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PETITIONER: FIRM SAGARMAL VISHNU BHAGWAN

       Vs.

RESPONDENT: GAURI SHANKAR AND ORS.

DATE OF JUDGMENT05/10/1988

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) PATHAK, R.S. (CJ)

CITATION:  1988 SCR  Supl. (3) 416  1988 SCC  (4) 719  JT 1988 (4)    37        1988 SCALE  (2)874

ACT:      Rajasthan  Premises (Control of Rents & Evection)  Act, 1950:  Section 13(c) and (6)--Tenant-Eviction of--On  ground of   having  raised  walls  of   Nohara--Whether   ‘material alteration’ caused by tenant.

HEADNOTE:      The   respondent   instituted  a   suit   against   the tenant/appellant  for  recovery  of  rent  as  well  as  his eviction  from a Nohara on various      grounds,  such  as, default in payment of rent, causing material alteration  and damage  to  the property, bona fide  requirement,  etc.  The appellant   contested  the  suit.  Seven  issues   and   two additional issues were framed by the trial Court. Issues  3, 6  and  additional issue No. 1 related to  whether  material alterations  were  made  by the  defendant,  entitlement  to receive  the  due rent and period of  non-payment  of  rent. Issues 2 to 5 were answered in favour of and Issues l and  7 against  the appellant. On issue No. 6 and additional  issue No.  l, the trial Court held that there were no arrears  and hence no decree for eviction on this ground could be passed, and on issue No. 3 it held that the construction should have been made with the consent of the respondent and the raising of  the  height  of the walls had not  caused  any  material alteration  to  the premises. During the  pendency  of  this suit, the respondent filed an application under s. 13(6)  of the  Act for having the defence of the appellan struck  off, but the same was dismissed by the trial Court.      The  Appellate  Court inspite of  concurriny  with  the findings  of  the trial Court on issues 2 to 5  allowed  the appeal,  struck  off  the appellant’s  defence  and  granted decree for eviction.      During the pendency of the second appeal, the act  came to  be amended and availing the benefits of  the  amendments the appellant had the arrears of rent, Interest thereon  and costs  of the suit determined by the Court under s. 13  A(b) and  deposited the entire amount within one month. The  High Court  held that since the appellant had complied  with  the terms  of  9.  13 A(b), the order  of  the  Appellate  Court striking  out  the  defence and decreeing the  suit  on  the ground  of default in payment of tent cannot  be  sustained. However,  the  High Court instead of  allowing  the  appeal,

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                                                 PG NO 417 launched  upon  an  enquiry about  the  correctness  of  the finding  of  the Courts below on issue No. 3  and  concluded that the additional construction must have been made by  the appellant without the consent of the respondent and that the construction  would constitute a material alteration  within the  meaning of Section 13(c) of the Act and  dismissed  the second appeal preferred by the tenant appellant.      In the appeal to this Court, on behalf of the appellant it  was contended that the High Court having held  that  the striking out of the defence and decreeing of the suit by the appellate   Court  on  the  ground  of  default  cannot   be sustained,  should  have  dismissed  the  respondent’s  suit because   no   other   question  arose   or   survived   for consideration, but the High Court exceeded its  jurisdiction and  erred in setting aside a concurrent finding of fact  on issue  No. 3 when no cross-objection had been filed  by  the respondent  and  since  the High Court was  dealing  with  a second appeal, it was subjected to the constraints placed by s. 100 of the Code of Civil Procedure.      On  behalf of the respondent it was contended that  the High Court was not dealing with a second appeal in  exercise of  its powers under s. 100 of the Code of Civil  Procedure, but   was  only  exercising  its   revisional   jurisdiction preserved  by  the proviso to s. 22(2) of the  Act,  and  as such,  the High Court was not bound to confine its  scrutiny to substantial questions of law alone and could examine  the legality  and propriety of the findings of the Courts  below on  issue  No.  3,  and even  without  preferring  a  cross- objection the respondent was entitled to assail the  finding on issue No. 3.      Allowing the Appeal. this Court, HELD: 1. The Judgment of the High Court is set aside and the Judgment  and  decree  of the  trial  Court  dismissing  the respondent’s suit for eviction is restored. [425G]      2. The High Court could not have launched upon a  probe into  the correctness of the findings on issue No. 3 by  the Courts below after it had concluded that the striking off of the defence by the Appellate Court and the decreeing of  the suit on that score could not be sustained. [424B-C]      3. If the second appeal was one preferred under Section 100 of the Code of Civil Procedure the finding of the Courts below  on  issue  No.  3 did  not  involve  any  substantial question of law. Even if the finding was wrong it was only a                                                   PG NO 418 finding of fact or at best a finding on a mixed questioin of law and facts and nothing more. The High Court had failed to notice that the respondent had not filed any cross-objection in  the  second appeal to challenge the correctness  of  the finding  on issue No. 3 by the Courts below.  Alternatively, if  the  appeal was only a revision preferred  to  the  High Court  by virtue of the proviso to Section 22(2),  the  High Court  had no jurisdiction to interfere with the  concurrent findings  of  the Courts below on issue No.  3  because  the finding did not suffer from any error in the exercise of the jurisdiction vested in the Courts below. [424C-E]     Gian Chand v.K.B. Lal, [1977] 2 SCR 324 at 332, referred to.     Raghunath  v.  Kedar  Nath, [1969] 3  SCR  497  at  504, followed.     4.  Another error which the High Court has committed  is in  drawing  a  conclusion of its own that  even  though  no details  regarding the length and width of the plot of  land or  the dimensions of the constructed portion of the  Nohara were on record, the raising of the height of the walls  from

