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PETITIONER: SHEEL CHAND

       Vs.

RESPONDENT: PRAKASH CHAND

DATE OF JUDGMENT:       01/09/1998

BENCH: A.S.ANAND, B.N.KIRPAL

ACT:

HEADNOTE:

JUDGMENT: O R D E R This appeal by special leave is directed against the judgment of the High Court dated 13th September, 1996. Appellant is   the   tenant.     Respondent  is  the landlord.   The  premises  had   been   let   out   by   the predecessor-in-interest  of  the present respondent-landlord in 1968.  The suit for eviction was filed against the tenant by the respondent-landlord on various grounds including  the ground  that he required the suit premises for his bona fide personal need for starting his business.  It was the case of the respondent - landlord that though he was an advocate, he wanted the suit shop for starting his business of a ’General Store’ as he did not intend to practice law.  The  suit  was resisted.    The   trial  court  after  framing  issues  and recording evidence came to the conclusion that the  need  of the landlord  was  not  genuine  or  bonafide.  The suit was dismissed.  Landlord’s appeal before the appellate authority failed and the finding recorded by the trial  court  of  the effect  that  the  need of the landlord was not bona fide or genuine was confirmed.    The  landlord  thereupon  filed  a second appeal  in the High Court.  By the impugned order the concurrent findings of fact were set aside  by  the  learned Single of the High Court in second appeal. We have heard learned counsel for the parties. The  learned Single Judge while admitting the second appeal under Section 100 CPC framed the  following  question of law:-         ’Whether   the   finding   relating   to   bonafide         requirement of the appellant of the Courts below is         vitiated due to irrelevant consideration and  under         law?’ In  Panchugopal  Barua  vs.  Umesh Chandra Goswami : (1997) 4 SCC 713 to which one of us (Anand, J.) was a  party explaining the scope of Section 100 CPC, it was observed :-         "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

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       High Court.    Of  course,  the proviso 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." The  above  judgment  was  approved by a three Judge Bench  of  this  Court  in  Kahitish  Chandra  Purakait  vs. Santosh  Kumar Purkaji and others : (1997) 5 SCC 438 wherein it was held :-            "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 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." The question of law formulated by the learned Single Judge, noticed  above,  strictly  speaking  is  not  even  a question  of  law,  let alone a substantial question of law. The existence  of  a  substantial  question  of  law.    The existence  of  a  ’substantial question of law’, is the sine qua non for the exercise of jurisdiction by the  High  Court under the amended provisions of Section 100 CPC.  It appears that the learned Single Judge over looked the change brought about to Section 100 CPC by the Amendment made in 1976.  The High  Court  unjustifiably interfered with pure questions of fact while exercising jurisdiction under  Section  100  CPC. It  was  not  proper  for  the  learned Single Judge to have reversed the concurrent findings of  fact  while  exercising jurisdiction under  Section  100  CPC.   That apart, we find that the learned Single Judge did not even notice, let alone answer the question of law which had been formulated  by  it at the  time of admission of the second appeal.  There is no reference to the question of law in the impugned  order  and it  appears  that the High Court thought that it was dealing with a first appeal and not a second  appeal  under  Section 100 CPC.    The  findings of fact recorded by the two courts

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below were based on proper appreciation of evidence and  the material on the record.  There was no perversity, illegality or irregularity in those findings.  None has been brought to our notice by the learned counsel for the respondent either. The  findings,  therefore,  did not require to be upset in a second appeal under Section 100 CPC.  The  judgment  of  the learned  Single  Judge,  under  the circumstances, cannot be sustained.   This  appeal  consequently  succeeds   and   is allowed.   The  judgment  and  order of the High Court dated 13th Sept.  1996 is set aside.  As a  result,  the  eviction suit filed by the landlord shall stand dismissed.  No costs. ...................J ( A. S. ANAND ) New Delhi   ( B. N. KIRPAL )