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PETITIONER: HARI SINGH

       Vs.

RESPONDENT: KANHAIYA LAL

DATE OF JUDGMENT:       07/09/1999

BENCH: A.P.Misra, N.Santosh Hegde

JUDGMENT:

J U D G E M E N T

     MISRA, J.

     The  issue  raised  in this appeal  arises  under  the Rajasthan  Premises (Control of Rent and Eviction) Act, 1950 (hereinafter  referred  to as the Act).  The appellant  is the landlord and respondent the tenant.  The question raised by  the  appellant is, whether the High Court was  right  in setting  aside  the  concurrent finding of facts  in  second appeal?    In  other  words,   whether  there  existed   any substantial  question  of  law and the  High  Court  without framing  any  substantial question of law was  justified  in interfering  with the concurrent finding of both the  courts below?  The appellant also challenges that part of the order of  the  High Court confirming the first  appellates  court order  which  holds  no default in payment of  rent  by  the respondent.   In short, the suit of the landlord was for the eviction  of the respondent on grounds of default in payment of  rent,  sub-letting  of  the  premises  in  question  and creating  nuisance  which was decreed.  The appellate  court confirmed  the  finding of sub-letting and nuisance but  set aside  the  finding of default.  In second appeal  the  High Court  confirmed first appellate court finding that there is no  default  but set aside the concurrent findings that  the respondent sub-letted the premises and created a nuisance.

     In  order  to  appreciate the  controversy  raised  we deliver the following short facts.

     The  respondent  took two shops and one  godown  along with Chabutra being a portion of House No.2131, Subji Mandi, Johri  Bazar,  Jaipur, at a monthly rent of Rs.45 per  month with  Rs  5  per month for water charges.  The case  of  the appellant-landlord  is that respondent sub-letted one of the shops  to one Mohd.  Ishaq and sub- letted the godown to one Hamid.   This apart, he failed to pay the rent for a  period of about 2 years and 11 months totalling Rs 1750/-.  He also blocked  the 11 feet wide entrance which is the only passage for  the appellant for going to his residence by placing the bags  of onion and other vegetables on both the side of  the passage.   In  fact it blocks about 8 feet  passage  leaving hardly  3  feet  which is causing serious  nuisance  to  the appellant.   On  15th February, 1977 a notice was served  on the  respondent  followed by filing a suit on 12th  January, 1978  for  eviction from the said premises on the ground  of

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default  in  payment  of  rent,  sub-letting  and  nuisance. Within  one  week on 19th January, 1978 the  appellant  also filed  another  suit  for fixation of  standard  rent  under Section  6 of the aforesaid Act.  On 3rd May, 1978 the trial court  in the later suit fixed provisional standard rent  at Rs.   100  per month under Section 7 of the said Act  w.e.f. 12th  January, 1978.  The respondent as a consequence of the same  deposited  rent at the said rate for the  period  12th January,  1978  to  16th   September,  1978.   However,  the respondent  defaulted in paying the rent at this rate for  a period  subsequent  to 17th September, 1978.  This fact  was incorporated  in  the  plaint through an  amendment  to  his plaint  which  was allowed and the same was incorporated  as para  5  (A)  of  the said plaint.   This  amendment  pleads default  of  payment of rent for a period subsequent to  the said   provisional  fixation  of   rent  and   consequential liability for eviction under Section 7 (4) of the Act.

     According  to the respondent, the trial court on  13th April,  1978 determined the provisional rent at Rs.  45  per month   under   Section  13(3)  of   the  said   Act   hence determination  of provisional standard rent under Section  7 on  3rd May, 1978 would only means fresh redetermination  or modification  of the amount payable under Section 13 (3) has to  be  made  before  consequence  of  eviction  is  to   be implemented.   On  the other hand counsel for the  appellant stressed  that the trial court struck out the defence of the respondent  under section 13(5) on account of his failure to deposit  provisional  rent  as fixed under Section  7.   The appeal  against  this  was also dismissed by  the  appellate authority  on 5th August, 1983.  Even revision petition  was also  dismissed  by the High Court on 18th  February,  1987. Thus this order became final as it was not challenged before this  Court.  Repelling this submission of finality, learned counsel for the respondent submits that the revisional order itself  left the matter open to be raised later, hence there was  no need to challenge the revisional order.  Reliance is placed  on the following observations in the said revisional order:

     I  am  of the opinion that the various questions  and issues  raised  before this court in revision under  Section 115  C.P.C.  deserves to be decided in an appeal finally  if it  becomes necessary to file the same by the tenant.  . Any  adverse  order is passed against him earlier  which  is appealable  then  these complication questions of facts  and law,  calculations  promotions and combination of Hindi  and English calendar months, can be decided there in appeal.

