JUDGMENT
Bhuvaneshwar Prasad, J.
1. This second appeal has come up for admission and the parties have been heard under the provisions of Order XLI, Rule 11 of the Code of Civil Procedure, 1908 (in short ‘the Code’). It is directed against the judgment and decree dated 23-11-1990 passed by Sri Rajendra Pd. No. 1, Additional District Judge, 5th Court, Patna, in Title Appeal No. 106 of 1988/29 of 1988, confirming the judgment and decree dated 23-5-1988 passed by the Subordinate Judge 3rd Court, Patna in Title Suit No. 141 of 1978/50 of 1976. 1 he appellant was the defendant before the learned trial Court, whereas, respondent No. 1 was the original plaintiff in the suit. Subsequently, respondent Nos. 2 to 5 were added as co-plaintiffs.
2. It appears that respondent No. 1 had filed the aforesaid Title (Eviction) Suit in the Court of the Subordinated Judge, 3rd Court, Patna. The suit was for the ejetment of the present appellant from the suit premises, and for the realisation of the arrears of rent on the ground of default in payment of the arrears of rent, as also on the ground of the personal necessity. The present appellant who was the defendant in the suit was occupying the suit premises as a tenant on monthly rental. The learned trial court by his judgment dated 23-5-1988 decreed the suit on contest with a direction to the defendant to deposit the arrears of rent at the rate of Rs. 175 per month from January, 1976 to May, 1978 within three months, and also to vacate the suit premises within the same period.
3. It appears that the present appellant filed the appeal before the learned District Judge, Patna against the aforesaid judgment and decree passed by the learned Subordinate Judge, 3rd Court, Patna. The appeal was heard by Sri Rajendra Pd. No. 1, 5th Additional District Judge, Patna, who by his judgment dated 23-11-1990 dismissed the appeal and confirmed the judgment and decree passed by the learned trial court. It is against this judgment and decree that the present appeal has been filed.
4. From the facts of this suit it would appear that plaintiff No. 1 claimed to be the owner of the suit premises which is a pucca double storied residential house having four flats situated in Mohalla Chiraiyatarh, P.S. Kankarbagh, in the town of Patna, It further appears that the present appellant-defendant was inducted as a tenant in one of the flats of the ground flour in the year 1967 on a monthly rental of Rs. 175 payable according to the English Calendar. However, he defaulted in the payment of rent from January, 1976 to May, 1978 without any reason, and become a defaulter in the eyes of law. Further, plaintiff No. 1 contended that he required the suit premises for his personal use and occupation since he was going to retire from service soon.
5. During the pendency of the suit, plaintiff No. 1 sold the entire suit, premises to plaintiff Nos. 2 to 5 through four registered sale-deeds (Exts. 2 to 2/C). The sale also included the arrears of rent due against the appellant-defendant. After the purchase, the vendees were impleaded as plaintiff Nos. 2 to 5 and they are respondent Nos. 2 to 5 in this second appeal.
6. In this connection, my attention has been drawn to paragraph No. 8 of the additional written statement filed on behalf of the appellant before the court below, in which he has admitted that respondent Nos. 2 to 5 had stepped into shoes of plaintiff No. 1.
7. So far the default in payment of rent is concerned, it appears from the judgments of both the courts below that the appellant had defaulted in payment of rent for 29 months from January, 1976 to May, 1978. The contention of the appellant about the payments of Rs. 525 on two occasions made by him on 2-1-1977 and 7-3-1977 were not accepted by the courts below. The same is the case with respect to his claim for Rs. 900 spent on the repairs of the building in suit. Both the courts below have concurrently found that so far as the claim for the payment of the rent from January, 1976 to December, 1976 was concerned, there was absolutely no document. In this connection, my attention has been drawn to the evidence of appellant (D.W. 1) who has stated in paragraph 5 of his evidence that from January, 1976 to December, 1976 he used to remit rent at the rate of Rs. 150 per month through money orders. No documents has been produced in support of this contention. Similarly, for the rent from January 1977 to December, 1977, it is the admitted position that the appellant not sent any Money Order for the rent for this period, and no Money Order receipt could be produced for the same. Under these circumstances, it appears that the findings of the two courts below, that the appellant had defaulted in payment of the rent of the suit premises for the abovementioned periods appear to be based on the materials on record and are concurrent in nature.
