IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4954 OF 2001

Gurvachan Kaur and Ors.     ...Appellant(s)

Versus

Salikram (Dead) through Lrs.     ...Respondent(s)

O  R  D  E  R

This is an appeal by the legal representatives of plaintiff - Jogendra Singh

Ghai for setting aside the judgment of the High Court in second appeal preferred by

defendant – Salikram, who is now represented by his legal representatives, whereby

the decree of eviction passed by the lower appellate court was reversed and the suit of

the plaintiff was dismissed.   

Jogendra Singh Ghai filed suit against Salikram for eviction from the suit

property on the ground of default in payment of rent since 30th November, 1971 and

also on the ground that the suit property is required for the purpose of construction

which cannot be carried out without getting the house vacated.  In his  plaint,  the

plaintiff averred that the defendant had been inducted as tenant on a monthly rent of

Rs.30/- and the latter had executed rent note dated 30.05.1967 (Exhibit-P2).  In the

written statement filed by him, Salikram claimed that plaintiff was not owner of the

house.  He also denied execution of rent note dated 30.05.1967 and pleaded that there

did not exist landlord-tenant relationship between him and the plaintiff.

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The trial Court framed the issues, gave opportunities to the parties to lead

evidence and dismissed the suit by recording a finding that the plaintiff has failed to

establish landlord-tenant relationship.

The plaintiff challenged the judgment and decree of the trial court in civil

appeal  no.  17A/83.   During  the  pendency  of  the  appeal,  the  plaintiff  filed  an

application under Order 41 Rule 27 for examination of handwriting expert to prove

the signature of the defendant on the rent note.  By an order dated 16.04.1983, the

lower appellate court  allowed the application and remitted the  record to the trial

court  with  a  direction  that  both  the  parties  be  given  opportunity  to  examine

handwriting experts.  Civil Revision preferred by Salikram against that order was

dismissed by the High Court.  Thereafter, plaintiff examined handwriting expert –

M.R. Deshpande (PW-3).  Defendant, Salikram was also given opportunity to examine

handwriting expert, but he did not avail the same.  After receipt of the record from

the trial court, the lower appellate court accepted the defendant’s request for grant of

further opportunity to examine handwriting expert and again remitted the record to

the trial court.  However, despite several opportunities given to him in a span of more

than five years, the defendant failed to examine the  handwriting expert.  When the

appeal was fixed for final arguments, an application was filed by the defendant for

examining handwriting expert,  but the same was dismissed by the lower appellate

court  vide  order  dated  15.12.1989  by  observing  that  the  applicant  wanted  to

unnecessarily prolong disposal of the appeal.  Thereafter, the  lower  appellate  court

considered  the  evidence which

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included statements of PW-1 – Nirmal Singh Ghai (son and attorney of the plaintiff-

appellant), PW-2 – Ganesh Ram Agrawal  (an attesting witness  of Exhibit-P2) and

PW-3 handwriting expert – M.R. Deshpande, and held that the plaintiff has been able

to prove the landlord-tenant relationship between him and the defendant as also the

fact that the latter defaulted in payment of rent and accordingly, decreed the suit.   

Aggrieved  by  the  judgment  and  decree  of  the  lower  appellate  court,

Salikram preferred second appeal.   During the pendency of the appeal,  plaintiff  -

Jogendra Singh Ghai died and his legal representatives were brought on record.  The

High Court re-appreciated the evidence and held that as the plaintiff has not been

able to prove his ownership of the house on the basis of Exhibit-P8, he cannot be

treated  as  landlord  qua defendant-Salikram.   The  High  Court  observed  that  the

plaintiff has failed to show as to how he dealt with the property between 13.08.1958,

i.e., the date of alleged purchase and 30.05.1967, i.e., the date on which Salikram is

said to have executed rent note and held that the defendant cannot be treated as a

tenant of the suit premises.  On the basis of these findings, the High Court reversed

the decree of eviction passed by the lower appellate court and dismissed the suit filed

by the plaintiff.

We have heard learned counsel for the parties and perused the record.  A

reading of the impugned judgment shows that the High Court has not recorded a

conclusion that the finding of fact recorded by the first appellate court on the issue of

landlord-tenant relationship between the parties is perverse.  The High Court also did

not record any reason for not accepting the evidence of PW-1, PW-2 and PW-3, which

was relied  upon  by  the first appellate court for coming to the

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conclusion  that  rent  note (Exhibit-P2)  had  been executed by  the  defendant.   It  is

settled law that in exercise of power under Section 100 of the Code of Civil Procedure,

the  High  Court  cannot  interfere  with  the  finding  of  fact  recorded  by  the  first

appellate court which is the final court of fact, unless the same is found to be perverse.

This  being  the position,  it  must  be held that  the High Court  was  not justified  in

reversing the finding of fact recorded by the first  appellate court on the issues of

existence  of  landlord-tenant  relationship  between  the  plaintiff  and  defendant  and

default committed by the latter in payment of rent.   

Accordingly,  the appeal is allowed, the impugned judgment rendered by

the High Court is set aside and the one passed by the lower appellate court is restored.

No costs.

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

New Delhi, March 18, 2009.