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5 feet to 11 feet would per se amount to material alteration within  the  meaning of Section 13(c) of the Act.  The  High Court  has thus rendered a finding without there  being  any evidence on record for it. [425E]

JUDGMENT:    CIVIL. APPELLATE JURISDlCTION: Civil Appeal No.  1327(N) of 1977 .      From  the  Judgment  and Order dated  7.2.1977  of  the Rajasthan High Court in S.B. Civil Regular Second Appeal No. 360 of 1974    Tapas Ray and Sushil Kumar Jain for the Appellant.      H.K. Puri for the Respondents.      The Judgment of the Court was delivered by NATARAJAN,  J.  The  limited question  of  law  falling  for consideration in this appeal by special leave is whether the High  Court  had  travelled  beyond  its  jurisdiction  when inspite  of accepting the appellant’s contention  in  second appeal, it  had failed to allow the  appeal  and     instead dismissed  it  on  a ground which was not in  issue  in  the second  appeal.                                                   PG NO 419      We   may   first  have  a  look  at  the   facts.   The tenant/appellant  was  granted lease of a  Nohara  (an  open space  enclosed  by a wall) belonging to the  respondent  in Hanumangarh  town  in  the  year  1965.  On  19.9.1967,  the respondent  instituted a suit against the appellant  praying for  recovery  of  rent  as well  as  the  eviction  of  the appellant on various grounds, such as, default in payment of rent,   causing  material  alteration  and  damage  to   the property,  bona  fide  requirement  of  the  nohara  by  the landlord  for starting a factory etc. The  appellant  raised appropriate defences and contested the suit. On the basis of the pleadings of the partis, the Trial Court viz. the Munsif Magistrate  1st Class, Hanumangarh framed seven  issues  and two additional issues. Issue Nos. 3, 6 and additional  issue No.  1  which  alone are of relevance in  this  appeal  were framed as under:      "Issue No. 3: Whether the defendant has raised walls of the said Nohara, due to which material alterations have been made by defendants.      Issue  No. 6: Whether plaintiff is entitled to  receive Rs.771.74 against defendant?      Additional Issue No. 1: Whether defendant has not  paid rent upto Samvat 2022, so what is its effect upon main merit of the suit?"      After a detailed consideration of the evidence  adduced by  the parties, the Trial Court answered issues 2 to  5  in favour of the appellant. On issues l and 7 which related  to the  tenancy being monthly or yearly and whether  there  had been  a  valid termination of the tenancy. the  Trial  Court held  against  the appellant. However, On issue  No.  6  and additional  issue  No. 1 which pertained to the  arrears  of rent,  the Trial Court held that there were no  arrears  and hence no decree for eviction can be passed on the ground  of arrears of rent.      Since the findings on issues 3 and 6 have relevance, we will  advert  to them in detail. On issue No. 3,  the  Trial Court held that the appellant had no doubt raised the height of the walls by about 5 to 6 feet but the evidence disclosed that the construction should have been made with the consent of the respondent and furthermore the raising of the  height of  the walls had not caused any material alteration to  the

