TMI Blog1991 (4) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... for hearing on the question of admission, this Court passed a detailed order holding that the finding as to the availability of ground for ejectment under Section 12(1)(f) of the Act was not open to challenge. The appeal was admitted for hearing parties only on the question whether there was no sub-letting as contemplated by Clause (b) of Sub-section (1) of Section 12 of the Act. This Court opined that in view of the finding as to the availability of ground under Clause (f) having been confirmed, the decree for eviction would stand, nevertheless availability of ground under Clause (b) was being taken up for consideration in second appeal because in the event the finding being reversed on that issue, the tenant/appellant would be entitled to compensation under Section 12(6) of the Act. In short, this Court was definitely of the opinion that the decree for eviction was not open to challenge in second appeal and the only effect of admitting the appeal for hearing would be on the entitlement of the tenant to compensation under Section 12(6) of the Act. 4-A. On 5-4-1991, the tenant/appellant has moved two applications before this Court : one, seeking amendment in the written statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of law. It will be interesting to read the old and new Section 100 in juxtaposition : -- Section 110--Old Section 100--New 100. Second Appeal. --(1) Save where 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 a High Court, or any of the following grounds namely :-- 100. Second Appeal. --(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. (a) the decision being contrary to law or to the some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (2) An appeal may lie under this section from an appellate decree passed ex parte. (c) a substantial error or defect in the procedure provided by the Code or by any other law for the time being in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated by it (the High Court), but not on question refused to be formulated earlier by it. To put it, in other words, if the High Court while hearing under Rule 11 of Order 41 formulated a positive opinion that a particular question did not arise for hearing or was not a substantial question of law worth being heard at the final hearing, that was the end of the matter and would deprive the High Court of its jurisdiction to permit a rehearing on that question at the stage of final hearing. To put in other words, additional question may be formulated and heard if at an earlier stage the question has been left out from being formulated either because it was not raised or escaped the attention of the Court at that stage. The substantial question of law, left out sub silentio, as neither argued nor considered by the Court, can always be permitted to be formulated at a latter stage, but not when it has been abandoned or refused to be formulated by the Court positively. 7. It is the distinction between the legislative drafting of the old and new Section 100 which had led this Court in holding in Sukhdeo Chunnilal v. Gendalal Salukchand and Ors., AIR 1965 SC 24 that the Court of appeal un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts or new situations which subsequently emerged; the other type of interlocutory orders are designed to ensure just, smooth, early and expeditious disposal of the suit . Even if the rule of res judicata does not apply it will not follow that on every subsequent date of hearing the prayer could be repeated and fresh orders sought. In the case at hand the order dated 21-8-1978 had put an end to the litigation partly by closing the chapter in so far as the finding as to availability of the ground under Section 12(1)(f) of the Act and the 'liability of the appellant to ejectment was concerned. Litigation was put to end, though in part. 10. In Smt. Sukhrani v. Hari Shanker and Ors., AIR 1979 SC 1436, their Lordships held : It is true that a decision given at an earlier stage of a suit will bind the parties at later stages of the same suit. But it is equally well-settled that because a matter has been decided at an earlier stage by an interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher Court is not precluded from considering the matter again at a later stage of the same litigation. 11. In Lingayya Ayyayara v. Kandula Gangiah and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /tenant entered into a partnership with his brother and then passed on the control of the premises to his brother, who started his own business activity in the permises. The defendant admitted in his cross-examination that he had shifted to Delhi and the business in the suit premises at Gwalior was run by his brother. He was not in a position to give any details as to the activity carried on in the suit accommodation which he certainly would have been in a position to do, if only, he had any interest left in the business run in the suit accommodation. It is clear that the defendant had withdrawn himself from the suit accommodation inducting his brother therein and the latter alone was in charge and in control of the business run in the suit premises, inviting applicability of Section 12(1)(b) of the Act. Recently this Court in Navalmal v. Laxman, S. A. No. 132/87, decided on 7-3-1991 has held, on a review of the case law available on the point that even a brother can be a sub-tenant and mere relationship, without more, would not detract from attracting the mischief contemplated by Section 12(1)(b) and Section 14 of the Act. The finding that the defendant has sublet the premises has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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