July 06 2010
In Dinesh Kumar v Yusuf Ali(1) the Supreme Court recently made an important pronouncement concerning the scope of maintainability of a second appeal before the high court. The Supreme Court was of the opinion that a second appeal under Section 100 of the Code of Civil Procedure 1908(2) is maintainable only on a substantial question of law and not on facts. However, if the high court concludes that the evidence recorded by the lower courts is perverse (ie, based on no evidence or on irrelevant material), the appeal can be entertained.
On October 1 1978 Dinesh Kumar was inducted as a tenant by Yusuf Ali in a shop at 83 Main Street, Mhow for a non-residential purpose for a monthly rent of Rs150. The respondent increased the rent periodically and on March 1 1995 it was increased to Rs700 per month. The respondent filed suit for eviction of the appellant on the grounds of nuisance and a bona fide requirement for himself. He contended that he needed the shop to carry out his business of selling plastic goods and shoes alongside his son, Zulfikar Ali.
Through a judgment and decree dated December 13 2002 the trial court upheld the suit for eviction under Section 12(1)(f) of the Madhya Pradesh Accommodation Control Act 1961 on the grounds of a bona fide need, but did not accept the plea of nuisance. Aggrieved, the appellant preferred a first appeal before the first additional district judge of Mhow. The appeal was allowed through a judgment and decree dated October 16 2003 on the grounds that the respondent had increased the rent periodically and his son had been in employment in Dubai. Therefore, the bona fide need was a pretext to increase the rent or evict the appellant.
Aggrieved by this order, the respondent approached the Madhya Pradesh High Court by filing a second appeal under Section 100 of the Code of Civil Procedure, which was allowed through a judgment and order dated January 25 2006. The appellant appealed before the Supreme Court of India.
The principal question before the Supreme Court was whether the high court had committed a grave error in entertaining the second appeal even though no substantial question of law was involved therein. The appellant contended that whether the lower courts had rightly appreciated the evidence on record to find out whether the landlord's need was real and bona fide so as to evict the tenant was a question of fact, and therefore that the second appeal itself was not maintainable. The respondent contended that if a finding of fact recorded by the lower courts is found to be perverse, the high court can entertain a second appeal and re-appreciate the evidence.
After considering the rival submissions of both parties, the Supreme Court was of the opinion that a second appeal was not permissible on the grounds of erroneous findings of facts based on appreciation of the relevant evidence. The high court should not entertain a second appeal unless it raises a substantial question of law. It is the court's obligation to further the clear intention of the legislature and not to frustrate it by ignoring the same.
The court referred to the Supreme Court judgment in Kulwant Kaur v Gurdial Singh,(3) wherein it was held that the question of whether the lower court's finding is perverse may come within the ambit of a substantial question of law. However, there must be a clear finding of perversity in the high court judgment in order to show compliance with Section 100 of the Code of Civil Procedure. The court also referred to the decision in Rajappa Hanamantha v Mahadev Channabasappa,(4) wherein it was held that is not permissible for the high court to decide the second appeal by re-appreciation of the evidence as if it were deciding the first appeal unless it concludes that the findings recorded by the lower court were perverse. Furthermore, the court also relied on Jai Singh v Shakuntala,(5) wherein it was held that it is permissible to interfere even on a question of fact, but only in exceptional circumstances.
The Supreme Court opined that the law on the subject states that a second appeal under Section 100 of the Code of Civil Procedure is maintainable only on a substantial question of law and not on facts. However, if the high court concludes that the evidence recorded by the lower courts is perverse, based on no evidence or irrelevant material, the appeal can be entertained and the court can re-appreciate the evidence. A landlord is the best judge of its need; however, this should be real and genuine and may not be a pretext to evict the tenant in order to increase the rent.
On the facts of the case at hand, the Supreme Court observed that it could find no fault with the high court judgment, but that the high court had committed an error in concluding that the findings recorded by the first appellate court were perverse. Therefore, the court partly allowed the appeal, directing that the respondent recover possession of half of the area of the premises for his need.
By its decision the Supreme Court has clarified the scope of Section 100 of the Code of Civil Procedure. This judgment highlights that while scrutiny of evidence is not totally prohibited when exercising jurisdiction in the second appeal, the power to scrutinize can be exercised only in exceptional circumstances and with proper circumspection.
For further information on this topic please contact Bishwajit Dubey or Tamal Mandal at Amarchand & Mangaldas & Suresh A Shroff & Co by telephone (+91 11 4159 0700), fax (+91 11 2692 4900) or email (firstname.lastname@example.org or email@example.com).
(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
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