Full Judgment Text
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CASE NO.:
Appeal (civil) 6116 of 2000
Special Leave Petition (civil) 11661 of 2000
PETITIONER:
LEELA SONI AND ORS.
Vs.
RESPONDENT:
RAJESH GOYAL AND ORS
DATE OF JUDGMENT: 03/09/2001
BENCH:
S.S.M.Quadri
JUDGMENT:
J U D G M E N T
SYED SHAH MOHAMMED QUADRI, J.
Leave is granted.
This appeal is from the judgment and order of the High Court
of Judicature of Madhya Pradesh, Jabalpur Bench at Gwalior,
decreeing the suit of the landlord against the tenant, by allowing the
Second Appeal No. 18 of 1993 on May 4, 2000.
The appellants are the legal representatives of the original
tenant, late Kanwar Lal Soni (referred to in this judgment as, ’the
tenant’) and the respondents are the successors-in-interest of the
landlord, late Madho Lal Basant Lal (hereinafter referred to as, ’the
landlord’). The tenant obtained premises No. 83 situated at Agra-
Mumbai Road, Shivpuri, (M.P.) (hereinafter referred to as, ’the suit
accommodation’) from the landlord on rent of Rs.30/- p.m. which was
later enhanced to Rs.40/- p.m. The landlord filed the suit (Civil Suit
No.63-A/86) in the court of Second Civil Judge, Class II, Shivpuri,
against the tenant for eviction of the suit accommodation on two
grounds: (i) default in payment of rent of Rs.1080/- and claiming total
sum of Rs.1210/-, said to be due, from the tenant - under Section
12(1)(a) and (ii) encroachment on a portion of land not let to him and
raising construction thereon (referred to as, ’the disputed portion’) -
under Section 12(1)(o) of the Madhya Pradesh Accommodation
Control Act, 1961 (for short, ’the Act’). The tenant pleaded that the
rent due was deposited after the service of notice of the suit and that
the alleged unauthorised construction was made with due permission
of the landlord.
The trial court gave the benefit of sub-section (5) of Section 13
of the Act to the tenant on the first ground and passed a decree
directing the tenant to vacate the disputed portion and to pay to the
landlord damages at the rate of Rs.10/- P.M. for the said portion
within two months from the date of the judgment on the second
ground and, thus, decreed the suit on August 24, 1987.
Dissatisfied by the judgment and decree of the trial court, the
landlord filed First Appeal No.30-A of 1992 in the Court of the
Second Additional Judge to District Judge, Shivpuri. The landlord
contended before the first appellate court that during the pendency of
the appeal the tenant did not pay/deposit the rent of the suit
accommodation and that he did not vacate the disputed portion of the
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house within the time granted by the trial court. The learned first
appellate Judge held that it was not essential that rent should be
deposited during the pendency of the appeal and that in any event that
fact was not proved by the landlord. On the question of handing over
of possession of the disputed portion, it was held that the landlord
failed to prove that the nature of the construction on the disputed
portion was of permanent nature and caused prejudice to him, the cost
of the suit accommodation was reduced or deteriorated as a result of
such construction. In that view of the matter, the appeal of the
landlord was dismissed on November 16, 1992.
Challenging the validity of the judgment and decree of the first
appellate court, the landlord filed Second Appeal No.18 of 1993 in the
High Court of Madhya Pradesh. The High Court modified the
judgment of the first appellate court confirming the judgment and
decree of the trial court and decreed the suit of the landlord for
eviction of the tenant from the suit accommodation by judgment and
decree, impugned in this appeal.
Mr. Shiv Sagar Tiwari, learned counsel appearing for the
tenant, contended that the High Court interfered with the findings of
fact recorded by the first appellate court and that the tenant had
paid/deposited all the rent due to the landlord before the first appellate
court as well as the High Court on various dates; the first appellate
court’s findings that the disputed construction did not diminish the
value of the suit accommodation or caused any prejudice to the
landlord, ought not to have been interfered with and decree for
eviction of tenant ought not to have been passed by the High Court.
Mr. Sushil Kumar Jain, learned counsel appearing for the
landlord, argued that the findings recorded by the first appellate court
were wholly erroneous and that the High Court committed no error of
law in recording findings on the points which were not determined by
the first appellate court. The judgment of the High Court, it was
submitted, did not warrant any interference.
