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HIMACHAL PRADESH HIGH COURT
Rakesh Kainthla, J.
Baba Sarabojot Singh Bedi – Appellant
versus
Sada Ram – Respondent
RSA No.81 of 2007
Decided on 21.8.2023
(A) Civil Procedure Code, 1908 – Order 41 Rule 27 – Production of additional evidence – A party is not entitled to produce additional evidence unless it shows that evidence could not be produced before Trial Court despite exercise of due diligence – Necessity to produce additional evidence arose because Courts below held that plaintiff had failed to prove gift deed in his favour – Purpose of filing application is to get rid of findings recorded by Courts below – This is not permissible – Document sought to be produced on record is not relevant for adjudication of dispute pending between parties and same cannot be taken on record. (Paras 19, 21, 24 and 25)
(B) Civil Procedure Code, 1908 – Order XX Rule 12 – Suit for recovery of possession and mesne profit – Non-attornment of tenancy in favour of plaintiff-appellant – Plaintiff asserted that defendant had attorned in his favour – He never examined himself – Adverse inference has to be drawn that version of plaintiff regarding attornment is not correct – Once, it is so held, plaintiff cannot be held entitled to possession and mesne profits – No infirmity in findings recorded by Courts below – Appeal dismissed. (Paras 34 and 35)
(C) Civil Procedure Code, 1908 – Section 100 – Second Appeal – Scope and ambit – Section 100 of CPC restricts right of second appeal, to only those cases, where a substantial question of law is involved – Existence of a “substantial question of law” is sine qua non for exercise of jurisdiction under Section 100 of CPC – Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on facts and circumstances of each case – Paramount overall consideration is need for striking a judicious balance between indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in life of any lis. (Paras 29 and 35)
Result: Appeal dismissed.
JUDGMENT
Rakesh Kainthla, J.—The present appeal is directed against the judgment and decree passed by learned Additional District Judge, Una, vide which the appeal filed by the appellant (the plaintiff before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking possession by ejectment of the defendants from the shop in disputed premises denoted by letters A B C D E F G H, shown in the site plan, being part of the land measuring 0-13-15 hectares, bearing Khasra No. 1382 and 1388, situated in Village Ishpur, Tehsil and District Una, H.P., as entered in Misal Hakiat for the year 1994-95. It was pleaded that this land was earlier owned and possessed by Smt. Jeeto. She constructed many shops on the suit land and leased out the shop in dispute to the defendant at a monthly rent of ? 100/-. She gifted the shop to the plaintiff on 30.11.1995 The defendant attorned to the plaintiff after the execution of the gift deed. The defendant failed to pay the rent to the plaintiff for more than three years. The defendant is in arrears of rent w.e.f. 1.02.1997 to 31.01.2000 and a sum of ?3,600/- is due from the defendant. The plaintiff issued a notice terminating the tenancy of the defendant and calling upon him to vacate the premises within 15 days from the date of the receipt of the notice. The defendant failed to vacate the premises, hence, the suit was filed for the recovery of the possession and the mesne profit.
3. The suit was opposed by filing a written statement denying the contents of the plaint. It was asserted that the defendant dealt with Lalji, the real nephew of Smt. Jeeto. There is a dispute about the title of the shop premises between the plaintiff, Kishan Chand and Pritam Singh. A Civil Suit is pending before the learned Sub Judge, Court No.2, Una. Kishan Chand and Pritam Singh also served notice upon the plaintiff and supplied the copy of the stay order passed by Sub Judge, Court No.2, Una in case titled Krishan Chand Vs. Jeeto, vide which plaintiff and Smt. Jeeto were restrained from receiving the rent of the shop in question. The parties used to visit the shop and asked the defendant not to pay the rent until the settlement of a dispute between the parties. The defendant approached Jagdish Lal Saini, Power of Attorney of the plaintiff and asked him to issue the receipt but he refused to do so. Subsequently, Jagdish Lal Saini and Lali Ji Power of Attorney of Kishan Chand and Pritam Singh, visited the shop and advised the defendant not to pay the rent till the decision of the Court. The plaintiff has not disclosed the correct facts to the Court. The defendant is ready to pay the arrears of rent to the owner. Hence, it was prayed that the suit be dismissed.
4. A replication denying the contents of the written statement and affirming those of the plaint was filed.
5. Learned Trial Court framed the following issues on 06.01.2001:—
1. Whether the plaintiff is entitled to the possession of the disputed shop by ejectment of the defendant? OPP.
2. Whether the plaintiff is entitled to the use and occupation chares, if so, to what extent? OPP
3. Whether plaintiff is not the owner of the suit premises, if so, who is owner of the suit premises?OPD.
4. Relief.
6. The parties were called upon to produce the evidence and the plaintiff examined Jagdish Lal, (PW-1). The defendant examined himself as (DW-1) and Sh.Bishan Chand(DW-1) (sic).
7. The learned Trial Court held that the plaintiff did not induct the defendant as a tenant. Smt. Jeeto had inducted the defendant as a tenant. The plaintiff failed to prove any deed showing his title. There was a dispute regarding the title and a Civil Suit was pending before the Court. The Court had directed the parties to maintain the st
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