Madhya Pradesh High Court
Ravindra Kumar Sharma (Dead) S/O Shri … vs Trust Mandir Shri Ramjanki Gangadas Ki … on 21 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:1477 (1)
S.A. No. 2661 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 21st OF JANUARY, 2025
SECOND APPEAL No. 2661 of 2024
RAVINDRA KUMAR SHARMA (DEAD) S/O SHRI SARDAR SINGH
SHARMA THROUGH LEGAL HEIRS/ REPRESENTATIVE USHA
SHARMA
Versus
TRUST MANDIR SHRI RAMJANKI GANGADAS KI BADI SHALA
THROUGH CHIEF TRUSTEE MAHANT RAMSEVAK DAS GURU LATE
SHRI RAMESHWAR DAS AND ANOTHER
Appearance:
Shri Prashant Sharma, Advocate for appellant.
ORDER
This Second Appeal, under Section 100 of CPC, has been filed against
the judgment and decree dated 29.08.2024 passed by VI District Judge,
Gwalior (M.P.) in RCA No.27/2023 as well as judgment and decree dated
29.12.2022 passed by XIV Civil Judge, Senior Division, Gwalior (M.P.) in
RCSA No.4800017/2016, by which decree for eviction has been passed.
2. The suit for possession/eviction was filed on the ground that
defendant/appellant was inducted as tenant. The plaintiff does not want to
continue with the tenancy of appellant. Accordingly, notice was issued and the
appellant had assured that he would vacate the premises within 5 months,but
the same has not been done. Later on by amendment, it was also claimed that
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appellant has now denied the title of plaintiff.
The defendant/appellant filed his written statement and admitted the
tenancy but lateron by amending the written statement denied the title of
plaintiff.
The trial Court decreed the suit and appeal has also been dismissed.
3. It is submitted by counsel for appellant that Mahant Ramsevak Das was
not the trustee of plaintiff/Trust and, therefore, the suit was wrongly filed by
the Trust through Ramsevak Das and accordingly following substantial
questions of law were proposed:
i. Whether the judgment and decree of the court below is
vitiated on the ground that the defense of plaintiff has been wrongly
closed when the plaintiff was not able to give defense on ground of
medical ailment?
ii. Whether the non-granting of opportunity after taking the
evidence of plaintiff is error committed by trial court which vitiates
it decree?
iii. Whether passing of decree on M.P. Accommodation Control
Act simultaneously holding that plaintiff is exempted from M.P.
Accommodation Control Act is perverse finding?
iv. Whether a decree under Transfer of Property Act could be
passed without there being a proof in relation to ownership of
property?
v. Whether the suit itself is not maintainable when the authority
to file the suit by Ramsevak Das is not proved?
vi. Whether Ld. Appellate Court without appreciating the
application filed under Order 41 Rule 27 of CPC and the judgment
and decree passed along with the same about the same property is
not tenable?
vii. Whether after allowing the application under Order 18 Rule
17 of CPC the court below ought to have granted opportunity of
rebuttal to defendant?
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viii Whether after holding the trust to be exempted under 3(2)
MPCA the decree could be passed under 12 1(e)(f)?
ix. Whether in absence of poof of resolution authorizing
Ramsevak Das to file the suit can be decreed?
x. Whether the court below erred in ignoring its own decree
when in relation to accommodation of same trust it has held that the
suit is not maintainable?
xi Whether the suit can be decreed when the authority to file the
suit on behalf of trust itself is not there?
xii Whether the Court below has erred in not allowing the
application of Order 16 Rule 6 of CPC when it was in relation to
authority to file the suit?
4. Heard learned counsel for appellant.
5. Appellant in his written statement has admitted that property in dispute
was let out to him by the Trust. “In paragraph 3 of the written statement, it was
accepted by defendant/appellant that premise in dispute was taken on rent from
the Trust through Mahant late Shri Rame;shwardas Ji and tenancy was monthly
starting from 01st day of the month coming to an end on the last day of the said
month. Appellant/defendant was regularly making payment of rent to the
plaintiff”. Once appellant has admitted that the premise in question was let out
to him by the Trust and a notice under Section 106 of the Transfer of Property
Act was served on the appellant and since the correctness of notice issued
under Section 106 of Transfer of Property Act has not been challenged, under
these circumstances, this Court is of considered opinion that the tenancy of
appellant was rightly terminated. However, counsel for appellant submitted that
the Trust had also filed civil suit against other persons but later on
compromised the matter and such treatment has not been given to appellant.
