- (1.) THE appellant is aggrieved by the judgment and decree dated 05.01.2012 passed by Civil Judge (Junior Division) Ladnu, District Nagaur, whereby the learned Magistrate has decreed the suit for eviction in favour of the respondent-plaintiff. The appellant is also aggrieved by the judgment dated 16.08.2012 passed by the Addl. District Judge, Deedwana, whereby the learned Judge has confirmed the judgment and decree dated 05.01.2012 in favour of respondent plaintiff. The brief facts of the case are that the respondent-plaintiff, Kabootar Khana, filed a suit through its Manager, Mr. Bajranglal Agrawal for eviction, recovery of arrears of rent and compensation. The respondent-plaintiff claimed that the shop in question had been rented out to the the appellant-defendant. But the appellant-defendant committed default in payment of rent. Thus, a notice for termination of tenancy was given. But the appellant- defendant neither vacated the shop nor paid the arrears of rent. The appellant filed a written statement denying the averments made in the plaint and raised objection regarding maintainability of the suit. It was averred that respondent- plaintiff concealed the fact about a compromise which was reached between the parties. It was further claimed that the appellant-defendant was always ready and willing to pay the rent. At the same time, the arrears of rent as claimed by the respondent-plaintiff was disputed.
(2.) BOTH the parties produced their oral and documentary evidence before the learned trial Court. While the matter was posted for final decision, the appellant- defendant filed an application under Section 151 CPC seeking permission to make averments in regard to issue No.5 relating to enhanced rent and prayed that his affidavit to this effect may be taken on record. After considering the oral and documentary evidence, vide judgment and decree dated 05.01.2011, the learned trial court dismissed the application filed by appellant-defendant under Section 151 CPC. However, it decreed the suit in favour of the plaintiff- respondent and directed the appellant-defendant to vacate the suit premises within two months and also to make payment of arrears of rent. Aggrieved by the said judgment and decree dated 05.01.2012, the appellant-defendant filed a first appeal before the learned Appellant Court. By judgment and decree dated 16.08.2012, the learned appellate court partly upheld the judgment dated 05.01.2012 passed by trial Court: it granted relief in the enhanced rate of rent for certain period. Hence, this second appeal before this Court. Mr. Vinay Kothari, the learned counsel for the appellant, has vehemently contended that the suit was filed by Kabootar Khana through its Manager. However, the suit was not maintainable on behalf of the plaintiff. According to him, the learned courts below have failed to appreciate this contention raised by the learned counsel. The plea raised by the learned counsel is highly misplaced as both the learned courts below have given reasons for rejecting the said plea. The appellant himself had admitted the fact that the previous Manager of Kabootar Khana had rented out the premises in question. The appellant-defendant had also admitted that the rent was being paid to Bajranglal (P.W.1), the alleged Manager of Kabootar Khana. Moreover, Bajranglal (P.W.1) had clearly stated in his testimony that the Kabootar Khana was constructed by his grandmother and is part of the personal property of the joint family. He had further stated that earlier the Kabootar Khana was managed and looked after by other members of the family. Subsequently, his uncle (Tauji) bestowed the responsibility upon him to look after the property. Even, the notice issued by him was issued in the capacity as a Manager. Thus, the learned courts below were justified in concluding that the suit could be filed through the Manager. In fact, once the appellant has admitted that the rent was being paid to the present Manager, he is estopped from raising the said issue.
(3.) A bare perusal of both the impugned judgments clearly reveal that the entire case is based on the facts established by the parties. No substantial question of law arise in the present appeal. According to the Hon'ble Supreme Court, after the amendment made in Section 100 C.P.C. the High Court would not be justified in interfering with concurrent finding of facts. In the case of Gurdev Kaur and Ors. V. Kaki and Ors. [(2007) 1 SCC 546], the Apex Court interpreted Section 100 CPC after it was amended in 1976. The Hon'ble Supreme Court held as under: "Now, after the 1976 amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words " substantial question of law" which is indicative of the legislative intention. The legislative intention is very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, is: (i)The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii)The substantial question of law to precisely state such question; (iii)A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; [6] (iv)Another part of the section is that the appeal shall be heard only on that question. It is the bounden duty of the High Court to entertain second appeal within the ambit and scope of Section 100 CPC". ;