- (1.) THE present second appeal filed under Section 100 of the C.P.C. arises out of the judgment and decree dated 4.2.2010 passed by the Additional District Judge(Fast Track) No.7, Jaipur City, Jaipur, (hereinafter referred to as the Appellate Court) in Appeal No. 47/2006, whereby the Appellate Court set-aside the judgment and decree dated 29.1.2001, passed by the Civil Judge(Sr.Div.) No.1, Jaipur City, Jaipur(hereinafter referred to as the trial court) in Civil Suit No. 284/1995.
(2.) THE short facts giving rise to the present appeal are that the respondent-plaintiff filed the suit being No. 284/1995, before the trial court seeking eviction of the appellant-defendant from the suit premises under the provisions contained in the Rajasthan Premises(Control of Rent and Eviction)Act, 1950, (hereinafter referred to as the said Act, mainly on the ground of bonafide necessity as contemplated under Section 13(h) of the said Act. The said suit was resisted by the appellant-defendant by filing the written statement denying the allegations made in the plaint. The trial court after framing the issues and considering the evidence on record, dismissed the suit of the respondent-plaintiff vide the judgment and decree dated 29.1.2001. Being aggrieved by the same, the respondent-plaintiff filed the appeal, which has been allowed by the Appellate Court vide the impugned order dated 4.2.2010. It has been submitted by learned counsel Dr. P.C. Jain for the appellant that the Appellate Court failed to consider the issue of comparative hardship as required under the provisions contained in Section 14(2) of the said Act and also the aspect of partial eviction. According to him the findings arrived at by the Appellate Court, being perverse, the same deserve to be considered as substantial question of law in the present appeal. Taking the Court to the evidence of P.W.1, the learned counsel Dr.Jain submitted that the P.W. 1 Umraomal Choria, who had filed the plaint on behalf of the respondent-plaintiff did not have the authority to file the suit. He also submitted that the appellant is in possession of a very small shop and requirement of the respondent society, which is running the hospital in the basement and in the first and second floor of the building, where the suit shop is situated, is not going to be satisfied. The learned senior counsel Mr. G.K. Garg, however, supporting the judgment and decree passed by the Appellate Court has submitted that since no substantial question of law is involved in the appeal, the appeal deserves to be dismissed. He also submitted that the Appellate Court has fully appreciated the evidence in the right perspective, which does not call for any interference of this Court. At the out-set, it is needless to state that the High Court could entertain the appeal under Section 100 C.P.C., only if the appeal involves substantial question of law. What is substantial question of law, has been considered by the Apex Court in the latest judgment in the case of BOODIREDDY CHANDRAIAH AND OTHERS V. ARIGELA LAXMI AND ANOTHER, AIR 2008 S.C. 380 , in which it has been held as under:- 11. 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, in so far as the rights of the parties before it are concerned. To be a questing 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 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 Rajappa Hanamantha Ranoji v. Mahadev Channabasappa and Ors. AIR 2000 SC 2108, the Apex Court held that "It is not permissible for the High Court to decide the Second Appeal by re-appreciating the evidence as if it was deciding the First Appeal unless it comes to the conclusion that the findings recorded by the court below were perverse."
(3.) IN P. Chandrasekharan and Ors. V. S. Kanakarajan and Ors. AIR 2007 SC 2306, the Apex Court reiterated the principle that "Interference in second appeal is permissible only when the findings are based on misreading of evidence or are so perverse that no person of ordinary prudence could take the said view. More so, the Court must be conscious that intervention is permissible provided the case involves a substantial question of law which is altogether different from the question of law. Interpretation of a document which goes to the root of title of a party may give rise to substantial question of law." Whether the findings recorded by the courts below are perverse or not would depend upon the facts of each case. However, what findings could be said to be perverse findings have been considered by the Apex Court in case of Dinesh Kumar Vs. Yusuf Ali, AIR 2010 SC 2679. It has been held in para 25 of the said decision that "The law on the subject emerges to the effect that Second Appeal under Section 100 CPC is maintainable basically on a substantial question of law and not on facts. However, if the High Court comes to the conclusion that the evidence on record recorded by the courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to re-appreciate the evidence. The landlord is the best Judge of his need, however, it should be real, genuine and the need may not be a pretext to evict the tenant only for increasing the rent." In view of the above stated legal position let us examine as to whether the findings recorded by the Appellate Court are perverse with regard to the bonafide requirement of the respondent. It is not disputed that the respondent is a Society running a charitable hospital in the premises, where the suit shop is situated. The suit was filed by the respondent-plaintiff on the ground of bonafide necessity that the suit shop was required for the extension of the said hospital, which was for a philanthropic use. The Appellate Court after considering the entire evidence on record found that the respondent-plaintiff required the suit premises bonafide for the purposes of expanding the hospital. The Appellate Court also considering the legal position in detail held that the requirement of the respondent-defendant of the suit premises was bonafide. The Appellate Court has also considered the aspect of comparative hardship and found that the plaintiff would suffer more hardship than the defendant if the decree not passed in favour of the plaintiff. ;