Shastri Nagar, Ajmer v. Jai Prakash And Sons, Raja Cycle, Shrinagar Road, Ajmer, Hindu Undivided Family T

Jai Prakash And Sons, Raja Cycle, Shrinagar Road, Ajmer, Hindu Undivided Family Through Karta And Manager Shri Jai Prakash S/o Shri Amba Lal R/o Raja Cycle Chauraha, Shrinagar Road, Ajmer- Deceased Through His Legal Heirs-

1. Shrimati Mamta W/o Shri Puneet Mehra And D/o Deceased Shri Jai Prakash R/o 13-Nagina Baag, Ashok Marg, Ajmer.

2. Shrimati Pooja W/o Shri Prateek Tandon And D/o Deceased Shri Jai Prakash R/o House No. 4, Near JLN Hospital, Kala Baag, Ajmer. ----Respondent For Appellant(s) : Mr. Puru Malik For Respondent(s) : HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 27/05/2025 Order

1. Instant Civil Second Appeal is preferred by the appellants- defendants aggrieved from dismissal of Civil Regular Appeal No.9/2012 (95/2012) passed by learned Additional District Judge No.1, Ajmer on 29.10.2024 affirming the judgment and decree for [2025:RJ-JP:23046] (2 of 8) [CSA-43/2025] eviction dated 05.10.2012 in Civil Suit No.35/2003 passed by learned Civil Judge (Junior Division), Ajmer (South), Ajmer.

2. Learned counsel for the appellants while relying upon grounds of appeal submitted that the basis of bona fide need claimed by plaintiff has extinguished during pendency of the civil suit and same is evident from the material available on record but the Appellate Court has failed to appreciate the grounds raised by appellant-defendant. He further submitted that the plaintiff has already sold the second floor and need to install lift has already extinguished and now disputed shop is not required for installation of lift. He further submitted that the appellant-defendants are carrying on business and in case they be forced to vacate the suit premises then they will suffer comparative hardship than plaintiff. He further submitted that the respondent-plaintiff has suppressed and concealed material fact which are essential to show bona fides of plaintiff but both the Courts below have failed to appreciate the same. He also submitted that the some documents were filed on record but these documents were not taken on record which is contrary to principle of law to dispose application under Order 41 Rule 27 CPC by the Appellate Court. Learned counsel further submitted that he has filed documents relating to deposit of rent under Section 19 CC before the Civil Court and no rent was due on date of filing of suit. He further submitted that the law does not prescribe for notice before depositing the rent every time and deposit is legal and valid tender of rent. He also submitted that the trial Court has committed serious error while not considering deposit of rent under the provision of law. At last, he submitted [2025:RJ-JP:23046] (3 of 8) [CSA-43/2025] that he raised certain grounds which give rise to substantial question of law.

3. Heard learned counsel for the appellant and perused the material placed on record.

4. In a suit for eviction filed by respondent-plaintiff on ground of default, bona fide need & necessity and non user, the trial Court after framing the issue and recording the evidence of parties, has decreed the suit on ground of default, bona fide need & necessity. Thereafter, an appeal is preferred by the appellant-defendant along with an application under Order 41 Rule 27 CPC for taking on record certain documents but the appeal was dismissed along with the application.

5. Here in this case, we are dealing a second appeal under Section 100 of CPC and this Court can only consider an appeal when it give rise to a substantial question of law. In absence of any substantial question of law, an appeal cannot be entertained, it means, the grounds must show that the decision is contrary to law or the Courts below have failed to adjudicate any material issue or ignored the material on record while deciding the litigation between the parties.

6. The first ground of eviction is non-payment of rent and second default in the instant case. The appellant-defendants have examined DW-1 Malik Raj Gujral and DW-2 Anil Gujral as a witness and also exhibited documents from Ex.A-1 to Ex.A-7. It is also evident that earlier suit No.134/1996 was disposed of on

24.02.2001 wherein the benefit of first default was granted to appellant-defendants and now the second suit is filed on subsequent default. The admission and the evidence of defendant [2025:RJ-JP:23046] (4 of 8) [CSA-43/2025] clearly indicate that the trial Court while considering judgment of Hon’ble Supreme Court has observed that the appellant-defendant has not followed the procedure as prescribed under the law, therefore, he is not entitled for protection or adjustment of the deposit made by him. Since, the findings were based on judgment of Hon’ble Supreme Court, therefore, same cannot be treated as contrary to law therefore second default is not a subject matter for consideration.

7. Now comes the another issue that the plaintiff has filed a statement on basis of bona fide and personal need to install a lift after eviction from the suit premises to approach second floor but during pendency of the litigation, the appellant has brought on record that second floor was already sold by the landlord, so his need have extinguished. A suit is filed in year 2003 and after decree in 2012, the suit property was not vacated which means the appellants-defendants have resisted the eviction proceedings by filing an appeal. A landlord if forced by circumstances decides to sell a particular portion of property but retains the property in question, then it cannot be presumed that his needs are extinguished.

8. In case of Kanahaiya Lal Arya vs Mohammad Ehshan and Ors. : 2025 INSC 271, Hon’ble Supreme Court has held that the need has to be real one and not a mere desire to get the premises vacated. The landlord is the best judge to decide which of the property should be vacated for satisfying his particular need. The tenant has no role in dictating as to which premises the landlord should get vacated for his need alleged in suit for eviction. [2025:RJ-JP:23046] (5 of 8) [CSA-43/2025]

9. Herein, the issue is already decided by catena of judgments by Hon’ble Supreme Court, therefore, there is no need to re- consider a factual issue as raised by learned counsel for the appellant. 10. As regard to dismissal of application under Order 41 Rule 27 CPC is concerned, we have considered the reasons assigned by the Appellate Court but when there is no triable issue, then only on basis of this application, we cannot entertain a second appeal.

11. Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a substantial question of law. Thus, the First Appellate Court is final court on facts and in second appeal normally cannot re-appreciate the evidence or facts.

12. Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd. AIR 1962 SC 1314, as under: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

13. Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil [2025:RJ-JP:23046] (6 of 8) [CSA-43/2025] Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the scope of Section 100 of CPC and summarised the law as under:

13. The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles. 13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction. 13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that: “At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the section is that the appeal shall be heard only on that question.” Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71 [2025:RJ-JP:23046] (7 of 8) [CSA-43/2025]

13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:- a) Not previously settled by law of land or a binding precedent. b) Material bearing on the decision of case; and (c) New point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. Therefore, it will depend on facts of each case. Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and Chandrabhan v. Saraswati 2022 SCC Online SC 1273.

16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 referring to various other cases held:- a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse. b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity. c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection.

14. In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC 405, Hon’ble Supreme Court explained the purpose of framing question of law in following manner: “a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question. b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon. c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.”

15. Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following words:- [2025:RJ-JP:23046] (8 of 8) [CSA-43/2025] “(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.”

16. In view of discussion made hereinabove, the instant S.B. Civil Second Appeal is hereby dismissed with pending application, if any. MR/90 (ASHOK KUMAR JAIN),J