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premises within the meaning of the Act.      During  the pendency of the suit, the respondent  filed an application under Section i3(6) of the Act for having the                                                   PG NO 420 defence  of  the appellant struck off. The  application  was considered  along  with  Issue No. 6 and  dismissed  in  the following manner:     "Plaintiff  has also filed an application under  Section 13  subclause 6 of the said Act for getting defence  of  the defendant  struck off but same has been withdrawn by him  in view of the report of office dated 7.8.71 and payments  made by  defendant.  In such circumstances, we have to  say  that rents do not stand in arrears with the defendants and it has been  paid off to the plaintiff. Therefore, this  issue  has become  redundant and not necessary to be  discussed.  There are no defaults in payment of rent as plaintiff has paid  an advance  monthly  rent to plaintiff. It has been  argued  on behalf of plaintiff that rent for the month of July has  not been  made by defendant upto 15.7.71 so, defence should  get struck  out. but this fact has already been  considered  and decided.  It  is  an advance rent which  is  being  paid  by defendant  and  could  have  been  paid  by  defendant  upto l5.8.7l.  In such circumstances. it cannot be inferred  that rent  has not been paid to plaintiff in time or default  has been committed."      The  Appellate Court, after re-appraising the  evidence affirmed the findings of the Trial Court on issues 2 to 5 in the following manner:      "As regards issue Nos. 2 to 5 I have carefully examined the pleadings of the Parties and the evidence. on the record and find no hesitation in endorsing the finding of the Court below".      In  so far as the finding on issue No. 3 is  concerned, the .Appellate Court held as follows:      "As regards the issue No. 3 the defendant admitted that he  has  raised the height of walls of the  Nohara  but  has pleaded  that  this has been done with the  consent  of  the plaintiff. On this point the defendant Bhagat Ram has stated in his oral examination that the walls were raised with  the consent   of   the  plaintiff.  In  corroboration   of   the defendant’s  testimony, there is no other evidence  oral  or documentary  to  support  his version that  the  walls  were raised  with  the  consent of the plaintiff.  But  then  the learned  trial  court  has  inferred  the  consent  of   the plaintiff  by referring to the fact that the fresh  contract                                                   PG NO 421 of lease was entered into between the parties after  raising of  the  walls.  This could not have  been  done  until  the plaintiff  had  consented  expressly  or  impliedly  to  the raising  of the height of the walls. I have considered  this aspect  of the case and agrree with the learned trial  court that  the  consent of the plaintiff to the  raising  of  the height  of  the  walls  can safely  be  inferred  from  this circumstance. It is admitted by the plaintiff and is clearly proved  on record that the contract of lease leading to  the reduction  of rent to Rs.421 p.a. was entered  into  between the  parties after raising of the height of the  walls.  Had the plaintiff not consented to the raising of the walls,  he would  not have entered a fresh contract of lease. Thus  the finding of the learned Munsif on issue No. 3 does not appear to be erroneous."      The  Appellate  Court 1 spite of  concurring  with  the finding  of  the Trial Court on issues 2 to  5  allowed  the appeal on the ground the Trial Court should have struck  off the  defence  of  the appellant because  the  appellant  had

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failed to apply to the court for depositing the rent arrears within one month from the date of first hearing of the  suit viz.  4.10.1967  but  had applied only  on  11.11.1967.  The Appellate  Court  held that even though the  respondent  had failed  to file an independent appeal, which  was  permitted under the Act against the order of the Trial Court  refusing to  strike out the defence of the appellant, the  respondent was  not precluded from challenging the order of  the  Trial Court in the appeal filed by the appellant against the final decree in the suit because the order refusing to strike  out the  appellant’s  defence was only an  inter-locutory  order and,  as  such, the correctness of the said order  could  be challenged in the appeal preferred against the final  decree in the suit. In that view of the matter the Appellate  Court struck  off the appellant’s defence in the suit and  granted the respondent a decree for eviction.      Aggrieved  by the judgment and decree of the  Appellate Court, the appellant herein preferred a second appeal to the High  Court. During the pendency of the second  appeal,  the Act  came  to be amended by means of  Ordinance  No.-  26/75 which  was  later replaced by the Amendment Act  No.  14  of 1976. Availing the benefit of the amendments effected to the Act, the appellant filed an application under Section 13A(b) and  had the arrears of rent, interest thereon and costs  of the  suit determined by the Court and deposited  the  entire amount  within  one month. The High Court,  therefore,  held that  since  the appellant had complied with  the  terms  of                                                   PG NO 422 Section  13A(b)  he  was entitled to  the  benefits  of  the Section  and  as  such "the order  of  the  Appellate  Court striking  out  the  defence and decreeing the  suit  on  the ground  of default in payment of rent cannot be  sustained." Strangely  enough  the High Court instead  of  allowing  the appeal  in view of the above said finding, launched upon  an enquiry  about the correctness of the finding of the  Courts below  on  issue  No. 3 and re-appraised  the  evidence  and concluded  that the additional construction must  have  been made by the appellant without the consent of the  respondent and  secondly the construction would constitute  a  material alteration  within the meaning of Section 13(c) of the  Act. Thus, by traversing into a matter which was not in issue  in the  second  appeal, the High Court held  that  "the  appeal fails though on a different ground" and dismissed the second appeal  preferred  by  the appellant.  It  is  against  that judgment this appeal by special leave has been filed.      Mr.  Tapas  Roy,  learned  counsel  for  the  appellant contended  that the High Court had exceeded its powers as  a second  appellate court by re-opening a concluded issue  and re-appraising  the evidence and rendering a new finding  and dismissing  the  second  appeal on  the  said  finding.  The learned  counsel  stated  that  the  only  question  of  law involved  in  the second appeal was  whether  the  Appellate Court  was  right in taking the view that the order  of  the Trial  Court  refusing to strike off the defence was  not  a final  order,  even though it was an appealable  order,  but only  an interlocutory order and as such the correctness  of the  order  could  be challenged by the  respondent  in  the appeal  preferred  by  the tenant.  This  question  did  not survive  for consideration by the High Court because of  the amendments  effected to the Act during the pendency  of  the Second  Appeal.  The High Court noticed this  position  and, therefore, rightly held as follows:      "During the pendency of the appeal, the Act was amended by Ordinance No. 26/1975. Later on, the Legislature  adopted the Ordinance in the form of Amendment Act No. 14/1976.  The