     The  trial court finally decreed the suit for eviction by  holding  that  the respondent had committed  default  in payment  of  rent w.e.f.  Vaisakh Bud Akum Sambat 2032  till date  of filing of suit, he had also sub-letted the premises and   created  nuisance  in  the   entry  passage  for   the plaintiff-landlord.   The appellate authority dismissed  the appeal  of  the respondent by upholding his eviction on  the ground  of nuisance and sub-letting under Sections  13(1)(d) and  13(1)(e) respectively, but set aside finding of default under  Section  13  (1)(a).  The appellant  challenges  this setting aside part, which according to him is unsustainable, as  earlier  the  defence of the respondent was  struck  off under  Section  13  (5) of the Act on this  very  ground  of default.    The   submission  is,    the   appellate   court misconstrued the provisions of Section 7(4) of the said Act.

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Finally,  the  High  Court in second appeal  set  aside  the concurrent  findings  recorded by both the courts below  and directed  the  appellant to restore possession of  the  suit premises  to the respondent.  The grounds on which the  High Court  interfered  is  that specific details  had  not  been incorporated  in the pleading and the finding is against and contrary  to  the  evidence on record.  The finding  of  the appellate  court,  of  no default by the respondent  is  not disturbed.

     Learned  counsel for the appellant has challenged this impugned  order  firstly  on  the ground  that  neither  any substantial question of law has been framed nor it arises in the  present case, hence, interference in the second  appeal under  Section 100 CPC was without jurisdiction and secondly the  High Court should have set aside that part of the order of  the appellate court which holds no default as admittedly the  respondent  committed  default in not  paying  rent  as provisionally  fixed  under Section 7.  This  default  under Section  7  (4) is by itself sufficient for the eviction  of the respondent.

     On  the other hand, learned counsel for the respondent submits  with vehemence that admittedly the present suit for eviction  is based on arrears of rent at the rate of Rs.  45 per  month  as  per prayer in the plaint, and  in  spite  of amendment  by  introducing  para  5 (A),  as  aforesaid,  no corresponding  amendment  is  made  to  the  prayer.   Hence eviction  for  default could only be if there be default  in not making payment at the rate of Rs.45 per month and not on account of fixation of provisional standard rent at the rate of  Rs.100 per month.  He also submits once order dated 13th April,  1978 was passed under Section 13(3) which fixes  the amount  payable  by  the tenant for the  default,  no  other amount  including  the  amount as enhanced  by  fixation  of provisional  rent under Section 7 could be constituted to be an amount, for which respondent could be evicted unless this order  dated  13th April, 1978 is modified.  So far  setting aside  the  concurrent findings on sub-letting  and  causing nuisance  it is submitted that the High Court has given good reasons for the same.

     The  question  of  interference by the High  Court  in second  appeal,  its principle stands settled by  catena  of decisions  of  this  Court.  The jurisdiction of  courts  in first  appeals, second appeals or revisions are all, to  the extent  conferred by the legislature.  No litigant possesses any  natural or inherent right to appeal against any  order, unless  a  statute  confers and it is to the  extent  it  is conferred.   Thus  area to challenge is also hedged  by  the legislature  hence challenge to the impugned order has to be confined  within  such limitation.  How  legislature  limits such  right could be visualised from Section 96 and  Section 100  CPC as it stood prior to the amendment by the Amendment Act  1976  (104  of  1976)  and  as  it  stands  after  this amendment.

