Damodar Lal vs. Sohan Devi and ors., 2016

Subject: Eviction of the tenant. 

The facts unfold the plight of a poor landlord languishing in courts for over forty years. The case gets sadder when we note that appellant had been successful both in the trial court and the first appellate court and the saddest part is that the High Court in the second appeal, went against him on a pure question of fact! Issue number-3 framed in Civil Regular Suit No. 191 of 1974 for eviction on the ground of unauthorised construction/material alteration, decided on 21.12.1989 in the Court of 

Munsiff, Bhilwara, Rajasthan, reads as follows:

Whether the tenant has carried out permanent construction on the plot thereby causing a permanent change in the identity of the plot against the terms of the rent agreement? Having analyzed and appreciated the evidence of PWs-1 and 2 and also DWs- 1 to 4, the trial court came to the following finding on the issue:

Thus all the witnesses of both sides have stated that when the plot was taken on rent, at that time, the plot was empty. The disputed plot was taken on rent. Later walls were constructed; sheets were put and were taken into use as shop and godown. Even today the plot is being used as a shop and godown. Dissatisfied, the tenants took up the matter in appeal before the Court of the Additional District Judge-I, Bhilwara, Rajasthan in Civil Appeal No. 20 of 1999 (originally presented before the District Judge, Bhilwara, Rajasthan on 19.01.1990 and since transferred to the Additional District Judge). In the judgment dated 22.09.2000, the first appellate court, after re-appreciating the whole evidence, came to the conclusion that:

… The appellant tenant has not been able to present any evidence to show that the consent of the landlord had been taken before making structural changes.... On such findings, the appeal was dismissed.

The tenants pursued the matter in Second Appeal No. 109 of 2000 before the High Court of Rajasthan which was allowed by the impugned judgment dated 27.09.2012. The following were the substantial questions of law framed in the second appeal:

(1) Whether on the facts and in the circumstances of this case, the learned courts below have erred in granting a decree for eviction on the ground of material alteration while ignoring the relevant considerations and proceeding on irrelevant considerations.

(2) Whether on the facts of this case, the learned courts below have erred in not drawing adverse inference for non-appearance of the plaintiff Damodar Lal in the witness box? The High Court, in the second appeal, came to the conclusion that the concurrent finding on structural change, in the absence of the statement of the plaintiff before the court, cannot be treated to be trustworthy. The High Court went further and held that adverse inference should have been drawn for the non-appearance of the plaintiff in the witness box, and in such circumstances, the finding on material alteration is totally perverse.

Therefore, the finding arrived at by the trial court on the issue of material alteration is totally perverse and not based upon sound and trustworthy evidence. The trial court has committed gross error while not drawing adverse inference for non-appearance of the plaintiff Damodar Lal because he was the only witness to prove the fact of material alteration by way of producing documentary evidence which is the registered sale-deed executed by Rameswhwar Lal in favor, so also, his oral statement. And thus, the High Court allowed the second appeal and the suit for eviction was dismissed. Aggrieved, the landlord filed the civil appeal.

Whether the High Court was justified in upsetting the finding which is a pure question of Fact under sec. 96 of the CPC.

Perversity has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.

In Krishnan v. Backiam and another

It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts.The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect.

In Gurvachan Kaur and others v. Salikram (Dead) Through Lrs,, this principle has been reiterated:

It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse.

This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempts by the defendants/respondents to establish otherwise have been found to be totally unacceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement.PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.

In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law raised by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises.

At this juncture, learned Counsel appearing for the respondents, praying for some reasonable time to vacate, submitted that in the nature of the timber and furniture business carried on at the premises, they require some time to find out alternate location/accommodation. Having regard to the entire facts and circumstances of the case, we are of the view that the respondents be given time up to 31st March, 2017 which is agreeable to the appellant as well, though reluctantly. The respondents are directed to file the usual undertaking in this Court and also continue to pay the use and occupation charges at the rate of Rs.10,000/- per month. In the event of any default or violation of the terms of undertaking, the decree shall be executable forthwith, in addition to the liability for contempt of court. 

The Hon’ble High Court without giving due consideration to the law settled passed a vague judgment which made the landlord in the present case suffer for almost four decades. Such errors on the part of the judiciary is dangerous for the true litigants. Such grave errors may eventually retreat the faith from the judiciary. Laws are made to heal the wounds of the sufferer rather than further making it sore.

The Hon’ble High Court without giving due consideration to the law settled passed a vague judgment which made the landlord in the present case  suffer for almost four decades. Such errors on the part of the judiciary is dangerous for the true litigants. Such grave errors may eventually retreat the faith from the judiciary. Laws are made to heal the wounds of the sufferer rather than further making it sore.