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tenant   on  the  basis  of  the  Amendment  Act  moved   an application for determination of rent, interest thereon  and costs of the suit under Section l3A(b).  This Court vide its order dated 9.7.1976 determined the amount and directed  the tenant  to pay the said amount within one month. The  tenant deposited  the  amount within the prescribed  time.  Section 13A(b)of  the  Amended Act provides that on payment  of  the determined  amount  within the time fixed by the  court  the proceeding  shall  be disposed of as if the tenant  had  not                                                   PG NO 423 committed  any fault.  That being the law as amended  during the  pendency of the suit the order of the  Appellate  Court striking  out  the  defence and decreeing the  suit  on  the ground  of default of  payment of rent cannot be  sustained. So far there is no dispute between the parties."      Having  held that the striking out of the  defence  and the  decreeing  of the suit by the Appellate  Court  on  the ground of default of payment of rent cannot be sustained, so the argument of the appellant’s counsel ran, the only course left open for the High Court was to allow the second  appeal and  dismiss the respondent’s suit for eviction  because  no other  question arose or survived for consideration  in  the second appeal. Since the High Court had failed to do so  but had  launched  upon  a probe about the  correctness  of  the finding  of the courts below on issue No. 3 which  had  been rendered on appreciation of evidence and were concurrent  in nature,  the appellant’s counsel argued that the High  Court had  clearly exceeded its jurisdiction in the second  appeal and  had  erred  seriously in  setting  aside  a  concurrent finding  of fact when no cross-objection had been  filed  by the respondent.      The  appellant’s  counsel stated that  since  the  High Court was dealing with a second appeal, it was subjected  to the  constraints placed by Section 100 of the Code of  Civil Procedure. For this contention he relied upon Gian Chand  v. K.B.  Lal,  [1977]  2 SCR 324 at 332. It was  held  in  that decision  that  the right of appeal provided  under  Section 22(1)   and  the  revisional  powers  of  the   High   Court exercisable under the proviso to Sub-Section (2) of  Section 22  would have reference only to those orders  passed  under Sections 6, 7, 11, 19(A) and 19(C) of the Act, but in so far as  appeals  or  applications  for  revision  under  Section 13(A)(c) are concerned, they relate to decrees and suits for eviction  based  on the ground of non-payment  of  rent  and therefore, the appeal and applications for revision  arising under  Section 13(A)(c) would not be covered by  Section  22 and  in  all  such  cases the usual  rights  of  appeal  and revision  will be available to the aggrieved party.  Relying upon  the  above said decision it was urged that  since  the High Court was dealing only with a second appeal, it  should not have entertained the respondent’s plea that even  though the appeal may succeed in so far as the striking off of  the defence  is  concerned, the second appeal  should  still  be dismissed  on another ground. Mr. Puri, learned counsel  for the respondent disputed the above said contention and argued that  the  High Court was not really dealing with  a  second appeal  in exercise of its powers under Section 100 Code  of Civil  Procedure  but  was only  exercising  its  revisional                                                   PG NO 424 jurisdiction  which  has been preserved by  the  proviso  to Section  22(2) of the Act, and as such, the High  Court  was not  bound to confine its scrutiny to substantial  questions of law alone and coud examine the legality and propriety  of the findings of the Courts below on issue No. 3.      In  the facts and circumstances of this case it is  not

