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1999(7) Supreme 19
Supreme Court of India
(From Rajasthan High Court)
A.P. Misra & N. Santosh Hegde, JJ.
Hari Singh -Appellant
versus
Kanhaiya Lal -Respondent
Civil Appeal No. 10756 of 1996
Decided on 7-9-1999
Counsel for the Parties :
For the Appellant : Aruneshwar Gupta, Advocate.
For the Respondent : Sushil Kumar Jain and P.C. Jain, Advocates.
Held : So far the question of sub-letting the finding was based on the deposition of the witnesses to whom the disputed premises was sub-let. Their testimony was rejected by the High Court mainly on the basis that there is no detail pleading pertaining to the period of sub-tenancy and even the witnesses has not produced any receipt of payment of rent. It is not in dispute that there is pleading that the disputed premises was sub-let. The detail, if any, can be supplemented through evidence. Mere lack of details in the pleading cannot be reason to set aside concurrent finding of facts. Similarly, the High Court interfered with the concurrent finding of facts that nuisance was created by the respondent by obstructing the passage leading to the appellant house by keeping onion bags leaving out of space of 11 feet to 3 feet only. The fact of this obstruction is also supported by the Commissioner report submitted in the present proceedings. The finding recorded on sub-letting and nuisance by both the courts below being based on evidence on record its setting aside by reappraisal of evidence, and in any case without framing any substantial question of law by the High Court cannot be sustained and further we also do not find any substantial question of law arising therein. Learned counsel for the respondent tried to submit with force by attempting to take us to the evidence of the witnesses to show their unworthiness for reliance. It is neither a case of no evidence nor perverse finding. All these submissions are within the realm of appreciation of evidence which should not have been interfered by the High Court for less for us to examine. (Para 16)
(ii) Code of Civil Procedure, 1908 - Section 100 - Second appeal-Condition precedent to exercise of power of appellate Court - Existence of substantial question of law is sine qua non.
Held : The jurisdiction of courts in first appeals, second appeals or revisions are all, to the extend conferred by the legislature. No litigant possesses any natural or inherent right to appeal against any order, unless a statute confers and it is to the extent it is conferred. Thus area to challenge is also hedged by the legislature hence challenge to the impugned order has to be confined within such limitation. How legislature limits such right could be visualised from Section 96 and Section 100 CPC as it stood prior to the amendment by the Amendment Act 1976 (104 of 1976) and as it stands after this amendment. (Para 7)
Section 96 deals with appeal from original jurisdiction. Its language confers very wide right both on the appellant to challenge and jurisdiction of the appellate court to adjudicate, when it uses the words, “An appeal shall lie from every decree passed by any court exercising original jurisdiction”. Even this wide expanse is shrunk through sub-sections 3 and 4. In other words, no appeal shall lie by virtue of sub-section 3, where it is a consent decree and sub-section 4 forbids appeal from an order in a suit cognizable by courts of small causes, in which the value of the subject matter does not exceed an amount referred to therein and in other cases only on question of law. Prior to the amendment of Section 100 CPC a second appeal could have been filed before the High Court on the grounds as set out in clauses (a) to (c) of Section 100(1). So the purpose for amending Section 100 by the aforesaid Amending Act was to further limit the jurisdiction of the High Court. Prior to the amendment the interference could have been where an order is contrary to law or some usage having the force of law. But now it could only be if any substantial question of law arises. The words ‘substantial question of law’, brought in has significance not superfluous. So now interference cannot be only because order is contrary to law, but when the disputed issues raises substantial question of law. Creation of powers or limiting such powers in the appellate authorities is always a decision based on public policy expressed in the maxims interest reipublicae ut sit finis litium. This policy brings to finality some issues or a litigation at some point of time. If no appeal is provided, the original order become final. Thus it is open for the legislature to bring finality to the adjudication on question of facts upto the stage of first appeal and limit the second appeal to question of laws or to the substantial question of law to such other limitation