8. In this appeal which appears to have been filed under Section 100 of the Code a number of substantial questions of law have been raised as mentioned in the memorandum of appeal, which I will deal with at the appropriate places. The question is whether the appeal is fit for admission or not, and in this respect the parties have been heard.
9. The parties have addressed the court on the point of true scope of Section 100 of the Code, under which this second appeal has been filed. In this connection my attention has been drawn on behalf of the appellant, to the case of Variety Emporium v. R.V.R. Mohd Ibrahim Naina . In this decision it was held that when the findings of the learned courts below were shown to be manifestly unjust, it was the duty of the Supreme court remedy injustice under Article 136 of the Constitution of India. It was further held in this case, that in a suit for eviction filed on the, around of bona fide requirement of the suit premises, subsequent events shall also be taken into consideration. Also reliance has been placed on the case of Kedarnath Bohra v. Md. Safiulla . This is a single Bench decision of this Court, in which it was held that if the courts below apply wrong legal tests to the facts found and/or adopt wrong legal approach to a case, and thus arrived at a wrong finding a case for interference under Section 100 of the Code is made out. It was further held that if the courts below had misdirected themselves in law while deciding the question of bona fide requirement, then the finding of lower courts on that question can be interfered with in second appeal. Also it was held that in a suit for eviction on the wound of bona fide requirement of premises once the need is established by the plaintiffs, the courts have no jurisdiction to probe further into the matter and try to weigh and balance it according to its social philosophy. The ‘need’ is not justiciable thereafter. Also my attention has be drawn to the case of Smt Sonawati v. Sri Ram in which it was held that if the lower appellate court arrived at its conclusion ignoring important evidence on record, its conclusion is not binding in second appeal.
10. The true scope of Section 100 of the Code had come up for consignation before Hon’ble Supreme Court from time to time. In the case of Tamchandra v. Ram Lingam which was a case under the old Section 100 of the Code, it was held that the High Court could interfere with the findings of the lower appellate court, if it is satisfied that.
I. This decision is contrary to law; or
II. Some usage having force of law; or
III. The decision has failed to determine some material issue; or
IV. There is substantial error or defect in the procedure as provided by law.
It was further held according to Clause (C) of old Section 100(1) of the Code the error or defect should be connected with or relating to the procedure. It should not bean error or defect in appreciating the evidence. Further it was observed that even if the appreciation of evidence by the lower appellate Court is patently erroneous and the finding of fact is also grossly erroneous that cannot be said to be a substantial error or defect in the procedure. After the new Section 100 was substituted in place of old section, it was held in the case of Mahendra and Mahendra Ltd. v. The Union of India AIR 1979 SC 798 that according to the new sections the second appeal would lie to the High Court when the High Court is satisfied that the case involves the substantial question of law. Further in the case of Madan Lal v. Gopi , it was held that the High Court was justified in re-appreciating the evidence and coming to its own conclusion, if the court below ignored the weight of evidence and allowed the judgment to be influenced by inconsequential matters. The same appears to be the finding of the Hon’ble Supreme Court in the case of Htra Lal v. Gajjan 1990 (3) SCC 285. Again in the case of Budhbanti v. Gulab Chand Pd. 1987 BBCJ 316 (SC) : 1987 BLJR 22 (SC) it was observed by the Hon’ble Supreme Court as follows:
It is true that in a second appeal a finding of fact even if erroneous will generally not be distributed, but where it is found that the finding is vitiated by the application of wrong test or on the basis of conjectures and assumption, then the High Court will be within its right in setting aside in the second appeal patently erroneous finding in order to reader justice to the parties affected by the erroneous finding.
In the present case, however, there does not appear any erroneous finding by the learned two courts below. Also a reference may be made to the case of Smt, Jahajo Devi v. Moharam Ali 1988 BLJR 33 (SC), in which it was held that the High Court was not justified under Section 100 of the Code in interfering with the finding of facts of the courts below on the question of default in payment of rent, and bona fide personal necessity of the landlord, recorded concurrently by the two courts below in favour of the plaintiff landlord. Earlier in the case of Damadi Lal v. Patashuram , which was also a case under the Old Section 100 of the Code, the question for determination was bona fide requirement of the landlord. It was found that the plaintiff could not adduce sufficient and proper evidence in the suit. It was held that if the finding of fact is arrived at ignoring important and relevant evidence, the finding is bad in law, and the High Court would be within its jurisdiction in setting aside the findings of the lower appellate court, and restoring that of the trial court on this point. In this case reliance was placed on the case of Radha Nath Seal v. Had Pada Jena AIR 1971 SC 1047.
11. In the case of Dutta Cycle Stores v. Gita Devi Sultania . The facts were as follows:
The suit was brought under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 on the ground of default. The trial court held that the rent for the month of February, 1974 and May to August, 1974 was not paid by the tenant. The District Judge on appeal held that the rent for the month of May and June 1974 was not paid. The second appeal filed before the High Court was dismissed in limine. The matter was taken to the Supreme Court under Article 136 of the Constitution. The Hon’ble Supreme Court held, whether or not the rent for two months was duly paid is a question of fact and under Article 136 of the Constitution the Supreme Court will not ordinarily interfere with the concluded findings of the fact by the courts below, but where the finding of fact is based on no evidence or upon totality of evidence and contrary to the rational conclusion, to which the state of evidence must reasonably lead, the Supreme Court will, in exercise of its discretion interfere to prevent the miscarriage of justice.
From the facts of said case, it would appear that neither the first plaintiff (widow) nor the other plaintiffs (her sons) testified in support in the plaint. Her nephew (P.W. 4) frankly admitted in evidence that he had no personal knowledge of the facts alleged. On the other hand, the defendant categorically stated that he had paid the rent to the first plaintiff. Under the aforesaid facts the Hon’ble Court held as above.
12. Form these discussions, the true scope of Section 100 of the Code will become clear. It will also become clear when this Court can interfere with the findings of facts recorded by the two courts below. In this background, I will now proceed to examine the various findings of the learned two courts to find out how far they warrant interference in second appeal under Section 100 of the Code.
13. From the facts of the present case, it would appear that respondent Nos. 2 to 5 were the purchasers of the suit, premises, as also of the entire holding of plaintiff No. 1 through four sale-deeds (Exts. 2 to 2/C) during the pendency of the suit. The sale-deeds were executed between the period from 7-6-1980 to 16-6-1980. In this connection it has been argued on behalf of the learned Counsel for the appellant that the subsequent vendees, namely, respondent Nos. 2 to 5 could not realise the arrears of rent from his, inasmuch as, that it is forbidden by law. In this connection, my attention has been drawn to the single Bench decision of this Court in the case R. Dayal v. Md. Yasin 196R BLJR 647, in which a reliance was placed on the case of Smt. Daya Devi v. Chapvla Devi AIR I960 Cal 378. Relying on this decision it was held that even when the subsequent vendee purchased all arrears of rent due from the tenant at the time of the purchase; as soon as the accumulated amount of arrears of rent, was transferred by the sale-deed to the plaintiffs, it ceased to have the character of arrears of rent which was payable by the tenant to the transferor. The transferees may be entitled to realise this money from the tenant, if they have validly purchased the actionable claim or right to realise the claim which was due to the previous landord. On the strength of this decision, it has been submitted on behalf of the appellant that before the learned courts below, that the subsequent transferees (respondents 2 to 5) could not have obtained a decree for realisation of the arrears of rent against him. This contention of the learned Counsel for the appellant, however, does not appear to be correct, inasmuch as, the decision in the case of Smi, Daya Devi (supra) has since been overruled by the Hon’ble Supreme Court in the case of S.K. Reddi v. N.V. Reddi and Anr. ). In this case, it was clearly held that the arrears of rent do not lose their character and become an actionable claim on the assignment thereof and the eviction suit by the subsequent transferee, can therefore, be maintained on the ground of arrears of rent. Further the decision in the case of Daya Devi (supra) was overruled by the Hon’ble Supreme Court. From this decision it would appear that the Single Bench decision of this Court in the case of Raghubar Dayal (supra) was also impliedly overruled.
14. However, the learned Counsel for the appellant has drawn my attention to the case of Bibi Sabbo v. Bibi Jaibunha 1986 PLJR 1042. This is a single Bench decision of this Court. The facts of the said case appear to be, however, entirely different. In the said case the suit property was transferred during the pendency of the suit, but the arrears of rent was not assigned to the transferee. It was under this circumstances that it was held that the transferee could not realise the arrears of rent due to the transferor in absence of any such assignment. It is thus clear that this decision is of no help to the appellant. It may be pointed out in this connection that it is not in dispute that through Exts. 2 to 2/C, the claim for the arrears of rent was also transferred to the vendee, namely, respondents 2 to 5 as will appear from the Exts. 2 to 2/0. This being the position, it was submitted that the facts of the present case being quite different, the single Bench decision of this Court will not apply.
