Mohd. Yaqoob Mir, J.@mdashParties have been litigating for last nearly three decades. The suit filed in the year 1982 culminated in judgment &
decree on 23-04-2002. The Civil first appeal against the judgment & decree stand dismissed on 10-07-2009. Hence the second appeal.
2. Corner shop alongside main road in Parade Ground opposite Government library belonged to Vinod Kumar (whose legal heirs are
Respondents No. 1 to 3). Said Vinod Kumar had leased the said shop for a period of 11 months on a monthly rent of Rs. 75/in favour of Shiv
Shankar and Raj/Dulari with effect from 16.6.1967. Later on rent was enhanced to Rs. 95/. The rent deed was executed on 20.6.1967. It is Shiv
Shankar who started the business of electric hardware in the said shop under the name and style of ""Shiv Electrical and Hardware store"". He did
not continue with the said business so engaged himself in running a Dhaba in Transport Yard, so stopped using the leased premises, whereas Raj
Dulari never used the said premises.
3. Vinod Kumar filed a suit for ejectment and recovery of possession on the ground that the shop had remained closed for 14 consecutive months
and thus no business was being conducted therein. Failure to use the shop for said period disentitled the tenants from any protection against the
eviction in terms of Section 11 of the J&K Houses and Shops Rent Control Act, 1966. Secondly said Vinod Kumar claimed personal necessity
and bonafide requirement of the shop to be used as a garage as his old father, namely, Prem Nath, an angina patient, owned a car bearing No.
JKA-5075, their house was accessible by a narrow approach through a lane, so there was no parking space which forced them to use the space in
the house of Lala Chet Ram Chopra in Mohalla Rehari. Said Vinod Kumar also purchased another vehicle prior to his death. Finally after the
death of the male members, the family consisted of ailing mother of Vinod Kumar, his widow, a daughter and a minor son. With the death of two
male members, the personal necessity became imperative and pressing as they were unable to park their two cars for want of space.
4. On the ground of personal requirement, continuous non-use of the shop by the Defendants, their refusal to vacate the premises and to pay the
arrears of rent, suit came to be filed.
5. Shiv Shankar and Raj Dulari (Defendants in the suit) contended that with effect from 1975 Hari Krishan became the sole proprietor of the Shiv
Electrical and Hardware Store and it is he who is paying rent regularly to the landlord, further added that the shop has never remained closed.
During the pendency of the suit, said Hari Krishan Sharma was arrayed as a party/Defendant.
6. Finally on the basis of respective pleadings of the parties, trial court framed as many as 9(nine) issues, same are reproduced herein-below:
(1) Whether the suit is bad for non-joinder of parties?(OPD)
(2) Whether the suit in the present form is not maintainable as it does not disclose the date of accrual of cause of action?(OPD)
(3) Whether the suit is not maintainable for want of notice?(OPD)
(4) Whether Hari Krishan Sharma is tenant in the suit shop, if so what is its effect on the suit? (OPD)
(5) Whether the suit has not been filed by the proper person as the shop in dispute is owned and possessed on the name of Plaintiffs father Pran
Nath Malhotra, if so, what is its effect on the suit?(OPD)
(6) Whether the Defendant has not conducted any business in the suit shop for 14 months prior to the institution of the suit ? (OPP)
(7) Whether the suit shop is required by the Plaintiffs who owned 2 cars for personal necessity and bonafide requirement for being used as garage
and with the death of two male members the same has become urgent, pressing and un-avoidable and their necessity is comparatively more than
that of the Defendants?(OPP)
(8) Whether the need of the Plaintiffs can be met by partial eviction? (OPP)
(9) To what relief the Plaintiff is entitled to? (OPP)
7. Learned trial court while returning findings issue-wise has concluded that the Plaintiffs have proved the case in its totality so held them entitled to
the recovery of possession through ejectment. Aggrieved thereof, Hari Krishan Sharma (D3), preferred Civil First Appeal, which was dismissed
by the Court of Additional District Judge, Jammu vide judgment dated 10.7.2009.
8. Aggrieved thereof, instant Civil 2nd Appeal has been filed wherein Hari Krishan Sharma (Defendant No. 3) is the Appellant, Respondents No.
1 to 3 are the legal heirs of Vinod Kumar (landlord/Plaintiff), Respondents No. 5 to 8 are the legal heirs of Shiv Shankar (D-2) and Respondent
No. 4 (Raj Dulari) has expired whose legal heirs are Respondents No. 4(a), 4(b) and 4(c).