To appreciate the contentions of the learned counsel, it would
be useful to refer to the provisions of clause (a) and (o) of sub-section
(1) of Section 12 of the Act, which are relevant for our purpose. They
are set out hereunder:
"12. Restriction on eviction of tenants. -
(1) Notwithstanding anything to the contrary
contained in any other law or contract, no suit
shall be filed in any Civil Court against a
tenant for his eviction from any
accommodation except on one or more of the
following grounds only namely: -
(a) that the tenant has neither paid nor tendered
the whole of the arrears of the rent legally
recoverable from him within two months of
the date on which a notice of demand for the
arrears of rent has been served on him by the
landlord in the prescribed manner;
(b) to (n) *
(o) that the tenant has without the written
permission of the landlord also taken
possession of such portion or portions of
accommodation which is not included in the
accommodation let to him and which the
tenant has not vacated in spite of a written
notice of the landlord in that behalf."
A perusal of the provisions, extracted above, shows that sub-
section (1) of Section 12 of the Act which commences with a non-
obstante clause gives an overriding effect to it over any other law or
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contract and creates an embargo on filing a suit in any Civil Court
against a tenant for his eviction from any accommodation on any
ground except those specified in clauses (a) to (p) thereof.
Clause (a) of sub-section (1) of section 12 of the Act embodies
one of the permissible grounds on which a suit for eviction of a tenant
can be filed. It says that if the tenant had neither paid nor tendered the
whole of the arrears of rent legally recoverable from him within two
months of the date on which a notice of demand for the arrears of rent
has been served on him by the landlord, in the prescribed manner, the
landlord can seek eviction of the tenant. It may be noticed that the
rigour of clause (a) of sub-section (1) is softened by sub-section (3) of
Section 12 of the Act which forbids the court from making an order of
eviction against the tenant on the said ground if the tenant complies
with Section 13 of the Act. Sub-section (1) of Section 13 of the Act
enables a tenant to deposit in the Court or pay to the landlord the
arrears of rent within one month of service of writ of summons or
notice of appeal or other proceeding, or within such further time as the
court may allow, and thereafter continue to deposit or pay the rent
month by month by the 15th of each succeeding month, till the
decision of the suit, appeal or proceedings, as the case may be. Sub-
section (2) of Section 13 deals with payment of rent in case of dispute
as to the amount of rent payable by the tenant and is not relevant for
our purpose. Sub-section (5) of Section 13 directs that if a tenant
makes deposit or payment under sub-sections (1) and (2) of that
section, no decree or order shall be made by the Court for the recovery
of possession of the accommodation on the ground of default in
payment of rent by the tenant. In such a case, the Court is enabled to
allow such cost to the landlord, as it may deem fit. Sub-section (6)
which is supplement to sub-section (5) of Section 13, says that if a
tenant fails to deposit or pay any amount as required by that section,
the Court may order the defence against eviction to be struck out and
shall proceed with the hearing of the suit, appeal or proceedings, as
the case may be.
Clause (o) of sub-section (1) of Section 12 contains yet another
ground for eviction of a tenant. It provides that if the tenant has also
taken possession of such portion of accommodation which is not
included in the accommodation let to him, without the written
permission of the landlord, and which the tenant has not evicted in
spite of a written notice of the landlord in that behalf, he may seek
eviction of the tenant from the suit accommodation. It may be apt to
notice here that the said clause is controlled by sub-section (11) of
Section 12 of the Act which forbids the court from making an order of
eviction of the tenant on the said ground if the tenant within such time
as may be specified in this behalf by the court, vacates the portion of
the accommodation not let to him and pays to the landlord such
amount by way of compensation as it may direct. A combined reading
of clause (o) of sub-section (1) and sub-section (11) of Section 12 of
the Act shows that it’s the failure of a tenant to comply with the
decree/direction of the Court to vacate the portion of accommodation
unauthorisedly occupied by him and to pay the damages which will
entail the order of eviction on the ground contained in clause (o).
It needs to be emphasised here that the grounds mentioned in
clauses (m) and (o) of sub-section (1) of Section 12 are two distinct
grounds. They are mutually exclusive.
Clause (m) reads as under:
"(m) that the tenant has, without the written
permission of the landlord, or permitted to be
made, any such construction as has materially
altered the accommodation to the detriment of the
landlord’s interest or is likely to diminish its value
substantially."
A perusal of this clause shows that it embodies a further ground
to seek eviction of the tenant who has without the written permission
of the landlord made construction or materially altered the
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accommodation to the detriment of the landlord’s interest or such
construction is likely to diminish its value substantially. Whereas
clause (m) speaks of unauthorised construction within the
accommodation let out to the tenant, which has materially altered the
accommodation to the detriment of the landlord’s interest or is likely
to diminish its value substantially, clause (o) talks of unauthorisedly
occupying a portion or portions of the accommodation not forming
part of the tenanted accommodation and not vacating the same in spite
of written notice of the landlord to the tenant. In the latter case, there
is no need for the landlord to prove that the unauthorised occupation
of a portion or portions of the accommodation not let out to the tenant,
is to the detriment of landlord’s interest or that it diminishes the value
of his accommodation substantially.
