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1995 Supreme(Raj) 581
RAJASTHAN HIGH COURT (JAIPUR BENCH)
Honble MOHINI KAPUR & A.A. KHAN, JJ.
M/s. General Produce Co. Ltd., Jaipuria Mansion, Jaipur - Appellant
Versus
M/s. Sonmati Holdings, Johari Bazar, Jaipur - Respondents
D.B. Civil Special Appeal No. 73 of 1993
Decided On : November 03, 1995
Paras Kuhad, for Appellant S.M. Mehta & R.S. Mehta, for Respondent
Headnote:(a) Rajasthan Premises (Control of Rent and Eviction) Act, 1950 – Sec. 22(2) and Civil Procedure Code – Secs. 96 & 100 and Rajasthan High Court Ordinance – Secs. 18 (1) & 19 – An appeal will lie against the judgment of Single Judge under the Ordinance – But the Special statute will prevail over the general law – The expression `Second Appeal used in the Premises Act in Sec. 22(1) is clear in the language – It bars a secon appeal – Single Judge judgment was rendered under Section 22(1) read with sections 96 of C.P.C. and Sec. 19 of the Ordinance – Held – This appeal is not maintainable. (Paras 10 and 12)(b) Rajasthan Premises (Control of Rent and Eviction) Act, 1950 – Sec. 13(1) (e) – Sub-letting –Meaning explained – Parting and vesting of possession by tenant – Divesting of physical possession and also of right to possession – Facts and circumstances of the case will decide the case – Burden will be initially on the landlord and on its proving, it will swift on the tenant to rebut. (Paras 17 and 18)(c) Civil Procedure Code – Secs. 35 A and 35B – Compensatory costs in respect of false or vexatious claims or defences – Present case was instituted in 1976 – Suit was resisted on false and frivolous grounds, changing pleas, undertaking not given, thus this avoidable litigation was prolonged – High Court cited a case in which [(1994) 6 SCC 9) exemplary cost of Rs. 1 lac was awarded – In the present case, exemplary cost of Rs. 25,000/- was fixed –Principle for such costs stated.
A second appeal u/S. 100 of the CPC would not be on facts but on substantial question of law. Ordinarily re-appraisal of facts in a second appeal u/S. 100 is not permissible. But an appeal u/S. 18(1) of the Ordinance would permit reappraisal of facts as well as consideration of point of law. But for the provision contained in Sub-Section (2) of Section 22 of the Act of 1950 an appeal, which would-have been a second appeal in the facts of the case, was maintainable u/S. 18(1) of the Ordinance of 1949 though such an appeal would not be a second appeal within the meaning of the term u/S. 100 of the Code of Civil Procedure. The appeal before the learned Single Judge was an appeal u/S. 22(1) of the Act read with S. 19 of the Ordinance and Section, 96 of the CPC. A second appeal, had it not been barred by Section 22(2) of the Act, would have been an appeal u/S. 18(1) only and not u/S. 100 of the Code of Civil Procedure. (Para 10)
The power of this Appellate Bench to entertain an appeal from the judgment of the learned Single Judge which power is otherwise undoubtedly vested in this Bench u/S. 18(1) of the Ordinance, stands curtailed and restricted by the express provisions of Sub- Section (2) of Section 22 of the Special law wherefrom the power of this Court originates. (Para 12)
Sub-tenancy includes exclusive possession. Parting of the legal possession means possession with the right to include and also right to exclude others. Sub- tenancy, as stated above, means transfer of an exclusive right to enjoy third party with the consent of the tenant would not amount to parting with possession. There must be vesting of possession by the tenant in another person by divesting himself not only of physical Possession but also of the right to possession. But exclusive possession itself is also not decisive in favour of the property in favour of third party. Mere user of the tenanted property by the lease and against a mere license, for even the grant of exclusive possession might turn out to be only a license and not a lease where the granter himself has no power to grant the lease. Therefore, in the last analysis the question whether a transaction is a lease or license turns on the operative intention of the parties. There is no simple and single litmus test to distinguish one from the Other. The ultimate decision would depend upon the facts and circumstances of the given case. (Para 17)
The initial burden to prove sub-letting is on the landlord. If the landlord prima-facie shows that the tenant who was in exclusive possession of the premises, further let out the same for valuable consideration, it would then be for the tenant to rebut the evidence. (Para 18)