9. The learned appellate court has on re-appreciation of the evidence and after properly analyzing the findings recorded by the trial court affirmed
the judgment and decree of the trial court.
10. In the memo of appeal following questions have been formulated as substantial questions of law:
(a) Whether a decree for ejectment can be passed against a person who is not being admitted tenant or sub tenant while the statutory provisions
ordained that such a decree can be passed only against a tenant or sub tenant impleaded in the suit.
(b) Whether a person who is not being admitted to be tenant or sub tenant of the rented premises can be stated to be bound by a decree passed
against the erstwhile tenant despite specific denial by the Plaintiff that the person who claims to be in possession of the suit shop is not their tenant
but has come forward to delay the disposal of the suit.
(c) Whether entries made on the back of the rent deed in connection with payment of rent tantamounts to voluntary receipt of rent by the Landlord
from the person who tenders rent and such receipt of rent can create the relationship of landlord and tenant if such person is in possession of shop.
(d) Whether in a situation where a decree is passed against the tenant can it be stated that the said decree is also binding on a person who is in
possession of the suit shop on the ground that he is also bound by the said decree notwithstanding the fact that the Plaintiff never claimed such
person to be his tenant or sub tenant of the suit shop.
(e) Whether the courts below could ignore the fact that the person for whose necessity to park the car suit had been instituted was no longer alive
at the time of passing of the decree and the element of personal necessity had come to an end because of subsequent events during the pendency
of the suit.
(f) Whether despite the fact that a Defendant chooses it proper not to contest the suit yet it is obligatory for the Plaintiff to prove the relevant
grounds on which he has brought the suit and no decree can be passed if such a ground is not proved.
(g) Whether a tenancy can be stated to have been created because of possession and payment of rent by the person who had paid the rent to the
landlord.
(h) Whether without ascertainment of the status of the Appellant as tenant or the sub tenant could decree for ejectment be passed as against the
Appellant by the courts below despite there being denial of such status on the part of Plaintiffs.
11. Now the question is as to whether these questions are substantial questions of law or not or as to whether on perusal of record any other
substantial question of law arises for adjudication. It is only when a substantial question of law, to the satisfaction of the Court arises, only then an
appeal is to be admitted and to be heard on the questions as shall be formulated. The formulation of substantial question of law is not a routine
matter. The underlying object of maintaining an appeal on the substantial question of law is to cut short the un-necessary protracted litigative
process so as to put an end to the process without wasting time.
12. For proper adjudication, it shall be quite relevant to refer as to what is the law laid down by the Hon'ble Apex Court. From the judgment
rendered in case Veerayee Ammal Vs. Seeni Ammal, para 7 is quoted as under:
7. Section 100 of the CPC (hereinafter referred to as ""the Code"") was amended by amending Act 104 of 1976 making it obligatory upon the High
Court to entertain the second appeal only if it was satisfied that the case involved substantial question of law. Such question of law has to be
precisely stated in the memorandum of appeal and formulated by the High Court in its judgment, for decision. The appeal can be heard only on the
question so formulated, giving liberty to the Respondent to argue that the case before the High court did not involve any such question. The
amending Act was introduced on the basis of various Law Commission reports recommending making of appropriate provisions in the CPC which
were intended to minimize the litigation, to give the litigant a fair trial in accordance with the accepted principles of natural justice, to expedite the
disposal of civil suits and proceedings so that justice is not delayed, to avoid complicated procedure, to ensure fair deal to the poor sections of the
community and restrict the second appeals only on such questions which are certified by the Courts to be substantial question of law. We have
noticed with distress that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by
some Judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appear to have been
frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal.
This Court in Paras Nath Thakur v. Mohani Dasi held AIR 1205 3:
It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, on second appeal,
cannot go into questions of fact, however, erroneous the findings of fact recorded by the courts of fact may be. It is not necessary to cite those
decisions. Indeed, the learned Counsel for the Plaintiff-Respondents did not and could not contend that the High Court was competent to go
behind the finds of fact concurrently recorded by the two courts of fact.
13. In para 14 of the judgment Dnyanoba Bhaurao Shemade Vs. Maroti Bhaurao Marnor, , Hon'ble Apex Court has held:
...Whether a finding of fact reached by courts below is against the weight of evidence or not is a question which will remain in the realm of
appreciation of evidence and does not project any question of law, much less, any substantial question of law, which can enable the High Court in
the second appeal to upset such a finding of fact.
