2001 Supreme(SC) 1205

2001(6) Supreme 764
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Syed Shah Mohd. Quadri and S.N. Phukan, JJ.
Leela Soni and Ors. -Appellants
versus
Rajesh Goyal & Ors. -Respondents
Civil Appeal No. 6116 of 2001
(@ SLP (C) No. 11661/2000)
Decided on 3-9-2001
Counsel for the Parties :
For the Appellants : Shiv Sagar Tiwari and Bishesha nand Jha, Advocates.
For the Respondents : Satyapal Khushal Chand Pasi, Sushil Kumar Jain, A.P. Dhamija, Ms.Pratibha Jain and Pradeep Agarwal, Advocates.

IMPORTANT POINT
The High Court has not exceeded its jurisdiction in recording the findings of fact in Second Appeal u/s. 100 C.P.C. because S. 103 CPC gives power to High Court to determine issues of fact which had not been determined by lower appellate Court or wrongly determined

Headnote:(i) M.P. Accommodation Control Act, 1961-Sections 12(1)(a), 12(3), 13(5) and 13(6) -Eviction petition on ground of non-payment -Tenant pays rent after service of summons -Trial Court dismissing-Appeal to 1st Appellate Court-Tenant not depositing during pendency of appeal-Landlord s application u/s. 13(6) to strike out his defence-Whether Court can strike the defence? (Yes).

       Held : Clause (a) of sub-section (1) of Section 12 of the Act embodies one of the permissible grounds on which a suit for eviction of a tenant can be filed. It says that if the tenant had neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord, in the prescribed manner, the landlord can seek eviction of the tenant. It may be noticed that the rigour of clause (a) of sub-section (1) is softened by sub-section (3) of Section 12 of the Act which forbids the court from making an order of eviction against the tenant on the said ground if the tenant complies with Section 13 of the Act. Sub-section (1) of Section 13 of the Act enables a tenant to deposit in the Court or pay to the landlord the arrears of rent within one month of service of writ of summons or notice of appeal or other proceeding, or within such further time as the court may allow, and thereafter continue to deposit or pay the rent month by month by the 15th of each succeeding month, till the decision of the suit, appeal or proceedings, as the case may be. Sub section (2) of Section 13 deals with payment of rent in case of dispute as to the amount of rent payable by the tenant and is not relevant for our purpose. Sub-section (5) of Section 13 directs that if a tenant makes deposit or payment under sub-sections (1) and (2) of that section, no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default in payment of rent by the tenant. In such a case, the Court is enabled to allow such cost to the landlord, as it may deem fit. Sub-section (6) which is supplement to sub-section (5) of Section 13, says that if a tenant fails to deposit or pay any amount as required by that section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit, appeal or proceedings, as the case may be. (Para 11)

       (ii) M.P. Accommodation Control Act, 1961-Sections 12(1)(o)(ii) r/w 12(11) and 12(1)(m)-Difference between the two grounds of eviction unauthorised encroachment and unauthorised construction.

       Held : A combined reading of clause (o) of sub-section (1) and sub-section (11) of Section 12 of the Act shows that it s the failure of a tenant to comply with the decree/direction of the Court to vacate the portion of accommodation unauthorisedly occupied by him and to pay the damages which will entail the order of eviction on the ground contained in clause (o). (Para 12)

       Whereas clause (m) speaks of unauthorised construction within the accommodation let out to the tenant, which has materially altered the accommodation to the detriment of the landlord s interest or is likely to diminish its value substantially, clause (o) talks of unauthorisedly occupying a portion or portions of the accommodation not forming part of the tenanted accommodation and not vacating the same in spite of written notice of the landlord to the tenant. In the latter case, there is no need for the landlord to prove that the unauthorised occupation of a portion or portions of the accommodation not let out to the tenant, is to the detriment of landlord s interest or that it diminishes the value of his accommodation substantially. (Para 14)

       (iii) M.P. Accommodation Control Act, 1961-Sections 12(1)(a) r/w 12(3), 12(1)(o) r/w 12(11), 13(5) and 13(6)-C.P.C. 1908-Sections 100, 101, 103-Eviction petitions u/ss. 12(1)(a) and 12(1)(o)-Tenant paying rent-Order passed to vacate encroached disputed portion-In appeal, appellate Court intermixed Sections 12(1)(o) with 12(1)(m) dismissed petition-In Second Appeal High Court allowed the petition-Whether High Court can determine question of fact in Second Appeal? (Yes)-Appeal dismissed.

