by appellants defendants they came with a case that the rented premises subject matter of the suit was taken on rent by Vasudev brother of the defendant No.2 Sriram. The original tenant Vasudev said to be expired in the year 1981 and thereafter his son Prakash continued to be tenant. So far as the appellant No.2 Vijay Kumar @ Vijay, the defendant No.3 in the suit came with a plea that he has family relation with the original tenant Vasudev and has been residing in the rented premises subject matter of the suit with the consent of original tenant. At any rate, it is not the case of the appellant defendant No.2 Vijay Kumar that he has been residing in the rented premises at ground floor with the consent of the respondent plaintiff landlord. Thus, it is admitted position that the possession of part of rented premises i.e. ground floor has been otherwise parted with in favour of Vijay Kumar by the tenant without consent of the plaintiff landlord. Thus, there is concurrent finding of fact so far as parting with the possession of part of rented premises subject matter of the suit without the 12 SBCSA No. 252/2008 consent of the respondent landlord. In the instant case, the respondent plaintiff landlord has discharged the initial onus to prove that the first floor of the rented premises has been subletted or otherwise parted with the possession in favour of defendant No.2 who is appellant No.1 herein namely Ramchandra @ Sriram and ground floor in favour of appellant No.2 Vijay Kumar @ Vijay original defendant No.3 without the consent of respondent landlord. Even the appellants defendants admitted this fact that the defendant No.3 Vijay Kumar @ Vijay has been residing in the rented premises subject matter of the suit in exclusive possession. The respondent plaintiff has succeeded to prove the issue of sub-letting and otherwise parting with the possession of the rented premises as also default in payment of rent. In this view of the matter, the decision relied on by learned counsel for the appellants turn on their own facts and are of no help to them. 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 instant second appeal and therefore, it is dismissed. Interim order stands vacated and stay petition also stands dismissed. (H.R.PANWAR), J. rp