     Section   96   deals  with    appeal   from   original jurisdiction.   Its language confers very wide right both on the appellant to challenge and jurisdiction of the appellate court  to  adjudicate,  when it uses the words,  An  appeal shall  lie from every decree passed by any court  exercising original  jurisdiction.   Even this wide expanse is  shrunk through  sub-sections  3 and 4.  In other words,  no  appeal shall  lie by virtue of sub-section 3, where it is a consent

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decree  and sub-section 4 forbids appeal from an order in  a suit  cognizable  by  courts of small causes, in  which  the value  of  the  subject  matter does not  exceed  an  amount referred  to therein and in other cases only on question  of law.

     Prior  to  the amendment of Section 100 CPC  a  second appeal  could  have been filed before the High Court on  the grounds  as set out in clauses (a) to (c) of Section 100(1), namely :

     (a)  the  decision being contrary to law or  to  some usage having the force of law;

     (b)  the  decision  having failed  to  determine  some material issue of law or usage having the force of law;  (c) a  substantial error or defect in the procedure provided  by this  code or by any other law for the time being in  force, which  may  passibly  have produced error or defect  in  the decision of the case upon the merits.

     So  the  purpose  for  amending  Section  100  by  the aforesaid Amending Act was to further limit the jurisdiction of  the High Court.  Prior to the amendment the interference could  have  been where an order is contrary to law or  some usage  having the force of law.  But now it could only be if any   substantial  question  of   law  arises.   The   words substantial  question of law, brought in has  significance not superfluous.  So now interference cannot be only because order  is  contrary  to law, but when  the  disputed  issues raises  substantial question of law.  Creation of powers  or limiting  such powers in the appellate authorities is always a  decision  based on public policy expressed in the  maxims interest  reipublicae  ut  sit finis  litium.   This  policy brings to finality some issues or a litigation at some point of  time.   If  no appeal is provided,  the  original  order become  final.  Thus it is open for the legislature to bring finality  to the adjudication on question of facts upto  the stage  of  first  appeal  and limit  the  second  appeal  to question  of  laws or to the substantial question of law  to such  other  limitation which the legislature deems fit  and proper.   Section 100 CPC after the amendment is  reproduced below:   100.   Second  Appeal.-   (1)  Save  as  otherwise expressly provided in the body of this Code by any other law for the time being in force, an appeal lie to the High Court from  every decree passed in appeal by any Court subordinate to  the High Court, if the High Court is satisfied that  the case  involves a substantial question of law.  (2) An appeal may  lie under this Section from an appellate decree  passed ex  parte.   (3)  In  an   appeal  under  this  section  the memorandum  of appeal shall precisely state the  substantial question of law involving in the appeal.  (4) Where the High Court  is  satisfied that a substantial question of  law  is involved in any case, it shall formulate that question.  (5) The  appeal shall be heard on the question so formulated and the  respondent  shall  at  the hearing of  the  appeal,  be allowed  to  argue  that  the case  does  not  involve  such question:

     Provided  that  nothing in this sub-section  shall  be deemed  to  take away or abridge the power of the  Court  to hear,  for  reasons to be recorded, the appeal on any  other substantial  question of law, not formulated by it, if it is satisfied that the case involves such question.

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     Sub-section  (3) places an obligation on the appellant to precisely state the substantial question of law involving in  the appeal.  Sub-section 4 confers on the High Court  an obligation  to formulate the substantial question of law, if it  is  satisfied that it is involved.  Then  sub-section  5 confers  right on the respondent to urge that no substantial question  of  law  arises.    The  proviso  supplements  the discretion  to  the  court  to   formulate  if  some   other substantial  question of law arises if not formulated.   The aforesaid scheme of this Section clearly reveals the intents of  legislature  to limit the exercise of power of the  High Court  under  Section  100.  Thus existence  of  substantial question of law is sine qua non for the exercise of power by the High Court under this Section.