       Held : Within the parameters of the provisions discussed above, the trial court gave the benefit of clause (5) of Section 13 of the Act to the tenant in regard to default in payment of rent and in regard to unauthorised occupation of the accommodation not let out to the tenant, it passed the decree in terms of sub-section (11) of Section 12 of the Act against the tenant without making any order of eviction against the tenant. It appears that in his appeal before the Second Additional Judge to Distt. Judge, Shivpuri, against the judgment and decree of the trial-court, the landlord filed an application under Section 13 (6) of the Act alleging that the tenant defaulted in depositing the rent during the pendency of the appeal but the tenant did not refute the allegation by putting forth any acceptable explanation. The first appellate Court on misconception of law wrongly placed the burden on the landlord to prove that the rent was not paid during the pendency of the appeal and erroneously dismissed that ground. On the question of non-compliance of the decree of the trial court in regard to vacating the portion unauthorisedly occupied by him (tenant) and paying the compensation, the first appellate court held that the landlord had not shown that by constructing a temporary shed and converting it into a room, the value of the suit accommodation had been reduced or its nature had been changed or in any way the interest of the landlord had been prejudiced. The first appellate court not only failed to notice the distinction between clauses (m) and (o), pointed out above, but also read the requirements of clause (m) into clause (o) of sub-section (1) of Section 12 of the Act and misdirected itself. To say the least both the conclusions of the first appellate court are erroneous and unsustainable. The High Court, on the basis of record before it, held that the averments made in the application made by the landlord under Section 13(6) of the Act remained unrebutted and uncontroverted and recorded the finding that the rent remained unpaid during the pendency of the appeal and as such the defence of the tenant ought to have been struck out and the appeal should have been allowed by the first appellate court. It further held that in execution of the decree of the trial court, some of the legal representatives of the original tenant filed an undertaking that they would comply with the decree of the trial court in regard to vacating the disputed portion which was recorded by the executing court. But that undertaking was not fulfilled. Consequently, there was no option left for the first appellate court except to pass an appropriate order under clause (o) of sub-section (1) of Section 12 of the Act. (Paras 15, 16 & 17)

        There can be no doubt that the jurisdiction of the High Court under Section 100 of the Code of Civil Procedure (C.P.C.) is confined to the framing of substantial questions of law involved in the second appeal and to decide the same. Section 101 of C.P.C. provides that no second appeal shall lie except on the grounds mentioned in Section 100 of C.P.C. Thus it is clear that no second appeal can be entertained by the High Court on questions of fact much less can it interfere in the findings of fact recorded by the Lower Appellate Court, This is so, not only when it is possible for the High Court to take a different view of the matter but also when the High Court finds that conclusions on questions of fact recorded by the first appellate court are erroneous [see: Afsar Sheikh & Anr. v. Soeman Bibi & Ors. (1976(2) SCC 141)]. It will be apt to refer to Section 103 of C.P.C. which enables the High Court to determine the issues, of fact. (Paras 19 & 20)

       The section, noted above, authorises the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations: (1) when that issue has not been determined both by the trial court as well as the Lower Appellate Court or by the Lower Appellate Court, or (2) when both the Trial Court as well as the Appellate Court or the Lower Appellate Court has wrongly determined any issue on a substantial question of law which can properly be the subject matter of second appeal under Section 100 of C.P.C. [see : Jadu Gopal Chakravarty (D) by his LRs. v. Pannalal Bhowmick & Ors. (1978(3) SCC 215)]. Inasmuch as in the instant case on both the issues relating to clauses (a) and (o), referred to above, on account of its erroneous approach the first appellate court did not determine the relevant issues, in our view, the High Court was well within its jurisdiction in recording the afore-mentioned findings of fact for which the evidence was on record as Section 103 of the C.P.C. empowers the High Court to determine such issues of fact. In the result, we find no illegality in the judgment and order of the High Court, under challenge. The appeal is devoid of any merit. It is dismissed with costs. (Paras 21, 22 & 23)