MADAN, J. - (1.) THIS second appeal arises out of judgment dt. 21. 3. 2001 of ADJ No. 2 Kota in CRA No. 17/2000 affirming the decree dt. 21. 1. 99 of the Civil Judge (JD) South Kota in Civil Suit No. 763/92.
(2.) THE facts, shorn in details are that Leeladhar Agrawal Advocate (respondent No. 1) (plaintiff) instituted a suit for eviction of shop situated at Main Road Kota Junction on the grounds of (a) bonafide need, (b) sub tenancy and (c) public nuisance. THE suit shop was admittedly rented out at Rs. 500/- per month to the tenant appellant (Shakuntala Devi ). Except the tenancy and monthly rent, all plaint averments as to the aforesaid trioka grounds of eviction were denied by the tenant in her written statement. Nine issues were framed on the basis of the pleadings by the trial Court. To prove his case, plaintiff examined himself beside other witnesses namely; Mohanlal (PW2), Dalip Sharma (PW3), Om Singh (PW 4) and Pyara Singh (PW 5) and got seven documents exhibited including Rent Note, family settlement, IT return, notice, postal receipt, A. D. receipt, (Ex. 1a to Ex. 7), whereas defendant (tenant) examined herself so also Ramkumar (DW2), Jagdish Prasad (DW 3) and Devdutt (PW 4) and got only two documents (invitation card & photo) exhibited. THE trial Court decided issue No. 4 as to the sub tenancy against the landlord (plaintiff ). Issue Nos. 5,6, & 8 - burden of proof of which was on the defendant-were decided against the tenant as she failed to prove the same. Thus, on the basis of findings arrived at on the Issue Nos. 1,2,3,8 & 9 in favour of the plaintiff, the trial Court decreed the suit for eviction of the defendant tenant only on the grounds of bonafide need, comparative hardship, partial eviction and nuisance. Against which, the tenant preferred an appeal before the first appellate Court but the first appeal was also dismissed affirming the decree of eviction by the impugned judgment. Hence, this second appeal against the concurrent findings. Though the learned counsel for the appellant proposed in memo of second appeal as many as 14 questions describing them as substantial one being involved but on the other hand, learned counsel for the respondent vociferously contended that the questions proposed by the appellant in his appeal are neither involved nor they are substantial in the light of the provisions of Sec. 100 CPC inasmuch as in view of the concurrent findings of fact of both the Courts below, this appeal deserves to be dismissed having involved no substantial question of law muchless any question of law with a view to invoke jurisdiction u/sec. 100 CPC. At the threshold, I may point out that the memo of second appeal suffer from a serious infirmity. The substantial questions of law proposed in the memo of second appeal are not properly formulated and they are, as if, grounds, urged or incorporated. Having heard the learned counsel for the parties and considered their rival contentions and further carefully analysed the concurrent findings of facts arrived at by two courts below, though I reframe following questions for consideration while hearing this second appeal but at this juncture, I restrain from saying as to whether these questions of law are substantial, or are involved for admitting this second appeal within the purview of Sec. 100 CPC. (1) Whether the suit shop is an HUF property and the plaintiff being coparcener could institute suit for eviction on the ground of personal bonafide need of himself or whether in that suit, personal need of other coparcener as to the suit shop could be considered or not? (2) Whether the plaintiff is not an owner of the suit shop being HUF property or being its receiver of the rent for the suit shop could bring the suit against the tenant on all the grounds set forth in Sec. 13 (1) of the Act except on the ground of bonafide need u/sec. 13 (1) (h)? (3) Whether the findings of fact concurrently arrived at by the Courts below either on issue of comparative hardship of both the parties or bonafide need of the plaintiff are based on consideration of the case beyond pleading, proof or evidence or without considering admissibility of document (Exa2) which pertained to the partial partition? (4) Whether the plaintiff has brought the eviction suit only for a part of the rented shop as pleaded in the plaint under description of suit property which is different than described in rent note (Ex. A. 1)? (5) Whether failure on the part of plaintiff to reply contents of application seeking amendment allowed to the written statement does mean failure to rebut the defendant's evidence as to the factum allowed to be amended under Order 6 Rule 17 CPC and whether this significant aspect is completely missing of consideration in the impugned concurrent findings of fact on comparative hardship and bonafide need? (6) Whether first appellate Court failed to consider all grounds taken in memo of first appeal and argued during hearing by a complete go- bye and whether it resulted in miscarriage of justice warranting interference in exercise of jurisdiction u/sec. 100 CPC? First of all, I must have a careful look and analysis of the decisions cited at the bar as to the scope of interference by this Court in exercise of its jurisdiction u/sec. 100 CPC and the application of the dictum of law laid down therein to the facts of the present case.
(3.) MR. Siddique for the appellant cited decisions in Kondiba Dagadu Kadam vs. Savitri Sopan Gujar (1), Santosh Hazari vs. Purshottam Tiwari (2), M/s. K. C. Mathew & Sons vs. A. Sulalkha Beevi (3) and Nirmala vs. Hari Singh In Nirmala vs. Hari Singh (supra) while considering Order 23, R. 1 (3) CPC, in a case of withdrawal of suit but subsequent filing of fresh suit, the Himachal Pradesh High Court held that fresh suit is not barred if suit is based on a different cause of action though in respect of same property. On another question as to the inclusion of affidavit in Sec. 3 of the Evidence Act, it has been held that affidavits are not included as evidence unless law specifically permits for proof of anything by affidavit. As regards interference by the High Court u/sec. 100 CPC, it has been held that findings of fact can be interfered with only if relevant material is no considered or a finding is recorded on inadmissible evidence. In M/s. K. C. Mathew & Sons (supra) the question whether tenant is entitled to protection of Land Reforms Act was held by the Apex Court as not substantial question of law, which is that question which has to be resolved for deciding the main issues involved in suit and the impugned judgment was set aside merely because it was bereft of reference to substantial question of law. ;