Sunday, 16 December 2018

Whether law permits only three chances to a party to adduce his evidence?

The appellant has further raised a ground that he was not given proper opportunity to adduce his evidence and his evidence was wrongly closed by the trial Court. It is evident from a perusal of the trial Court's proceedings that from 2-11-2010 to 4-7-2012 the case was fixed for defendant's evidence on several dates. At least on 14 dates, the defendant/appellant failed to produce any evidence. Number of opportunities were granted including on costs the last opportunity but the defendant/appellant did not produce any evidence. The first Appellate Court in paras 20, 21, 22 and 23 has minutely examined the proceedings of the trial Court and has mentioned the dates on which the defendant/appellant was granted opportunities. Thus it cannot be argued that the appellant was not granted proper opportunity of adducing his evidence. It is noteworthy to mention that the law permits only three opportunities to a party to adduce his evidence. Hence, this ground is factually and legally incorrect and does not raise any substantial question of law.

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

S.A. No. 470 of 2014

Decided On: 05.08.2015

 Rajesh Vs. Rajkunwar and Ors.

Hon'ble Judges/Coram:
S.C. Sharma, J.




1. Parties as before this Court.

The present second appeal is arising out of the judgment and decree dated 26-9-2014 passed in Civil Appeal No. 38/2012 by 15th Additional District Judge, Indore, by which, the judgment delivered by the learned Civil Judge, Class-I, Indore has been affirmed.

The respondents being owners and landlords on 14-12-2006 have filed a suit for eviction of the tenants/respondents from the suit premises on the grounds under section 12(1)(a), 12(1)(b), 12(1)(f) and 12(1)(h) of the M.P. Accommodation Control Act.

2. In the said suit it was not in dispute that the respondents are the owners and landlords of the suit premises and the appellant is the tenant therein for nonresidential purpose @ ` 1600/- per month.

3. Before filing the suit a legal notice (Ex-P/3) terminating the tenancy was issued.

4. The respondents filed the suit for eviction against the appellant on the ground of non-payment of rent, sub-letting, bona fide requirement and bona fide requirement for construction. The grounds of arrears of rent and sub-letting are not relevant for the purposes of this appeal as the trial Court has negated the ground under section 12(1)(a) of the Act, though the ground under section 12(1)(b) was found proved by the trial Court but has been negated by the first Appellate Court. The two Courts below have concurrently decreed the suit on the ground under section 12(1)(f) and 12(1)(h) of the Act.

5. The respondents pleaded that the suit accommodation is bonafidely required by them for construction of Yatri Niwas and for this purpose they have prepared plans and are having requisite funds. It was further pleaded that after construction, they shall start business of lodging and for this purpose the respondent do not own or possess any other accommodation. It was further pleaded that near the suit accommodation there is marriage garden wherein marriage and other functions are organized and rooms are required, hence there is good scope of boarding and lodging business and the suit accommodation is suitable for this purpose.

6. To prove their case, the respondents have examined two witnesses namely Prakash Chand (PW/1) and Jugalkishore Sharma (PW/2). A long and exhaustive cross examination was done upon the said witnesses and nothing could be brought on record to demolish the grounds of construction and bona fide need of the respondent. The appellant/defendant did not adduce any evidence in spite of grant of several opportunities to him. Thus there is no evidence in rebuttal.

7. The learned trial Court after appreciating the pleadings of the parties and the evidence on record has held the suit accommodation is bonafidely required by the respondent for reconstruction and for starting their business of lodging and for this the respondent have no other alternative accommodation of their own in the city. The trial Court has also found proved that the appellant is residing at Harda and the suit accommodation has been illegally sub-letted to Sundarlal Sahu and Vinod Sahu.

8. Being aggrieved by the judgment and decree the appellant filed the first appeal. The Appellate Court after re-appreciating the evidence on record has affirmed the findings of the trial Court so far as the grounds under section 12(1)(f) and 12(1)(h) are concerned, however the finding with regard to sub-letting is concerned, the finding are reversed. Now this second appeal has been filed by the Tenant/appellant.