Awarding of costs is a matter of the discretion of the Court. The general rule is that cost follows the result of the suit. Conduct of a party to the suit is certainly relevant for awarding the cost though an unfair conduct is not relevant to decide the merits of the suit itself. Non- awarding of exemplary cost in an exceptionally. deserving case of abuse of the process of Court may not only encourage and prolong the avoidably legal life of a frivolus litigation but also may cause erosion in the very system of administration of justice in civil cases. Looking to the increasing situation that more often than not a litigant in civil matters leaves the legacy of litigation for his heirs and a cow is to be sold for getting a goat through courts it is all the more necessary that exemplary costs be awarded in exceptionally deserving cases. (Para 32)
We fail to overlook these instances of relevant conduct of the appellant and have reasons to believe that the conduct of the appellant clearly shows not only the abuse of the process of the court but scant regard to its orders. Efforts to prolong the life of this litigation for about a quarter of a century were deliberately and consciously made and all that makes the present case as an exceptional case for award of exemplary cost which we fix at Rs. 25000/-. (Para 33)
(2). The premises in suit is a three room flat with a passage, a bath, a w.c. a store and open space in a building known as `Jaipuria Mansion situate at Mirza Ismail Road, Jaipur. This flat originally belonged to a Com- pany, M/S. Bharat Agencies Ltd. which later on stood amalgamated with another Company called M/s. Jaipur Stores Pvt. Ltd., which was subsequently changed to M/s. Jaipur stores Pvt. Ltd. the predecessor in title of the present respondent. This flat was on the tenancy of the appellant. Under a rent note executed on April 16, 1956 between M/S. Bharat Agencies Ltd. and the appellant the suit premises was continued in the possession of the appellant as tenant on a monthly rent of Rs. 125/- for a period of 11 months. Clause 10 of this rent note provided that the lessee shall not assign, sub-let or part with the possession of the leased premises without the consent of the lessor in writing.
(3). The appellant allegedly violated certain conditions of the rent note. Therefore, M/S. Rajputana Stores Pvt. Ltd., the original plaintiff, filed a suit for eviction of the appellant on July 16, 1976 on the grounds of reasonable and bonafide personal necessity, material alteration in and substantial damage to the leased property, default in payment of rent and subletting/ parting with possession of the suit premises. The trial Court, the Adl. Distt. Judge No. 5 Jaipur City, Jaipur, vide his judgment and decree dated August 13, 1985 decreed plaintiffs suit for eviction on the grounds of reasonable and bonafide personal necessity of the landlord and subletting/parting with possession of the leased premises by the appellant to M/s. Traders and Miners Ltd. Jaipur and M/s. Aditya Mills Ltd. The appellant preferred an appeal to this Court u/S. 96 of the Code of Civil Procedure. The appeal was heard by the learned Single Judge, who by his impugned judgment dismissed the ground of personal necessity of the landlord which failed due to the transfer of the suit premises by the original plaintiff in favour of the present Respondent but confirmed the decree of the trial Court for eviction of the appellant on the ground of sub- letting/parting with possession.
(4). Mr. Paras Kuhad, learned counsel for the appellant urged that the judgment under appeal was bad in law in as much as the factual matrix was not correctly appreciated by the learned Single Judge, in the light of the concept of sub-tenancy or parting with exclusive possession of the leased premises by the appellant in favour of the aforesaid two Companies. The learned counsel justified the maintainability of the appeal on the reasoning that this Appellate Bench would only be exercising its power in continuation and completion of the jurisdiction of this Court to hear an appeal and not for a second time. Reliance was placed on the case of Budge Municipality vs. Mongru Mia, 1953 AIR S.C. 433 in support of this contention.
(5). We think we should examine Mr. Kuhads later submission first.
(6). As stated above this appeal has been filed u/S. 18 (1) of the Ordinance of 1949. Section 18(1) reads as under–
``S. (18). Appeal to the High Court from Judges of the Court: (1) ``An appeal shall be to the High Court, from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintenden- ce of the High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentenc
