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SBCSA No. 252/2008
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
S.B. Civil Second Appeal No. 252/08
Ramchandra @ Sriram & Anr. Vs. Balkishan & Ors.
Date of Judgment : 22/10/2009
PRESENT
HON'BLE MR. JUSTICE H.R.PANWAR
Mr. Aklavya Bhansali for the appellants.
Mr. Rajesh Joshi for the respondents.
BY THE COURT
This civil second appeal under Section 22 of the
Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for
short ‘the Act of 1950’ hereinafter) r/w Section 100 of Code of
Civil Procedure (for short ‘the Code’ hereinafter) is directed
against the judgment and decree dated 17.5.2008 passed by
Additional District Judge No.2, Jodhpur (for short ‘the first
appellate court’ hereinafter) in Civil Appeal Decree No. 108/07
whereby the appeal filed by the appellants defendants against
the judgment and decree dated 23.11.2004 passed by Additional
Civil Judge (Jr. Div.) No.2, Jodhpur (for short ‘the trial court’
hereinafter) in Civil Original Suit No.34/01, was dismissed.
During the pendency of the appeal, an application
being I.A. No. 12861/08 came to be filed by the appellants
defendants under Order 41 Rule 27 r/w Section 151 of the Code
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seeking to take on record the certified copy of the Voter List .
I have heard learned counsel for the parties on the
application under Order 41 Rule 27 r/w Section 151 of the Code
as also on the merit of the appeal. Carefully gone through the
judgment and decree of the trial court as well as of the first
appellate court.
Learned counsel appearing for the appellants
contended that the certified copy of the Voter List issued by the
Election Officer shows the names of Vijay Kumar and
Ramchandra to whom the respondent plaintiff alleged to be sub-
tenant or to whom the rented premises have otherwise been
parted with the possession by the respondent No.2 Prakash.
Learned counsel for the appellant-applicants contended that the
Voter List annexed with the application showing names of Vijay
Kumar and Ramchandra & their his family members would make
out a case that they had been residing since long and therefore,
he submits that the application under Order 41 Rule 27 r/w
Section 151 of the Code be considered and decided at the time
of hearing of the appeal on merit. Learned counsel for the
appellant-applicants has relied on a decision of Hon’ble Supreme
Court in North Eastern Railway Administration, Gorakhpur Vs.
Bhagwan Das (Dead) By LRs. (2008) 8 SCC, 511 wherein
Hon’ble Supreme Court while considering the provisions of Order
41 Rule 27 and Sections 100 and 107 of the Code held that the
High Court was bound to consider the application under Order 41
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Rule 27 CPC before taking up the appeal on merits. The question
whether looking into the documents, sought to be filed as
additional evidence, would be necessary to pronounce judgment
in a more satisfactory manner, has to be considered by the Court
at the time of hearing of the appeal on merits. The appellate
court has the power to allow additional evidence not only if it
requires such evidence “to enable it to pronounce judgment” but
also for “any other substantial cause”. Though the general rule is
that ordinarily the appellate court should not travel outside the
record of the lower court and additional evidence, whether oral
or documentary is not admitted, but Section 107 CPC which
carves out an exception to the general rule, enables an appellate
court to take additional evidence or to require such evidence to
be taken subject to such conditions and limitations as may be
prescribed. These conditions are prescribed under Order 41 Rule
27 CPC.
Learned counsel appearing for the respondent
plaintiff opposed the application. Learned counsel appearing for
the respondent plaintiff has relied on a decision of Hon’ble
Supreme Court in Basayya I. Mathad Vs. Rudrayya S. Mathad &
Ors. AIR 2008 SC 1108 wherein Hon’ble Supreme Court held
that it is clear that parties to the lis are not entitled to produce
additional evidence as of course or routine but must satisfy the
conditions stated in sub-clauses (a) & (aa). In that case, the
condition stated in Sub-clause (a) and (aa) has not been
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resorted to neither by the party concerned nor adhered those
principles by the High Court and therefore, the finding based on
documents produced therein by the High court at the time of
argument was held to be dehors to Rule 27 of the Code and
therefore, it was unsustainable in the eye of law. It was held by
the Apex Court that in fact, sub-clause (2) of Rule 27 mandates
that wherever additional evidence is allowed to be produced by
an Appellate Court, it shall record the reason for its admission. It
is needless to mention that the High Court neither followed those
conditions for production of additional evidence nor recorded the
reason for basing reliance on the same.
In Haryana State Industrial Development Corporation
Vs. M/s Cork Manufacturing Co., AIR 2008 SC 56, the Hon’ble
Supreme Court held that Order 41 Rule 27 of the CPC does not
empower an appellate court to accept additional evidence on the
ground that such evidence could not be produced or filed either
before the trial Court or before the first appellate Court due to
inadvertence or lack of proper legal advice. Neither can it be said
that lack of proper legal advice or inadvertence to produce the
legal notice in evidence is a ground to hold that there was
substantial cause for acceptance of the additional evidence.
Similarly, non-realization of the importance of the documents
due to inadvertence or lack of proper legal advice also would not
bring the case within the expression “other substantial cause” in
Order 41 Rule 27 of the C.P.C. and on those premises, the Apex
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Court held that the legal notice could not be admitted as
additional evidence.
Order 41 Rule 27 of the Code provides for production
of additional evidence in Appellate Court which is reproduced
hereunder:-
“O.41 R. 27. Production of additional evidence in Appellate
Court.- (1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or documentary, in
the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred
has refused to admit evidence which ought to have been
admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due diligence,
such evidence was not within his knowledge or could not, after
the exercise of due diligence, be produced by him at the time
when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause,
the Appellate Court may allow such evidence or document to be
produced, or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by
an Appellate Court, the Court shall record the reason for its
admission.”
In the instant case, neither the document sought to
be taken on record is necessary for pronouncement of judgment
nor for any other substantial cause, when indisputably the
appellant-applicant failed to satisfy the requirement of Rule 27
(a) and (aa). It is not the case of the appellant-applicants that
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the Court from whose decree the appeal is preferred has refused
to admit evidence, since no such efforts were made by the
appellant-applicants to produce additional evidence before the
first appellate court. So far as seeking to produced additional
evidence by producing Voter List, it is not the case of the
appellant-applicants that notwithstanding the exercise of due
diligence, such document was not within their knowledge or
could not, after the exercise of due diligence, be produced by
them at the time when the decree appealed against was passed.
In the circumstances, therefore, the decision relied on by learned
counsel for the appellant-applicants is of no help to them. In
this view of the matter, in my view, the applicant-appellants
failed to make out a case admitting the document as additional
evidence at the stage of second appeal and therefore, the
application under Order 41 Rule 27 r/w Section 151 of the Code
being IA No.12861/08 is hereby dismissed.
Learned counsel for the appellants arguing on the
merit of the appeal contended that the burden to prove the issue
of sub-letting / otherwise parting with the possession of rented
premises was wrongly casted on the appellant defendant tenant
by both the courts below. It is further contended that the
respondent plaintiff failed to plead and make out a case of sub-
letting or otherwise parting with the possession of the premises
in question. It was also contended that initial onus is on the
landlord respondent plaintiff to establish the factum of sub-
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letting or otherwise parting with the possession of the premises
which the respondent plaintiff failed to discharge. Learned
counsel for the appellants has relied on decisions of Hon’ble
Supreme Court in Boodireddy Chandraiah and Ors. Vs. Arigela
Laxmi and Anr., 2008 DNJ (SC) 1009, in State Bank of India and
Ors. Vs. S.N.Goyal, AIR 2008 SC 2594, in Kala and another Vs.
Madho Parshad Vaidya, AIR 1998 SC 2773 and a decision of this
Court in Shakuntala Devi Vs. Leeladhar Agrawal, 2001 (5)
Western Law Cases (Raj.), 787.
In Boodireddy Chandraiah and Ors. Vs. Arigela Laxmi
and Anr. (supra) while considering the expression “substantial
question of law”, the Hon’ble Supreme Court held that to be
“substantial” a question of law must be debatable, not previously
settled by law of the land or a binding precedent, and must have
a material bearing on the decision of the case, if answered either
way, insofar as the rights of the parties before it are concerned.
To be a question of law “involving in the case” there must be
first a foundation for it laid in the pleadings and the question
should emerge from the sustainable findings of fact arrived at by
Court of facts and it must be necessary to decide that question
of law for a just and proper decision of the case. An entirely 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. It will, therefore, depend on the facts and circumstances
of each case whether a question of law is a substantial one and
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involved in the case, or not; the paramount overall consideration
being the need for striking a judicious balance between the
indispensable obligation to do justice at all stages and impelling
necessity of avoiding prolongation in the life of any lis.
In State Bank of India and Ors. Vs. S.N.Goyal
(supra), while considering the word “substantial”, the Hon’ble
Supreme Court held that the word ‘substantial’ prefixed to
‘question of law’ does not refer to the stakes involved in the
case, nor intended to refer only to questions of law of general
importance, but refers to impact or effect of the question of law
on the decision in the lis between the parties. ‘Substantial
questions of law’ means not only substantial questions of law of
general importance, but also substantial question of law arising
in a case as between the parties.
In Kala and another Vs. Madho Parshad Vaidya
(supra) while considering the provision of Himachal Pradesh
Urban Rent Control Act, Section 14 (2) (ii) eviction on the
ground of sub-letting, the Apex Court held that initial onus is on
landlord to prove sub-letting.
This Court in Shakuntala Devi Vs. Leeladhar Agrawal
(supra), held that if there is conflict of oral evidence of the
parties on any issue and the decision hinges upon the credibility
of witnesses, then only upon a peculiar situation as to the
evidence of a particular witness having escaped notice of the trial
Court or only if there is a sufficient balance of improbability to
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displace his opinion the first appellate Court may interfere with
finding of the trial Court on a question of fact.