     This  Court  records in Panchugopal Barua  Vs.   Umesh Chandra Goswami (1997 (4) SCC 713 at para 7) :

     Para  7  - A bare look at Section 100 CPC shows  that the  jurisdiction  of the High Court to entertain  a  second appeal  after  the 1976 amendment is confined only  to  such appeals   as   involve  a   substantial  question  of   law, specifically  set  out  in  the  memorandum  of  appeal  and formulated by the High Court.  Of course, the proviso to the section  shows that nothing shall be deemed to take away  or abridge  the  power of the court to hear, for reasons to  be recorded,  the  appeal on any other substantial question  of law,  not  formulated by it, if the court is satisfied  that the  case involves such a question.  The proviso presupposes that  the court shall indicate in its order the  substantial question  of  law which it proposes to decide even  if  such substantial  question  of law was not earlier formulated  by it.   The  existence of a substantial question of  law  is thus,  the sine qua non for the exercise of the jurisdiction under the amended provisions of Section 100 CPC.

     In Kshitish Chandra Purkait Vs.  Santosh Kumar Purkait and  others,  1997  (5)  SCC 438, this  Court  followed  and approved  the aforesaid decision in the case of  Panchugopal (supra) and further held:

     Para  10 - We would only add that (a) it is the  duty cast  upon  the  High  Court to  formulate  the  substantial question  of  law involved in the case even at  the  initial stage;   and  (b)  that in (exceptional) cases, at  a  later point  of  time, when the Court exercises  its  jurisdiction under  the proviso to sub-section (5) of Section 100 CPC  in formulating  the  substantial question of law, the  opposite party  should be put on notice thereon and should be given a fair or proper opportunity to meet the point.  Proceeding to hear the appeal without formulating the substantial question of  law  involved  in  the  appeal  is  illegal  and  is  an abnegation or abdication of the duty cast on the court;  and even  after  the formulation of the substantial question  of law,  if a fair or proper opportunity is not afforded to the opposite  side, it will amount to denial of natural justice. The  above  parameters  within which the High Court  has  to exercise  its  jurisdiction  under Section  100  CPC  should always  be  borne in mind.  We are sorry to state  that  the above  aspects  are seldom borne in mind in many  cases  and second  appeals are entertained and/or disposed of,  without conforming to the above discipline.

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     This  Court  in this case expressed its  concern  that these  aspects  are seldom borne in mind while deciding  and entertaining the second appeal as they are being disposed of without  conforming  to  this   discipline.   The  concerned expressed  by this Court in the aforesaid decision, which we also  unhesitatingly reiterate.  Though amendment was in the year  1976 but still large number of second appeal are being disposed of without conforming to this requirement.

     In  Ram  Prasad  Rajak  Vs.  Nand  Kumar  &  Bros  and another, 1998 (6) SCC 748, this Court held :

     Para  7  -  ..   Unless there  was  a  substantial question  of  law,  the High Court had  no  jurisdiction  to entertain the second appeal and consider the merits.  It has been  held  by  this Court in Panchugopal  Barua  V.   Umesh Chandra  Goswami  and Kshitish Chandra Purkait V.   Santhosh Kumar  Purkait  that existence of a substantial question  of law  is sine qua non for the exercise of jurisdiction  under Section  100  CPC.  In both the aforesaid cases, one  of  us (Dr.   Anand, J) was a party to the Bench and in the former, he spoke for the Bench.

     In  Kondiba Dagadu Kadam Vs.  Savitribai Sopan  Giujar and others, 1999 (3) SCC 722, this court held :

     After the amendment a second appeal can be filed only if  a  substantial question of law is involved in the  case. The   memorandum   of  appeal   must  precisely  state   the substantial  question of law involved and the High Court  is obliged  to satisfy itself regarding the existence of such a question.  If satisfied, the High Court has to formulate the substantial  question  of  law involved in  the  case.   The appeal   is  required  to  be   heard  on  the  question  so formulated.   However,  the  respondent at the time  of  the hearing  of the appeal has a right to argue that the case in the  court did not involve any substantial question of  law. The  proviso  to the section acknowledges the powers of  the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no  injustice is done to the litigant where such a  question was  not  formulated  at  the time of  admission  either  by mistake or by inadvertence.

