- (1.) THIS civil second appeal under Order 42 Rule 1 r/w Section 100 CPC is directed against the judgment and decree dated 4. 4. 2002 passed by the learned Addl. Distt. Judge No. 3, Ajmer in Civil Regular Appeal No. 12/02 whereby the appeal has been dismissed and the judgment and decree dated 8. 12. 1987 passed by the learned Munsiff (East), Ajmer city in COS No. 476/75 has been confirmed.
(2.) BRIEFLY stated the relevant facts necessary for the decision of this appeal are that the plaintiff respondent filed a suit for eviction and arrears of rent against the appellant-defendant on twin grounds of default in payment of rent and subletting of suit premises without the permission and consent of the plaintiff. The appellant-defendant contested the suit by filing a written statement denying all the averments made in the plaint and further pleading that the premise let out comprised of three rooms and two `tibaras' and not two room and two `tibaras' as pleaded by the plaintiff. It was also pleaded that monthly rent of Rs. 85/- was inclusive of electricity and water charges. There was no default in payment of rent. The premises were sub-let with the permission and consent of the plaintiff. The trial Court framed 8 issues stemming from the pleadings of the parties, recorded their evidence and after hearing them decreed the suit on 8. 12. 1987 holding that the defendant had committed default in payment of rent but declined to pass decree of eviction on this ground giving him benefit of first default. The defendant was also found to have sub-let the suit premises without permission and consent of the plaintiff and the suit was decreed for eviction on this ground. The defendant preferred an appeal against the aforesaid decree. During the pendency of the appeal, he filed an application under Order 41 Rule 27, Order 13 Rule 2 r/w Section 151 CPC on 21. 4. 1989 for taking on record additional documentary evidence. A copy of the application was got furnished to the learned counsel for the plaintiff respondent. The matter was fixed for its reply and arguments and thereafter it came to be adjourned from time to time. The reply to the application was filed on 28. 7. 1990 and a copy of which was got furnished to the learned counsel for the appellant-applicant. The matter was fixed for the disposal of the application, but it was adjourned from time to time. Ultimately without disposing of the said application, the appeal itself was ordered on 2. 4. 1992 to be listed on 2. 5. 1992 for hearing. The appeal was then adjourned from time to time for about 5 years. Ultimately, it was heard on 31. 3. 2002 and vide impugned judgment and decree dated 4. 4. 2002 the appeal was dismissed without any orders on the aforesaid applications. The first appellate court framed two points for determination : (1) Whether the disputed property included one more room in the tenancy of the defendant and the rent of Rs. 85/- p. m. was inclusive of water and electricity changes; (2) Whether the plaintiff had given permission to the defendant to sub let the rented premises. Both these points have been decided against the defendant appellant by the first appellate court giving detailed, cogent and valid reasons for its conclusion. After hearing the learned counsel for the appellant exparte on the admission of this second appeal, it was admitted on 10. 5. 2002. The following substantial questions of law were formulated : 1. Whether findings of the learned appellate court stand vitiated on account of non consideration of application under Order 41 Rule 27 and Order 13 Rule 2 read with Section 151 CPC whereby the appellant defendant had sought to produce on record additional evidence ? 2. Whether the findings of the learned Appellate Court are sustainable in eye of law which are in violation of established principles of law that the application under Order 41 Rule 27 CPC has to be considered at the time of final disposal of the appeal ? 3. Whether when it was pleaded in the suit that monthly rent was inclusive of electricity charges only, evidence of the plaintiff landlord that it was inclusive of water charges also could have been relief upon? 4. Whether where it was admitted by the landlord that he permitted tenant to open Nala in the suit premises, could not it be presumed that the sub-tenancy was either with the permission of the landlord or was acquicised/attorned by the landlord in favour o the Sub-tenant? I have heard learned counsel for the parties and have also carefully perused the judgments of the courts below as well as the record and authorities cited at the bar.
(3.) LEARNED counsel for the appellant has first argued on the basis of cases of `ishwar Dass Jain (dead) through LRs. vs. Sohan Lal (Dead) by LRs. (1), and `kulwant Kaur & Ors. vs. Gurdial Singh Mann (Dead) by LRs. and others (2), that there are two situations in which interference in findings of fact is permissible; first, when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion; second, where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence with which if it was omitted, an opposite conclusion was possible. He has contended that in either of these two situations, a substantial question of law would arise. There are no and cannot be two opinions about the principle of law laid down in these authorities. According to him these parameters are fully satisfied in this appeal, so as to warrant interference of this court in the second appeal. Learned counsel for the appellant has then very strainuously argued that the learned court below has committed grave illegality in not deciding the application filed by the appellant and the same has vitiated the findings of the learned court below and has rendered the findings perverse and un-sustainable in law. In this regard reliance has been placed on the case of `uda Ram & Ors. vs. Sedhya and others' (3), `kalyan Singh vs. Mazid Gatiwaly' (4), `smt. Jamna & Others vs. Bhuwana' (5), `hanuman Mal vs. Jaskaran & Ors. ' (6), `mohan Das vs. Bachan Lal' He has submitted that the matter deserves to be remitted back to the first appellate court with the direction to first decide the application under Order 41 Rule 27 and Order 13 Rule 2 r/w Section 151 CPC and then to decide the appeal afresh. Learned counsel for the respondent has on the other hand while supporting the concurrent findings of fact and law recorded by the learned courts below has argued that the application in question was neither pressed before the learned court below nor the application was even primafacie entertainable as the necessary grounds on which additional evidence could be allowed to be taken on record were not made out before the court below. He has also argued that the documents which are sought to be taken on record are either inadmissible into evidence or are not relevant to the decision of the appeal. The appellant has also not shown as to how these documents are in any way relevant to the issues involved in the case. He has also argued that the first two substantial questions of law as formulated in this appeal at the time of its admission pertain to non-consideration of the aforesaid application. But the application is exfacie not entertainable and has been filed and not pressed only with the oblique motive of raising the plea before this court regarding non-consideration of the application. He has also argued that substantial questions Nos. 3 and 4 as formulated by this court at the time of admission of the appeal are purely questions of fact and cannot be said to be questions of law in any way and this court cannot go into the findings of fact even if they are erroneous. In this regard reliance has been placed on the case of `bholaram vs. Ameerchand' `ms. Labanya Neogi (through L. Rs.) vs. M/s. W. B. Engineering Co. ' (9) and `smt. Satya Gupta @ Madhu Gupta vs. Brijesh Kumar' ;