Learned counsel appearing for the respondent
plaintiff supported the concurrent finding of fact recorded by the
trial court as well as by the first appellate court and submits that
this appeal do not involve any substantial question of law.
On careful perusal of the pleadings of the parties as
also the evidence led by the parties and the judgment and
decree of the trial court as well as of the first appellate court, in
my view, the finding of facts recorded by the Court of fact i.e.
the trial court as also the first appellate court on the issue No.1
is concurrent finding of fact based on sound and proper
appreciation of the evidence. Issue No.1 relates to as to whether
the defendant tenant Prakash S/o Vasudev has neither tendered
nor paid the rent for the period from January 2000 to December
2000 for 12 months and thus committed default in payment of
monthly rent for the continuous period of 12 months. So far as
issue No.2 is concerned, the issue No.2 relates to otherwise
parting with the possession of first floor of the rented premises
in favour of the defendant appellant No.1 Ramchandra @ Sriram.
Though the issue was decided by the trial court in favour of the
defendant Sriram but the first appellate court on sound and
proper reappreciation of the evidence came to the conclusion
that the original tenant was Shri Vasudev and on his death his
son Prakash became the tenant as has been established from the
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evidence on record and the tenant Prakash has gone to Dubai
and parted with the possession of the suit premises on the first
floor of the rented premises to the appellant defendant No.1
Ramchandra @ Sriram without the consent of respondent
plaintiff. So far as finding on issue No.3 is concerned, the issue
relates as to whether the ground floor of the rented premises
has been sub-letted to the appellant defendant No.2 Vijay Kumar
@ Vijay or otherwise parted with possession without consent of
the respondent plaintiff and both the courts below concurrently
found that Prakash defendant No.1 in the suit who was legal
representative of original tenant Vasudev and became tenant on
the death of Vasudev has sub-letted and parted with the
possession of the ground floor of the rented premises without
the consent of respondent plaintiff. The respondent plaintiff filed
the suit against tenant Prakash defendant No.1 as also against
both the appellants namely Ramchandra @ Sriram and Vijay
Kumar @ Vijay on the ground that the defendant tenant Prakash
has neither paid nor tendered monthly rent to the respondent
plaintiff for a continuous period of 12 months i.e. from January
2000 to December 2000 and that tenant Prakash has gone to
Dubai and sub-letted the ground floor of rented premises in
favour of appellant defendant No.2 Vijay Kumar @ Vijay or
otherwise parted with the possession of the ground floor of the
rented premises without the consent of respondent plaintiff and
tenant defendant Prakash otherwise parted with the possession
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of the first floor of the rented premises in favour of the appellant
No.1 defendant Ramchandra @ Sriram. The pleadings and
evidence produced by the respondent plaintiff is consistent. The
tenant defendant Prakash even after service of notice failed to
appear and contest the suit and remained ex-parte and ex-parte
proceedings were taken against him, even the appellant
defendants also did not produce him as a witness in evidence. In
the written statement filed by appellants defendants they came
with a case that the rented premises subject matter of the suit
was taken on rent by Vasudev brother of the defendant No.2
Sriram. The original tenant Vasudev said to be expired in the
year 1981 and thereafter his son Prakash continued to be
tenant. So far as the appellant No.2 Vijay Kumar @ Vijay, the
defendant No.3 in the suit came with a plea that he has family
relation with the original tenant Vasudev and has been residing
in the rented premises subject matter of the suit with the
consent of original tenant. At any rate, it is not the case of the
appellant defendant No.2 Vijay Kumar that he has been residing
in the rented premises at ground floor with the consent of the
respondent plaintiff landlord. Thus, it is admitted position that
the possession of part of rented premises i.e. ground floor has
been otherwise parted with in favour of Vijay Kumar by the
tenant without consent of the plaintiff landlord. Thus, there is
concurrent finding of fact so far as parting with the possession of
part of rented premises subject matter of the suit without the
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consent of the respondent landlord. In the instant case, the
respondent plaintiff landlord has discharged the initial onus to
prove that the first floor of the rented premises has been
subletted or otherwise parted with the possession in favour of
defendant No.2 who is appellant No.1 herein namely
Ramchandra @ Sriram and ground floor in favour of appellant
No.2 Vijay Kumar @ Vijay original defendant No.3 without the
consent of respondent landlord. Even the appellants defendants
admitted this fact that the defendant No.3 Vijay Kumar @ Vijay
has been residing in the rented premises subject matter of the
suit in exclusive possession. The respondent plaintiff has
succeeded to prove the issue of sub-letting and otherwise
parting with the possession of the rented premises as also
default in payment of rent. In this view of the matter, the
decision relied on by learned counsel for the appellants turn on
their own facts and are of no help to them. On close scrutiny of
the judgment and decree of the trial court as well as of the first
appellate court, in my view, this appeal does not involve any
substantial question of law and therefore, it is liable to be
dismissed.
Consequently, I do not find any merit in the instant
second appeal and therefore, it is dismissed. Interim order
stands vacated and stay petition also stands dismissed.
(H.R.PANWAR), J.
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