     Thus  within  the said periphery the question  arises, whether  the  High  Court in the present  case  has  rightly exercised  its  jurisdiction in setting aside  the  findings recorded  by both the courts below?  So far the question  of sub-letting  the finding was based on the deposition of  the witnesses  to whom the disputed premises was sub-let.  Their testimony was rejected by the High Court mainly on the basis that there is no detail pleading pertaining to the period of sub-tenancy  and  even  the witnesses has not  produced  any receipt of payment of rent.  It is not in dispute that there is  pleading  that the disputed premises was  sub-let.   The detail,  if any, can be supplemented through evidence.  Mere lack  of  details  in the pleading cannot be reason  to  set aside  concurrent  finding  of facts.  Similarly,  the  High Court  interfered with the concurrent finding of facts  that nuisance  was  created by the respondent by obstructing  the passage leading to the appellant house by keeping onion bags leaving out of space of 11 feet to 3 feet only.  The fact of this  obstruction  is  also supported  by  the  Commissioner

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report  submitted  in the present proceedings.  The  finding recorded  on  sub-letting  and nuisance by both  the  courts below being based on evidence on record its setting aside by reappraisal of evidence, and in any case without framing any substantial  question  of  law by the High Court  cannot  be sustained  and  further we also do not find any  substantial question  of  law arising therein.  Learned counsel for  the respondent  tried to submit with force by attempting to take us   to  the  evidence  of   the  witnesses  to  show  their unworthiness  for  reliance.   It is neither a  case  of  no evidence  nor  perverse finding.  All these submissions  are within  the  realm of appreciation of evidence which  should not  have been interfered by the High Court for less for  us to examine.

     Returning  to the question of default committed by the respondent, the submission is, as per prayer in the suit the arrear  claimed  is only at the rate of Rs.  45  per  month, hence  without  its  amendment,  subsequent  enhancement  to Rs.100 per month under Section 7 cannot be construed to be a default  for  eviction.   Further  unless  the  order  under Section  13(3) is modified as aforesaid the non- deposit  of this payment, if at all, at this rate cannot be construed to be  default.   Thus this enhance amount, if any,  cannot  be construed  as  default for eviction.  He further submits  as per  Hindi calendar months, which is referred in the plaint, even  after  the  enhancement under Section 7,  if  computed under  it  there is no default.  It has also been  urged  by learned  counsel  for  the respondent that the  order  under Section  7  has  not  been brought on  the  record  in  this proceeding,  hence, could not be relied.  On the other  hand learned  counsel for the appellant submits Section 7  stands by  itself and any default after fixation of the provisional rent  under it and failure to pay this rent for any month by 15th  day of the next following month of such  determination renders  a tenant liable for eviction.  There is no need  to modify  any  order under Section 13 (3) for this  and  after amendment  of plaint even without amending prayer, by virtue of  Section  7  (4) the respondent is liable  for  eviction. Further,  there  is no plea by the respondent that  rent  is payable  as  per Hindi Calendar month.  Description  in  the plaint of the arrears by referring names of Hindi month does not make tenancy by Hindi calendar.

     Though  the submission on this question of default was stretched,  both  by learned counsels for the appellant  and the  respondent at great length but we do not propose to  go into  this  question,  when we have  upheld  the  concurrent findings  of  both  the  courts  below  of  sub-letting  and creating  nuisance,  which  by itself is  sufficient  for  a decree  for  eviction.   The  submission,  since  it  raises question  of  interpretation  of   various  sub-sections  of Section  13 and Section 7, it is not necessary to go into it for the said reason in the present proceedings.  This apart, as  we have held that the High Court committed error in  the exercise of its jurisdiction in setting aside the concurrent findings  of  fact  on   sub-letting  and  nuisance  without formulating and there being any substantial question of law, the  same  also  equally applies so far  this  third  point, namely, the default of the tenant.  Once the appellate court recorded  the  finding that there is no default that  became final  and  if  the High Court did not interfere  with  this finding,  we do not find, it committed any such error  which require  our  interference.  We do not find any  substantial question arising out of the decision on this point.

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     For the aforesaid reasons and the findings recorded by us, we find it to be a fit case to allow this appeal and set aside  the  judgment and order of the High Court dated  15th December, 1995 and uphold the decree passed in favour of the appellant  by  the  two  courts below.   On  the  facts  and circumstances of the case, costs on the parties.