9. In this appeal the appellant has mainly raised ground that a suit for bona fide requirement under section 12(1)(f) and 12(1)(h) of the Act was not maintainable nor could have decreed. In the present case, it is clear that the respondents have pleaded and proved that they shall be starting their business of lodging in the suit accommodation after making re-construction. The respondents have relied upon the judgments reported in 2001 (1) MPWN 56, Bhaiyalal vs. Basantibai, 2006 (4) MPLJ 460, Ghasiram vs. Sharif a Bai and MANU/SC/0560/2009 : (2009) 11 SCC 594, Kusum Devi vs. Mohanlal. From the perusal of the above judgments it is clear that a suit on both grounds is maintainable and both grounds are not destructive to each other. This Court is of the considered opinion that if the landlord pleads that he will start his business after carrying out repairs or reconstruction, there is nothing wrong or illegal. Such a suit basically is suit on the ground of bona fide requirement. Hence, other conditions of section 12(7) are not required to be fulfilled. The substantial question sought to be raised by the appellant stands concluded by the Apex Court in the matter of Kusumdevi (supra) in which it has been told that once the need is proved, the landlord can occupy the accommodation after carrying out repairs or reconstruction and a ground for repairs or reconstruction can be added to the ground of bona fide requirement and such a suit filed on both grounds is maintainable and can be decreed.

10. Another ground which the appellant has raised is that his applications for amendment were wrongly dismissed by the Courts below and the respondent do have alternative accommodation. It has also been contended that the respondent has started Petrol Pump in the same premises. The respondents have denied that the said land is of their ownership nor have they established any petrol pump. The amendments in this regard were rightly rejected by the trial Court and the learned first Appellate Court has rightly upheld the same. The Courts below have concurrently held that to satisfy their need, the respondents do not own or possess any alternative accommodation. In the absence of pleading and any evidence brought on record by the appellant, this ground cannot be raised in second appeal.

11. The appellant has further raised a ground that he was not given proper opportunity to adduce his evidence and his evidence was wrongly closed by the trial Court. It is evident from a perusal of the trial Court's proceedings that from 2-11-2010 to 4-7-2012 the case was fixed for defendant's evidence on several dates. At least on 14 dates, the defendant/appellant failed to produce any evidence. Number of opportunities were granted including on costs the last opportunity but the defendant/appellant did not produce any evidence. The first Appellate Court in paras 20, 21, 22 and 23 has minutely examined the proceedings of the trial Court and has mentioned the dates on which the defendant/appellant was granted opportunities. Thus it cannot be argued that the appellant was not granted proper opportunity of adducing his evidence. It is noteworthy to mention that the law permits only three opportunities to a party to adduce his evidence. Hence, this ground is factually and legally incorrect and does not raise any substantial question of law.

12. The appellant has failed to even point out any illegality or perversity in appreciation of evidence or in the findings recorded by two Courts below and the concurrent findings recorded by the two Courts below are unassailable either factually or legally. Hence no interference in exercise of appellate jurisdiction under section 100, Civil Procedure Code is warranted as this appeal does not involve any question of law much less any substantial question of law.

13. This Court, after giving a patient hearing to the learned counsel for the appellant as well the learned counsel for the respondent, is of the considered opinion that the findings arrived at by the Courts below are certainly concurrent findings of fact and no substantial question of law arises in the present Second appeal.

14. The Apex Court in the case of Gurudev Kumar and others vs. Kaki and others, reported in MANU/SC/2699/2006 : (2007) 1 SCC 546 in paragraphs 45, 49, 51, 70 and 72 has held as under:--

45. The Amendment Act of 1976 has introduced drastic changes in the scope and ambit of section 100, Civil Procedure Code. A second appeal under section 100, Civil Procedure Code is now confined to cases where a question of law is involved and such question must be a substantial one. Section 100, as amended, reads as under:

"100. Second appeal -- (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall be 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 be 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 involved 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."

49. A mere look at the said provision shows that the High Court can exercise its jurisdiction under section 100, Civil Procedure Code only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned Single Judge. It is held by a catena of judgments by this Court, some of them being, Kshitish Chandra Purkait vs. Santosh Kumar Purkait, MANU/SC/0647/1997 : (1997) 5 SCC 438 and Sheet Chand vs. Prakash Chand, MANU/SC/0581/1998 : (1998) 6 SCC 683 that the judgment rendered by the High Court under section 100, Civil Procedure Code without following the aforesaid procedure cannot be sustained. On this short ground alone, this appeal is required to be allowed.

51. Again in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs., MANU/SC/0091/2001 : (2001) 3 SCC 179, another three-Judge Bench of this Court correctly delineated the scope of section 100, Civil Procedure Code. The Court observed that an obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the Court. In the said judgment, it was further mentioned that the High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. According to the Court the word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as section 109 of the Code of Article 133(1)(a) of the Constitution.

70. Now, after 1976 Amendment, the scope of section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under section 100, Civil Procedure Code only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. 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.

72. When section 100, Civil Procedure Code is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law."

This Court is of the considered opinion that as the judgment of the trial Court is based upon purely findings of fact and the findings of fact have been affirmed by the first Appellate Court and as no substantial question of law is involved, the question of interference by this Court does not arise and the Second Appeal is dismissed.


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