DEVI DAS v. SMT. VEERBALA MALPANI & ORS.

Plaintiffs/respondents filed a suit for eviction in respect of rented premise in the trial Court against defendant/appellant, which was decreed by the trial Court on the ground of material alteration in the rented premise as well as personal bonafide necessity. Finding of the trial Court was affirmed by the First Appellate Court while dismissing the first appeal of defendant/ appellant. Hence, this second appeal has been preferred on behalf of defendant.

3. During pendency of this appeal, no interim stay order was passed by this Court against eviction of appellant, therefore, in pursuance of execution of impugned decree of [2] SB CIVIL SECOND APPEAL397/2009 DEVI DAS Vs. SMT. VEERBALA MALPANI & ORS. eviction, rented premise was vacated and possession of it was delivered to plaintiffs/ respondents.

4. In these circumstances, the learned counsel for appellant has filed an application for restoration of the possession, whereas the learned counsel for respondents has filed an application on the same day informing this Court about taking possession of the rented premise by them in execution of impugned decree passed by both the Courts below.

5. Learned counsel for parties have argued the appeal on merits.

6. I have considered their submissions and also examined the impugned judgments passed by both the Courts below and I find that no substantial question of law is involved in this second appeal so as to entertain it.

7. Controversial issues involved in the present case are relating to question of facts and there is concurrent finding of facts by both the Courts below, which cannot be interferred with by this Court in second [3] SB CIVIL SECOND APPEAL397/2009 DEVI DAS Vs. SMT. VEERBALA MALPANI & ORS. appeal under Section 100 CPC.

8. A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram vs. Ameerchand- (1981) 2 SCC 414, considered the effect of amendment made in Section 100 of the CPC in 1976, and held as under: “......The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law.”

9. The Hon'ble Supreme Court, in Ramaswamy Kalingaryar Vs. Mathayan Padayachi-AIR 1992 SC 115, while considering the scope of Section 100 CPC, held as under: “......Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of S.100, C.P.C., which defines the contours of the power of the High Court in second appeal. .....” [4] SB CIVIL SECOND APPEAL397/2009 DEVI DAS Vs. SMT. VEERBALA MALPANI & ORS.

10. The Hon'ble Supreme Court in Gurdev Kaur & Others Vs. Kaki & Others-(2007) 1 SCC 546, considered the true import, scope and ambit of Section 100 CPC by referring the Section 100 CPC, before and after amendment of 1976, various declarations of law by Privy Council and Supreme Court, Legislative background in the 54th Report of the Law Commission of India submitted in 1973, Historical perspective, Rational behind permitting second appeal on substantial question of law, and held as under: Despite “81. repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates legislative intention.

82. In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the Hihg Court in law could not have interfered with pure findings of facts arrived at by the courts [5] SB CIVIL SECOND APPEAL397/2009 DEVI DAS Vs. SMT. VEERBALA MALPANI & ORS. below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.”

11. Hon'ble Supreme Court in Dinesh Kumar Vs. Yusuf Ali, reported in (2010) 12 SCC 740 held that 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 obligation on the court of law to further the clear intendment of the legislature and not to frustrate it by ignoring the same.

12. No substantial question of law is involved in this second appeal, therefore, it is dismissed in limine.

13. Since second appeal itself has been dismissed in limine, therefore, no order is required to be passed on both the applications and the same also stand disposed off. (NARENDRA KUMAR JAIN),J. /KKC/ [6] SB CIVIL SECOND APPEAL397/2009 DEVI DAS Vs. SMT. VEERBALA MALPANI & ORS. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER S.B.CIVIL MISC. STAY APPLICATION NO.1994/2009 IN S.B. CIVIL SECOND APPEAL NO.397/2009 DEVI DAS Vs. SMT. VEERBALA MALPANI & ORS. DATE: 16.05.2011 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. S.Kasliwal, Senior Counsel with Mr. R.N. Vijay, for the appellant. Mr. Sudesh Bansal, for the respondents. **** Since the main appeal itself has been dismissed, therefore, this stay application does not survive and the same also stands dismissed. (NARENDRA KUMAR JAIN),J. /KKC/