which the legislature deems fit and proper. Sub-section (3) places an obligation on the appellant to precisely state the substantial question of law involving in the appeal. Sub-section 4 confers on the High Court an obligation to formulate the substantial question of law, if it is satisfied that it is involved. Then sub-section 5 confers right on the respondent to urge that no substantial question of law arises. The proviso supplements the discretion to the court to formulate if some other substantial question of law arises if not formulated. The aforesaid scheme of this Section clearly reveals the intents of legislature to limit the exercise of power of the High Court under Section 100. Thus existence of substantial question of law is sine qua non for the exercise of power by the High Court under this Section. (Paras 8, 9 & 10)
Judgment
Misra, J.-The issue raised in this appeal arises under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as ‘the Act’). The appellant is the landlord and respondent the tenant. The question raised by the appellant is, whether the High Court was right in setting aside the concurrent finding of facts in second appeal? In other words, whether there existed any substantial question of law and the High Court without framing any substantial question of law was justified in interfering with the concurrent finding of both the courts below? The appellant also challenges that part of the order of the High Court confirming the first appellate court’s order which holds no default in payment of rent by the respondent. In short, the suit of the landlord was for the eviction of the respondent on grounds of default in payment of rent, sub-letting of the premises in question and creating nuisance which was decreed. The appellate court confirmed the finding of sub-letting and nuisance but set aside the finding of default. In second appeal the High Court confirmed first appellate court finding that there is no default but set aside the concurrent findings that the respondent sub-letted the premises and created a nuisance.
2. In order to appreciate the controversy raised we deliver the following short facts.
The respondent took two shops and one godown along with Chabutra being a portion of House No. 2131, Subji Mandi, Johri Bazar, Jaipur, at a monthly rent of Rs. 45 per month with Rs. 5 per month for water charges. The case of the appellant-landlord is that respondent sub-letted one of the shops to one Mohd. Ishaq and sub-letted the godown to one Hamid. This apart, he failed to pay the rent for a period of about 2 years and 11 months totalling Rs. 1750/-. He also blocked the 11 feet wide entrance which is the only passage for the appellant for going to his residence by placing the bags of onion and other vegetables on both the side of the passage. In fact it blocks about 8 feet passage leaving hardly 3 feet which is causing serious nuisance to the appellant. On 15th February, 1977 a notice was served on the respondent followed by filing a suit on 12th January, 1978 for eviction from the said premises on the ground of default in payment of rent, sub-letting and nuisance. Within one week on 19th January, 1978 the appellant also filed another suit for fixation of standard rent under Section 6 of the aforesaid Act. On 3rd May, 1978 the trial Court in the later suit fixed provisional standard rent at Rs. 100 per month under Section 7 of the said Act w.e.f. 12th January, 1978. The respondent as a consequence of the same deposited rent at the said rate for the period 12th January, 1978 to 16th September, 1978. However, the respondent defaulted in paying the rent at this rate for a period subsequent to 17th September, 1978. This fact was incorporated in the plaint through an amendment to his plaint which was allowed and the same was incorporated as para 5(A) of the said plaint. This amendment pleads default of payment of rent for a period subsequent to the said provisional fixation of rent and consequential liability for eviction under Section 7(4) of the Act.
3. According to the respondent, the trial Court on 13th April, 1978 determined the provisional rent at Rs. 45 per month under Section 13(3) of the said Act hence determination of provisional standard rent under Section 7 on 3rd May, 1978 would only means fresh redetermination or modification of the amount payable under Section 13(3) has to be made before consequence of eviction is to be implemented. On the other hand counsel for the appellant stressed that the trial Court struck out the defence of the respondent under Section 13(5) on account of his failure to deposit provisional rent as fixed under Section 7. The appeal against this was also dismissed by the appellate authority on 5th August, 1983. Even revision petition was also dismissed by
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