15. On behalf of the appellant, it has, however, been submitted that though the plaintiffs had filed the original sale-deeds in the court, subsequently they withdrew them on an undertaking to refile them. They, however, filed the certified copies (Ext. 2 to 2/C) in the Court which should not have been admitted in evidence by the learned trial court. The learned Counsel appearing on behalf of the respondents has, however, drawn my attention in this connection to the case of P.C. Pumshottama v. S. Perumal , in which it has been held that it is not open to the party in second appeal to object to the admissibility of document which was marked as exhibit before the trial court without any objection from such party. In this connection reliance was placed on the case of Bahgat Ram v. Khatu Ram AIR 1929 PC 110. It was the submission of the learned Counsel for the respondent that the original documents were produced before the court as admitted by the appellant. Subsequently, they were withdrawn and their certified copies were substituted. It was open to the appellant to object to the certified copies being admitted into the evidence at that very time. Since no such objection was taken, it will not be permissible to him to raise this question at this stage. The learned Counsel for the appellant has, however, drawn my attention to paragraph 14 of the judgment of the learned lower appellate court in which a reference has been made to the case of Roman Catholic v The State of Madras AIR 1966 SC 1457. In particular my attention has been drawn to the observation made by the learned lower appellate court in this paragraph that though in this decision the Supreme Court held that the copies of the original documents were not admissible but that observation related to the ordinary copies of the original documents and not to their certified copies. The learned Counsel for the appellant has submitted that the learned lower appellate court has wrongly mis-quoted this decision and has thereby come to a wrong conclusion.
16. A perusal of paragraph No. 8 of this decision, however, goes to show that the District Judge while coming to a conclusion had taken into consideration the certified copies to certain leases from the record of an old case (O. S. No. 124/1944) of the Court of Subordinate judge, Maduri, and marked these documents as exhibits without complying with the necessary provisions of law relating to the admissibility of the secondary evidence. In particular the following observation made by the Supreme Court in this paragraph may be usefully quoted “the originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence.”
17. From the facts of this case, it would appear that the originals of these documents wow never produced before the foamed District Judge who got them from the rewords of another old case and exhibited them in the present case. It was under this circumstance that it was held that those documents were not admissible in evidence. No doubt those documents were the certified copies and not the ordinary copies as held by the learned lower appellate court. However, that is not going to make much of difference inasmuch as, in the present case, toe original documents were produced before the court and their certified copies were marked as Exhibits without any objection from the appellant. Hence at this stage, the appellant cannot be heard objecting to the admissibility of these documents.
18. On behalf of the appellant, it has been submitted that after the purchase of the suit premises by respondent Nos. 2 to 5 through Exts. 2 to 2/C within the period from 7-7-1980 to 16-8-1980 there amendments were sought in the plaint, but of these amendments, only amendment Nos. 1 and 2 were incorported in the plaint in the year 1985. However, the third amendment which related to the amendment in the relief portion of the plaint, was not incorporated in the plaint, and therefore, in view of Order VI, Rule 18 of the Code the plaintiffs could not be permitted to amend the same after expiration of the period fixed for the purpose. In this connection, on behalf of the appellant two photo copies of the certified copies of the plaint in Title Suit No. 141 of 1978 have been filed. It appears that one of those copies was obtained on 26-9-1987 while the next copy was obtained on 1-2-1991. The appellant has pointed out that while in the certified copy of the plaint obtained on 26-9-1987 no amendment has been brought about in the relief portion of the plaint, in the subsequent copy obtained on 1-2-1991 the relief portion has been shown to be amended by stating “Co-plaintiff” instead as originally mentioned in it. It has been pointed out that this forgery was committed on behalf of the plaintiffs subsequent to obtaining of the certified copy by the present appellant on 26-9-1987. No doubt in the certified copy obtained on this date, there is no mention of the words “co-plaintiff” in the relief portion of the plaint, whereas, in the certified copy obtained subsequently, on 1-2-1991 the expression “Co” has been added to the word “plaintiff’ appearing at two places in the relief portion. It is not clear how and when this addition has been made in the relief portion and it is not within the scope of Order XLI, Rule 11 of the Code to investigate this matter. The amendment was ordered on 3-3-1982 and amendment Nos. 1 and 2 were carried out accordingly under the order of Additional Subordinate Judge, IIIrd Court, Patna dated 8-5-1985. Moreover, this alleged subsequent addition in the relief portion of the word “co-plaintiffs” in place of “plaintiff” is not of much consequence, as according to Section 13 of the General Clauses Act, the singular expression will also include the plural use of the expression. Though Section 13 relates to Central Act this principle may apply here also. Hence, I do not find that on this ground this second appeal is fit for admission. Moreover, on behalf of the respondents a reply to this petition has been filed on 5-4-1991. From this reply it would appear that so far as amendment Nos. 1 and 2 are concerned, admittedly they were allowed and in those amendments of the plaint, the word “Co-plaintiff” was used. If those amendments be treated as valid amendments, it will naturally follow that a corresponding amendment in the relief portion would follow and any omission in this regard may be treated to be the only formal omission. As such there was no occasion for the respondents to make any such alleged interpolation in the relief portion of the plaint.