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necessary for us to go into the question whether the  appeal heard  by the High Court was one under Section 100  Code  of Civil Procedure or one in exercise of its revisional  powers left  intact by the proviso to Section 22(2).  In  whichever way  the  matter  is viewed the High Court  could  not  have launched  upon a probe into the correctness of the  findings on  issue No. 3 by the Courts below after it  had  concluded that the striking off of the defence by the Appellate  Court and  the  decreeing of the suit on that score could  not  be sustained.  If  the second appeal was  one  preferred  under Section  100  Code  of Civil Procedure the  finding  of  the Courts below on issue No. 3 did not involve any  substantial question of law. Even if the finding was wrong it was only a finding of fact or at best a finding on a mixed question  of law and facts and nothing more. The High Court had failed to notice that the respondent had not filed any cross-objection in  the  second appeal to challenge the correctness  of  the finding on issue No. 3 by the Courts below. Alternatively if the  appeal was only a revision preferred to the High  Court by  virtue of the proviso to Section 22(2), the  High  Court had  no  jurisdiction  to  interfere  with  the   concurrent findings  of  the Courts below on issue No.  3  because  the finding did not suffer from any error in the exercise of the jurisdiction vested in the Courts below.      Mr. Puri, however, argued that even without  preferring a  crossobjection the respondent was entitled to assail  the finding  on  issue  No.  3 to  support  the  decree  of  the Appellate Court. We see no merit in this contention  because the  respondent  sought  the eviction of  the  appellant  on several distinct causes of action and the acceptance  of any one  of those causes of action would have entitled him to  a decree  for  eviction.  When  all  those  grounds  had  been rejected  by  the Courts below and the Appellate  Court  had decreed the suit only by striking off of the defence of  the appellant,  the  respondent cannot seek sustainment  of  the Appellate  Court’s decree on a disallowed ground  which  had nothing  to do with the non-deposit of rent or the  striking out  of  the defence on that score. In this context  we  may only  refer to Raghunath v. Kedar Nath, [l969] 3 SCR 497  at 504.  In that case the plaintiff’s suit for  redemption  was decreed  by  the  Trial  Court  subject  to  a  payment   of Rs.1709.14  by him. The first Appellate Court  reversed  the judgment  and on further appeal the High Court remanded  the                                                   PG NO 425 matter and against the judgment of the lower Appellate Court passed  after remand the plaintiff as well as the  defendant filed second appeals to the High Court. The High Court while dismissing   the   defendant’s  appeal  and   allowing   the plaintiff’s appeal remanded the case to the lower  Appellate Court  with  a  direction that the defendants  be  asked  to render  accounts  before  they claim any  payment  from  the plaintiff at the time of redemption of the mortgage. Against the  judgment of the High Court there were appeals  to  this Court.  While  dismissing  the appeals  this  Court  granted limited relief to the defendants/appellants in so far as the direction of the High Court for the defendant’s liability to render  accounts  was  concerned. In  doing  so  this  Court pointed  out  that  since the plaintiff had  not  filed  any appeal  against the decree of the Trial Court directing  him to  pay  Rs.  1709/14/-  for  redeeming  the  mortgage,  the plaintiff  was bound to pay the said sum and he cannot  seek adjustment of the same from out of any mesne profits payable by  the defendants. The same ratio would apply in this  case also  because  the respondent had accepted  the  finding  on issue  No.  3 by the Courts below and had  not  preferred  a

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Memorandum of cross-objection to the High Court.      Another error which the High Court has committed is  in drawing  a conclusion of its own accord that even though  no details  regarding the length and width of the plot of  land or  the dimensions of the constructed portion of the  Nohara were on record, the raising of the height of the walls  from 5 feet to 11 feet would per se amount to material alteration within  the  meaning of Section 13(c) of the Act.  The  High Court  has thus rendered a finding without there  being  any evidence on record for it.      Thus, from which every angle the matter is viewed,  the judgment  of the High Court cannot be sustained  because  it had  transgressed  its jurisdiction which has  lead  to  the second appeal being dismissed, instead of being allowed,  on a  ground  which  was not available to  the  respondent  for supporting  the judgment and decree of the Appellate  Court. We,  therefore, allow the appeal and set aside the  judgment of the High Court and restore the judgment and decree of the Trial  Court dismissing the respondent’s suit for  eviction. There will, however, be no order as to costs. A.P.J.                                    Appeal allowed.