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SUPREME COURT OF INDIA
J.K. MAHESHWARI, SANJAY KAROL, JJ.
Rashmi Kant Vijay Chandra & Ors. – Appellants
Versus
Baijnath Choubey & Company – Respondent
Civil Appeal No. 10545 of 2024 (Arising out of SLP (C) No. 24805 of 2023)
Decided on : 13-09-2024
Civil Procedure Code, 1908 – Section 100 – Second appeal – Eviction of tenant on the ground of sub-letting – High Courts are required to hear second appeals under Section 100 of CPC only on the satisfaction that there exists a substantial question of law and the appeal has to be heard on question so formulated – High Court has proceeded to discuss issue of sub-letting of suit premises and decree of First Appellate Court was set aside on that ground – There is no question framed about lack of evidence, sub-letting or incorrect appreciation of facts by First Appellate Court on which final finding of High Court is returned – There is no discussion by High Court, as to reasons required for departure from substantial questions of law framed at stage of admission or in impugned order – Impugned judgment overturns finding of fact of First Appellate Court qua sub-letting without framing a substantial question of law in this regard at any stage – Impugned order is liable to be set aside on this ground – Eviction decree passed by First Appellate Court restored – Respondent-defendant directed to hand over vacant physical possession of suit property. (Paras 17, 19, 20, 21, 22 and 23)
Facts of the case:
Questions of law framed by High Court for admission of appeal, pertain to necessary parties, non-joinder of such parties, and the effect it has on suit filed by plaintiff-appellants.
Findings of Court:
There is no question framed about lack of evidence, sub-letting or incorrect appreciation of facts by First Appellate Court, on which final finding of High Court is returned. Furthermore, there is no discussion by High Court, as to reasons required for departure from substantial questions of law framed at the stage of admission or in impugned order.
Result : Civil Appeal allowed.
ORDER :
Leave Granted.
2. This appeal is directed against the judgment and order dated 24th August, 2023 passed in S.A.No.100 of 2021 by the High Court of Calcutta, whereby the judgment and order dated 12th December, 2019 passed by the City Civil Court at Calcutta1[Hereinafter referred as ‘First Appellate Court’] in Title Appeal No.14/2018 was set aside. The First Appellate Court set aside the findings returned by the Presidency Small Cause Court2[Hereinafter referred to as the ‘Trial Court’] in favour of the respondent-tenant, at Calcutta in Ejectment Suit No.1079 of 2002 by order dated 27th November, 2017.
3. The issue inter se the parties, is one between a landlord and tenant. The facts stretch about 90 years in time beginning on 19th February, 1933, when one Harak Chand Veljee by a registered deed of settlement, settled premises Nos.37, 38 and 39, Ezra Street, Calcutta-700001 in Trust of which the present plaintiff-appellants were the trustees. One Baijnath Choubey was a tenant in respect of part of the suit premises. The tenancy stood in the name of M/s. B.N. Choubey and Company (a partnership concern). He died having created a Trust to care for his son who was in an asylum at Agra. The said Trust (which allegedly came to an end with the death of the son in 1949 and his daughter having passed away issueless) carried on business and the plaintiff-appellants allege that the trustees of the respondent-tenant formed an illegal partnership with two individuals, namely, Sarbottam Das Mundra and Chetandas Mundra. On 31st May, 1984, the plaintiff-appellants came to know that one of the trustees of the respondent or his legal representatives did not exist and, therefore, the business was being carried on by perpetuating fraud.
4. The case of the plaintiff-appellants is that the respondent-defendant had illegally inducted a sub-tenant into the subject premises. An eviction notice was served by the plaintiff-appellants on 22nd July, 1984. Thereafter, the suit for eviction, subject matter of the present lis, came to be filed.
5. The Trial Court framed 9 issues. The following is a snapshot of the issues as framed and its corresponding findings. For the purposes of clarity, it is mentioned that the appellants are the plaintiffs and the respondent is the defendant:
As such, the Trial Court dismissed the Suit.
| S.No. | Issues | Findings |
| 1. | Is the suit maintainable in its present form and prayer? | In favour of the defendant |
| 2. | Is there any cause of action to file the instant suit? | In favour of the plaintiffs |
| 3. | Is the plaintiff Trust owner of the suit property as described in the schedule of the plaint? | In favour of the plaintiffs |
| 4. | Did the plaintiffs send a notice of eviction? Was there proper service of the same? If so, was the same legal and valid? | In favour of the plaintiffs |
| 5. | Is the defendant a defaulter in payment of rent? | In favour of the defendant |
| 6. | Is there any relationship of landlord and tenant in between the parties to this suit? | In favour of the defendant |
| 7. | Has the defendant sublet the suit premises? | In favour of the plaintiffs |
| 8. | Are the plaintiffs entitled to the relief as prayed for? | In favour of the plaintiffs |
| 9. | To what other relief or reliefs, are the plaintiffs entitled? | In favour of the plaintiffs |
As such, the Trial Court dismissed the Suit.
6. The plaintiff-appellants preferred an appeal against the Trial Court judgment, which came to be numbered as Title Appeal No. 14/2018. The respondent-defendant also preferred cross-objection thereafter on 08.07.2019. The learned First Appellate Court vide Judgment dated 25.07.2019, dismissed the cross-objections preferred on the ground of delay and that such cross-objections have been preferred after the plaintiff-appellants had concluded their arguments in the appeal.
7. The learned First Appellate Court set aside the findings of the Trial Court and decreed the suit in favour of the plaintiff-a
Second appeal – High Courts are required to hear second appeals under Section 100 of CPC only on the satisfaction that there exists a substantial question of law and the appeal has to be heard on que....
Finding of fact could not be disturbed by Court in Second Appeal.
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The burden of proof to establish subtenancy is on the landlord, and the court may affirm an eviction decree if the landlord successfully demonstrates the creation of subtenancy.
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