Under the .facts and circumstances of this case, I feel inclined to agree with this submission of the learned Counsel for the respondents.
19. On behalf of the appellant, it has been submitted that since the word “Co-plaintiff” in the relief portion was not amended by the present respondents, respondent Nos. 2 to 5 cannot get any relief in the suit. It was further pointed out that on this ground it cannot be held that there was any relationship of the landlord and tenant between the appellant and these respondents. In support of his contention, the appellant has placed reliance on the case of Add. Mian v. Yageshwar Prasad AIR (38) 1951 Pat 550. In this case, in a suit for ejectment of the tenant, the relationship of the landlord and tenant was not established. It was, however, held that in a suit when the plaintiff failed to establish this relationship to prove his title the court had discretion under Order VII, Rule 7 of the Code to grant equitable relief for the ejectment on the basis of title. Thus, this decision does not help the appellants. Also in this connection, a reference may be made to the case of Mahabir Ram v. Sita Devi , according to which when the plaintiff’s title to the suit property was proved and the defendant was held to be only the licensee and not a tenant, the decree for ejectment on the basis of the title was held to be justified. Further in this connection a reference may be made to the case of Kashi Choudhary v. Mmtaaba Hass’an 1981 BLJ 679. This is a single Bench decision of this Court in which it was’ held that in any suit for ejectment of a tenant, if the defendant denied the relationship and the court comes to a conclusion that the defendant was a licensee, the court has power to grant relief of ejectment as a equitable relief Also reliance has been made to the case of Katihar Jute Mills v. Calcutta Match Works . This is a Bench decision of this Court in which it was held that Order VII, Rule 7 of the Code is an omnibus provision wide enough to cover all such reliefs as are consistent with the averment made in the plaint. In this connection a reference may also be made to the case of Raehubar Dayal Prasad v. Ram Ekbal Sah . This is a Bench decision of this Court by S.S. Sandnwalia, C.J. and S.K. Jha, J. In this decision a large number of cases were taken into consideration and’ it was held that even when no relationship of the landlord and tenant between the parties could be proved, but the plaintiff has proved this subsisting title as a true owner, and the defendant was in possession of the suit premises, not as a tenant but as a licensee; it was held that the plaintiff was entitled to a decree for eviction as equitable relief under Order VII, Rule 7 of the Code of Civil Procedure. In the present case, this question is hardly of any importance in as much as, respondent Nos. 2 to 5 has stepped into the shoes of the original plaintiff No. 1 and sought the same reliefs as claimed by aim. So far as the question of personal necessity is concerned, respondent Nos. 2 to 5 have contended that they have purchased, tab suit property for their personal use and occupation and they require the suit premises as such. It was further submitted that the personal requirement of original plaintiff No. 1 was substituted by the personal requirement of respondent Nos. 2 to 5 have therefore, when these respondents were impleaded as the co-plaintiff before the trial court and when both the courts below held their claim for personal requirement as bona fide the judgment will not call for any interference in second appeal.
From these detailed discussions made above, it appears that this second appeal is not fit for admission since no substantial question of law arises out of the judgments passed by the two courts below. The appeal is accordingly dismissed.