However, it was fairly conceded that the suit against other tenants was also
filed by the Trust through Mahant Ramsevak Dasji. Once the tenancy of
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appellant was terminated by issuing valid notice under Section 106 of Transfer
of Property Act, then merely because the Trust had compromised the matter
with other tenants, cannot be said to be an incriminating material to dismiss the
suit. Since the present case is not under the provisions of M.P. Accommodation
Control Act, therefore, availability of suitable accommodation to cater to the
needs of landlord is not in issue. The only issue is as to whether notice under
Section 106 of Transfer of Property Act was validly given or not? Since
appellant has admitted his tenancy and has claimed that he was regularly
making payment of rent to the Trust and the tenancy stood terminated by
issuing notice under Section 106 of Transfer of Property Act, therefore, in
considered opinion of this Court, no substantial question of law arises.
Furthermore, the appellant also denied the title which is not permissible as the
appellant himself has admitted that he had taken premises on rent from the
plaintiff.
6. Furthermore, present appeal has been filed against concurrent findings of
fact recorded by the Courts below. No perversity could be pointed out by
counsel for appellant. It is well established principle of law that even if findings
recorded by the Courts below are erroneous still the same cannot be interfered
with in exercise of power under Section 100 of CPC. The Supreme Court in the
case of Dinesh Kumar v. Yusuf Ali reported in (2010) 12 SCC 740 has held as
under:-
13. A second appeal does not lie on the ground of erroneous
findings of facts based on appreciation of the relevant evidence.
The High Court should not entertain a second appeal unless it
raises a substantial question of law. It is the obligation on the court
of law to further the clear intendment of the legislature and not to
frustrate it by ignoring the same.
14. In Ram Prasad Rajak v. Nand Kumar & Bros. [(1998) 6 SCC
748 : AIR 1998 SC 2730] , this Court held that existence of the
substantial question of law is a sine qua non for the exercise of
jurisdiction under Section 100 of the Code and entering into the
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question as to whether the need of the landlord was bona fide or
not, was beyond the jurisdiction of the High Court as the issue can
be decided only by appreciating the evidence on record.
15. There may be a question, which may be a “question of fact”,
“question of law”, “mixed question of fact and law” and
“substantial question of law”. Question means anything inquired;
an issue to be decided. The “question of fact” is whether a
particular factual situation exists or not. A question of fact, in the
realm of jurisprudence, has been explained as under:
“A question of fact is one capable of being answered by
way of demonstration–a question of opinion is one that
cannot be so answered. The answer to it is a matter of
speculation which cannot be proved by any available
evidence to be right or wrong.”
(Vide Salmond on Jurisprudence, 12th Edn., p. 69, cited in Gadakh
Yashwantrao Kankarrao v. Balasaheb Vikhe Patil [(1994) 1 SCC
682] , at SCC p. 705, para 34.)
16. In RBI v. Ramakrishna Govind Morey [(1976) 1 SCC 803 :
AIR 1976 SC 830] this Court held that whether the trial court
should not have exercised its jurisdiction differently, is not a
question of law or a substantial question of law and, therefore, the
second appeal cannot be entertained by the High Court on this
ground.
17. In Kulwant Kaur v. Gurdial Singh Mann [(2001) 4 SCC 262]
this Court held that the question whether the lower court’s finding
is perverse may come within the ambit of substantial question of
law. However, there must be a clear finding in the judgment of the
High Court as to perversity in order to show compliance with the
provisions of Section 100 CPC. Thus, this Court rejected the
proposition that scrutiny of evidence is totally prohibited in the
second appeal.
18. In Sheel Chand v. Prakash Chand [(1998) 6 SCC 683 : AIR
1998 SC 3063] , this Court held that question of reappreciation of
evidence and framing the substantial question as to whether the
findings relating to the factual matrix by the court below could
vitiate due to irrelevant consideration and not under law, being
question of fact cannot be framed.
