The requirement of substantial questions of law and the impact of new tenancy acts on ongoing proceedings must be carefully considered by the court.

JUDGMENT :

1. By concurrent judgments by the two Courts below i.e. the Court of Munsiff, Basohli (hereinafter to be referred as “the Trial Court”) and the Court of Additional District Judge, Kathua (hereinafter to be referred as “the 1st Appellate Court”), have decreed the suit for eviction of the predecessor-in-interest of the appellants from the house and land appurtenant thereto, situated at Basohli, District Kathua in favour of the predecessor-in-interest of respondent/plaintiff. The appellants, who happen to be the succession-in-interest of defendant/tenant, have filed the present Second Appeal being aggrieved of the aforesaid judgments/decrees.

2. The 1st Appellate Court dismissed the appeal of the defendant vide impugned judgment dated 03.08.2012 affirming the judgment and decree of the Trial Court, which was rendered on 29.04.2006. The original suit was filed on 22.12.1988. The decree has been passed in favour of the landlord/predecessor-in-interest of the respondent herein, on the ground of personal bona fide necessity and on the ground of requirement for re-building of the suit property.

3. The appellants, who happen to be the successor-in-interest of the original defendant in the suit, have challenged the impugned judgments, mainly on the ground that by the time, the 1st Appellate Court decided the appeal, the provisions of Jammu and Kashmir (Residential and Commercial Tenancy) Act, 2012 (for short, the Act of 2012) had come into operation and Jammu and Kashmir Houses and Shops Rent Control Act, 1966 stood repealed. It is urged that in view of the aforesaid development, the learned 1st Appellate Court was required to transfer the proceedings to the Rent Controller or Appellate Rent Tribunal constituted in terms of the provisions contained under the Act of 2012 as the Civil Court had no jurisdiction to continue with the proceedings after enforcement of Act of 2012. It has been further contended that as per case of the landlord, she desired to use the suit property for commercial purpose, which is not permissible and this aspect of the matter has been ignored by both the Courts below. It is also contended that the learned 1st Appellate Court has not given reasons for its decision on each point independently and the judgment rendered by the said Court does not fulfil the requirements of Order 41 Rule 31 of CPC. It is further contended that there was no evidence before the learned Trial Court to show that the landlord had financial resources to effect re-construction of the suit premises and this aspect of the case has also been ignored. The appellants have also contended that the landlord has failed to establish the achievement of public benefit by reconstruction of the building and the Courts below have failed to assess comparative advantage and disadvantage of the parties before passing the impugned judgments.

4. I have heard learned counsel for the parties and perused the record of case including the impugned judgments and record of the Trial Court as well as the record of the 1st Appellate Court.

5. Before examining the merits of contentions raised by the appellants and in order to determine as to whether any substantial questions of law has arisen in this appeal, it would be necessary to understand the scope of Second Appeal as also the procedure for entertaining the same. In this regard, Section 100 of CPC is required to be noticed, which provides that an appeal shall lie from the decree passed in an appeal, if the High Court is satisfied that the case involves a substantial question of law. The term "substantial question of law" has been explained by the Supreme Court in the case of State Bank of India and Ors. vs. S.N. Goyal, (2008) 8 SCC 92. The Supreme Court after noticing the provisions of Section 100 of CPC, has explained as to what constitutes a substantial question of law, in the following manner :

“9.1 Second appeals would lie in cases which involve substantial questions of law. The word 'substantial' prefixed