Within the parameters of the provisions discussed above, the
trial court gave the benefit of clause (5) of Section 13 of the Act to
the tenant in regard to default in payment of rent and in regard to
unauthorised occupation of the accommodation not let out to the
tenant, it passed the decree in terms of sub-section (11) of Section 12
of the Act against the tenant without making any order of eviction
against the tenant.
It appears that in his appeal before the Second Additional Judge
to Distt. Judge, Shivpuri, against the judgment and decree of the trial
court, the landlord filed an application under Section 13 (6) of the Act
alleging that the tenant defaulted in depositing the rent during the
pendency of the appeal but the tenant did not refute the allegation by
putting forth any acceptable explanation. The first appellate court on
misconception of law wrongly placed the burden on the landlord to
prove that the rent was not paid during the pendency of the appeal and
erroneously dismissed that ground. On the question of non-
compliance of the decree of the trial court in regard to vacating the
portion unauthorisedly occupied by him (tenant) and paying the
compensation, the first appellate court held that the landlord had not
shown that by constructing a temporary shed and converting it into a
room, the value of the suit accommodation had been reduced or its
nature had been changed or in any way the interest of the landlord had
been prejudiced. The first appellate court not only failed to notice the
distinction between clauses (m) and (o), pointed out above, but also
read the requirements of clause (m) into clause (o) of sub-section (1)
of Section 12 of the Act and misdirected itself. To say the least both
the conclusions of the first appellate court are erroneous and
unsustainable.
The High Court, on the basis of record before it, held that the
averments made in the application made by the landlord under Section
13(6) of the Act remained unrebutted and uncontroverted and
recorded the finding that the rent remained unpaid during the
pendency of the appeal and as such the defence of the tenant ought to
have been struck out and the appeal should have been allowed by the
first appellate court. It further held that in execution of the decree of
the trial court, some of the legal representatives of the original tenant
filed an undertaking that they would comply with the decree of the
trial court in regard to vacating the disputed portion which was
recorded by the executing court. But that undertaking was not
fulfilled. Consequently, there was no option left for the first appellate
court except to pass an appropriate order under clause (o) of sub-
section (1) of Section 12 of the Act.
The question that arises here is: has the High Court exceeded its
jurisdiction in recording the findings noted above?
There can be no doubt that the jurisdiction of the High Court
under Section 100 of the Code of Civil Procedure (C.P.C.) is confined
to the framing of substantial questions of law involved in the second
appeal and to decide the same. Section 101 of C.P.C. provides that no
second appeal shall lie except on the grounds mentioned in Section
100 of C.P.C. Thus it is clear that no second appeal can be
entertained by the High Court on questions of fact much less can it
interfere in the findings of fact recorded by the Lower Appellate
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Court. This is so, not only when it is possible for the High Court to
take a different view of the matter but also when the High Court finds
that conclusions on questions of fact recorded by the first appellate
court are erroneous [see : Afsar Sheikh & Anr. vs. Soeman Bibi &
Ors. (1976 (2) SCC 141)].
It will be apt to refer to Section 103 of C.P.C. which enables the
High Court to determine the issues of fact:
"103. Power of High Court to determine issue of
fact.- In any second appeal, the High Court may, if the
evidence on the record is sufficient, determine any issue
necessary for the disposal of the appeal, -
(a) which has not been determined by the Lower
Appellate Court or both by the Court of first instance
and the Lower Appellate Court, or
(b) which has been wrongly determined by such court or
courts by reason of a decision on such question of
law as is referred to in section 100."
The section, noted above, authorises the High Court to
determine any issue which is necessary for the disposal of the second
appeal provided the evidence on record is sufficient, in any of the
following two situations : (1) when that issue has not been determined
both by the trial court as well as the Lower Appellate Court or by the
Lower Appellate Court; or (2) when both the trial court as well as the
Appellate Court or the Lower Appellate Court has wrongly
determined any issue on a substantial question of law which can
properly be the subject matter of second appeal under Section 100 of
C.P.C. [see : Jadu Gopal Chakravarty (D) by his L.Rs. vs. Pannalal
Bhowmick & Ors. (1978 (3) SCC 215)].
Inasmuch as in the instant case on both the issues relating to
clauses (a) and (o), referred to above, on account of its erroneous
approach the first appellate court did not determine the relevant
issues, in our view, the High Court was well within its jurisdiction in
recording the afore-mentioned findings of fact for which the evidence
was on record as Section 103 of the C.P.C. empowers the High Court
to determine such issues of fact.
In the result, we find no illegality in the judgment and order of
the High Court, under challenge. The appeal is devoid of any merit. It
is dismissed with costs.
(S.N. Phukan)