19. In Rajappa Hanamantha Ranoji v. Mahadev Channabasappa
[(2000) 6 SCC 120] this Court held that it is not permissible for the
High Court to decide the second appeal by reappreciating the
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evidence as if it was deciding the first appeal unless it comes to the
conclusion that the findings recorded by the court below were
perverse.
20. In Jai Singh v. Shakuntala [(2002) 3 SCC 634 : AIR 2002 SC
1428] this Court held that it is permissible to interfere even on
question of fact but it has to be done only in exceptional
circumstances. The Court observed as under : (SCC pp. 637-38,
para 6)
“6. … While scrutiny of evidence does not stand out to
be totally prohibited in the matter of exercise of jurisdiction
in the second appeal and that would in our view be too
broad a proposition and too rigid an interpretation of law
not worthy of acceptance but that does not also clothe the
superior courts within jurisdiction to intervene and interfere
in any and every matter–it is only in very exceptional
cases and on extreme perversity that the authority to
examine the same in extenso stands permissible–it is a
rarity rather than a regularity and thus in fine it can be
safely concluded that while there is no prohibition as such,
but the power to scrutiny can only be had in very
exceptional circumstances and upon proper
circumspection.”
21. In P. Chandrasekharan v. S. Kanakarajan [(2007) 5 SCC 669]
this Court reiterated the principle that interference in the second
appeal is permissible only when the findings are based on
misreading of evidence or are so perverse that no person of
ordinary prudence could take the said view. More so, the Court
must be conscious that intervention is permissible provided the
case involves a substantial question of law which is altogether
different from the question of law. Interpretation of a document
which goes to the root of title of a party may give rise to a
substantial question of law.
22. In Shakuntala Chandrakant Shreshti v. Prabhakar Maruti
Garvali [(2007) 11 SCC 668 : (2008) 1 SCC (L&S) 964] this Court
considered the scope of appeal under Section 30 of the Workmen’s
Compensation Act, 1923 and held as under : (SCC pp. 679-80,
paras 39-40 & 42)
“39. Section 30 of the said Act postulates an appeal
directly to the High Court if a substantial question of law is
involved in the appeal.
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40. A jurisdictional question will involve a substantial
question of law. A finding of fact arrived at without there
being any evidence would also give rise to a substantial
question of law. …
***
42. A question of law would arise when the same is not
dependent upon examination of evidence, which may not
require any fresh investigation of fact. A question of law
would, however, arise when the finding is perverse in the
sense that no legal evidence was brought on record or
jurisdictional facts were not brought on record.”
Similar view has been reiterated by this Court in Anathula
Sudhakar v. P. Buchi Reddy [(2008) 4 SCC 594] .
23. In Rishi Kumar Govil v. Maqsoodan [(2007) 4 SCC 465] this
Court while dealing with the provisions of Section 21(1)(a) of the
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)
Act, 1972 and Rule 16 of the U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Rules, 1972, held that the bona fide
personal need of the landlord is a question of fact and should not
be normally interfered with.
24. There is no prohibition to entertain a second appeal even on
question of fact provided the Court is satisfied that the findings of
the courts below were vitiated by non-consideration of relevant
evidence or by showing erroneous approach to the matter.
[Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR
1992 SC 1604] , Prativa Devi v. T.V. Krishnan [(1996) 5 SCC 353]
, Satya Gupta v. Brijesh Kumar [(1998) 6 SCC 423] , Ragavendra
Kumar v. Prem Machinery & Co. [(2000) 1 SCC 679 : AIR 2000
SC 534] and Molar Mal v. Kay Iron Works (P) Ltd. [(2000) 4 SCC
285] ]
25 [Ed. : Para 25 corrected vide Official Corrigendum No.
F.3/Ed.B.J./68/2010 dated 9-7-2010.] . Thus, the law on the
subject emerges to the effect that second appeal under Section 100
CPC is maintainable basically on a substantial question of law and
not on facts. However, if the High Court comes to the conclusion
that the findings of fact recorded by the courts below are perverse
being based on no evidence or based on irrelevant material, the
appeal can be entertained and it is permissible for the Court to
reappreciate the evidence. The landlord is the best judge of his
need, however, it should be real, genuine and the need may not be
a pretext to evict the tenant only for increasing the rent.”
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7. As no substantial question of law arises, accordingly, the appeal fails and
is hereby dismissed.
(G.S.Ahluwalia)
Judge
(and)
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