14. It shall be quite apt to quote following portion from para 14 of the judgment Santosh Hazari v. Purushottam Tiwari (Dead) AIR 2001 SC 965:
...It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and 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.
15. The Hon'ble Apex Court in para 5 of the judgment Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, has held:
...The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower
appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements
made by the apex Court, or was based upon inadmissible evidence or arrived at without evidence.
16. It shall be quite apt to quote para 10 of the judgment Navaneethammal v. Arjun Chetty AIR 1996 SC 3521:
10. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court u/s 100 CPC
must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace
the findings of the lower Courts.
17. Keeping in view the principles as have been laid down and while considering the submissions as made by the learned Counsel for the parties,
none of the questions formulated in the memo of appeal constitute substantial question of law.
18. So far as formulated question No. (a) is concerned, the question of Hari Krishan (Appellant) being sub-tenant is out of question because both
the trial court and appellate court have in categoric terms concluded that there was no contract between the Appellant and the landlord. His
impleadment as party/Defendant was only on the motion made by the Defendants/tenants. By no stretch of imagination Appellant could be termed
to be a sub-tenant nor has he proved it during the course of the trial that he was inducted by the landlord. The question in-effect is in the realm of
question of fact and there is concurrent finding against him. Now it would not be open to re-appreciate the evidence when nothing erroneous is
forthcoming from the findings as recorded by the trial court as well as the 1st appellate court.
19. So far as question No. (b) is concerned, same is directly in conflict with question No. (a) i.e. Appellants claims that when he was not a tenant
or sub-tenant, there could be no order of ejectment. Firstly Appellant tried to take advantage of being a sub-tenant but while failing on such count
has turned round to say that there could be no order of ejectment as against him as not being the tenant but his position of being in possession
inducted by the tenants without the authority from the landlord, has been taken note of and when he is in possession without authority, recovery of
possession is the offshoot of the eviction and such question by no means, in law, can be termed to be a substantial question of law.
20. So far as question No. (c) is concerned, evidence has been led to show that landlord has never accepted the Appellant as his tenant. It is a
finding of fact recorded by the courts below that the Appellant does not have any landlord -tenant relationship with the owners, again a finding of
fact, cannot be altered, neither it is shown that appreciation of evidence has been erroneous, so it can't be termed to be a substantial question of
law.
21. Question No. (d) has already been dealt with while dealing with question No. (b).
22. Question No. (e) again is a question of fact. Both trial court as well as appellate court in categoric terms have dealt with the issue and they
have analyzed as to how personal necessity remained available. The Respondents No. 1 to 3 (Plaintiffs) require the space for parking their vehicle
and this issue has been specifically dealt with on the basis of evidence, so no question of law what to speak of substantial question of law emerges
for determination.
23. Question No. (f) is imaginary having no relevance/because the Plaintiffs have contested the suit and have established the requirement as well as
tenancy relationship with Shiv Shankar and Raj Dulari.
24. Question (g) again a repetition on the point of Appellant holding possession and the payment of rent to the landlord, when this issue is a factual
issue and factually it has been proved that the Appellant was never admitted as a tenant.
25. Question No. (h) again a repetition. Question of the Appellant being a tenant or sub-tenant has been clearly dealt with and the Appellant has
failed to show during the trial that he was tenant or sub-tenant.
26. The learned trial court has issue-wise dealt with the judgment of the trial court and has on issue-wise basis recorded the findings and finally has
affirmed the view taken by the trial court.
27. In the context of law and the principle as has been laid down, substantial question of law, so as to maintain the civil second appeal, has to be
formulated. Formulation of the substantial question of law is not an exercise in futility. It is an exercise so as to ward off un-necessary protraction in
litigation. Litigative process after all has to be result/oriented. Simply to say that there is substantial question of law and then to admit the appeal is
impermissible. The underlying object of formulating the substantial question of law is also to ensure that the decree holder is in a position to reap
the fruits of his decree within some time.
28. The upshot is that no substantial question of law emerges so as to persuade the Court to admit the 2nd appeal for adjudication. Appeal, as
such, being without merit is dismissed along with connected CMP(s). Decree sheet be prepared accordingly.
29. Copy of the judgment and decree be send to the trial court as well as to the appellate court along with their respective records.
