Second Appeal Under CPC Is Used To Substantiate The Question Of Law In A Case: In Rajasthan High Court

A second appeal is pending before the High Court, and it can be brought solely based on a severe point of law. A second appeal against an ex parte decree is also possible. A question of law or a combined question of fact and law cannot be appealed. The High Court Of Rajasthan upheld this through a single learned bench MR. JUSTICE SUDESH BANSAL in SHANKARLAL NADANI S/O LATE DHANRAJ NADANI V. SOHANLAL JAIN S/O LATE LOONKARAN JAIN (S.B. Civil Second Appeal No. 119/2021).

Facts of the case – According to the plaintiff, the store was rented out in 1982 for Rs.583.33 per month. However, according to the defendant, the business was rented out in 1972 for Rs.110/- per month, and the rent was increased to Rs.3500/- half annually (Rs.583.33 per month) a half-yearly oral tenancy. The landlord issued a registered notice under Section 106 of the Transfer of Property Act (‘TP Act from now on), terminating the respondent-tenancy tenant’s with effect from 31.03.2013, alleging, among other things, non-payment of rent, the need for the shop to be rebuilt, and the allegation of material alteration by the tenant. The landlord then launched a civil claim for rent arrears and eviction in 2013 before the Civil Judge in Suratgarh, requesting mesne profits of Rs 10,000/- per month. The provisions of the Rajasthan Rent Control Act 2001 (hereafter referred to as ‘the Act of 2001’) were not in effect in the municipal area of Suratgarh at the time of filing the civil complaint; hence this civil suit regarding the TP Act was maintainable. It was argued that the rent had already been paid until March of 2014 and that the notification under the TP Act was erroneous. The allegation of a monthly mesne profit of Rs. 10,000 was likewise rejected, and the civil suit was urged to be dismissed.

The eviction decision issued by the civil court on 28.05.2015 is without jurisdiction, according to learned counsel for the appellant-tenant, since the Rent Control Act, 2001 was extended to the municipal territory of Suratgarh vide The civil court’s competence to make an eviction decree terminated on 28.05.2015 as a result of a notification dated 11.07.2014, which took effect on 11.05.2015. To back up his claims, he cites the decision in the case of K. Ramnarayan Khandelwal v. Pukhraj Banthiya. The counsel for the appellant-tenant contends that, while the operation of the judgment dated 26.10.2017 passed in K. Ramnarayan (DB Civil Reference No.01/2015) has been stayed by the Hon’ble Supreme Court via order dated 05.03.2018 passed in a Petition for Special Leave to Appeal No.1551/2018, the same is only an interim order that was given without assigning a reason. The judgment dated 26.10.2017 has not been quashed.

Learned counsel for the landlord, on the other hand, claimed that because the Hon’ble Supreme Court explicitly stayed the execution of the Reference order of October 26, 2017, the same does not hold the field today. The eviction complaint brought under the TP Act was maintainable when it was filed, and the civil court, after a full-dressed trial, issued an eviction decision that is entirely within the scope of the law and so deserved to be upheld.

This court believes that, now that the Supreme Court has stayed the operation of the order dated 26.10.2017, which is a Division Bench’s view while answering a question in a Reference petition, there is no justification to accept the tenant’s arguments that the Division Bench’s view propounded in the Reference order dated 26.10.2017 should be deemed to be operative and be followed because the order has not yet been quashed and only its operation has stayed.

The appellant has been a tenant since 1972 and has previously been ordered evicted under the legislation in effect when the eviction complaint was filed. In addition, the tenant-appellant has challenged the civil complaint and presented his proof. The tenant has accepted the notice, and his tenure has ended. The court’s conclusions below are well-considered factual findings based on the evidence presented to the trial court. The abovementioned factual determinations of the lower courts bear no resemblance to perversity. No severe further law was raised by the lower courts’ decisions about the plaintiff’s right to an eviction decree. The second appeal under Section 100 CPC is not admissible unless a severe law issue. As a result, this second appeal has been dismissed. The request for a stay has also been denied.

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Reviewed by Rangasree.

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