TMI Blog1999 (9) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... fault in payment of rent, sub-letting of the premises in question and creating nuisance which was decreed. The Appellate Court confirmed the finding of sub-letting and nuisance but set aside the finding of default. In second appeal the High Court confirmed first appellate court finding that there is no default but set aside the concurrent findings that the respondent subletted the premises and created a nuisance. 2. In order to appreciate the controversy raised we deliver the following short facts. 3. The respondent took two shops and one godown along with Chabutra being a portion of House No. 2131, Subji Mandi, Johri Bazar, Jaipur, at a monthly rent of ₹ 45 per month with ₹ 5 per month for water charges. The case of the appellant-landlord is that respondent subletted one of the shops to one Mohd. Ishaq and subletted the godown to one Hamid. This apart, he failed to pay the rent for a period of about 2 years and 11 months totalling ₹ 1750. He also blocked the 11 feet wide entrance which is the only passage for the appellant for going to his residence by placing the bags of onion and other vegetables on both the side of the passage. In fact it blocks about 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the various questions and issues raised before this Court in revision under Section 115 C.P.C. deserves to be decided in an appeal finally if it becomes necessary to file the same by the tenant.... Any adverse order is passed against him earlier which is appealable then these complicated questions of facts and law, calculations promotions and combination of Hindi and English Calendar months, can be decided there in appeal. 5. The Trial Court finally decreed the suit for eviction by holding that the respondent had committed default in payment of rent w.e.f. Vaisakh Bud Akum Sambat 2032 till date of filing of suit, he had also subletted the premises and created nuisance in the entry passage for the plaintiff-landlord. The appellate authority dismissed the appeal of the respondent by upholding his eviction on the ground of nuisance and sub-letting under Sections 13(1)(d) and 13(1)(e) respectively, but set aside finding of default under Section 13(1)(a). The appellant challenges this setting aside part, which according to him is unsustainable, as earlier the defence of the respondent was struck off under Section 13(5) of the Act on this very ground of default. The submission is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals, second appeals or revisions are all, to the extent conferred by the Legislature. No litigant possesses any natural or inherent right to appeal against any order, unless a statute confers and it is to the extent it is conferred. Thus area to challenge is also hedged by the Legislature hence challenge to the impugned order has to be confined within such limitation. How Legislature limits such right could be visualised from Section 96 and Section 100 CPC as it stood prior to the amendment by the Amendment Act 1976 (104 of 1976) and as it stands after this amendment. 9. Section 96 deals with appeal from Original Jurisdiction. Its language confers very wide right both on the appellant to challenge and jurisdiction of the appellate court to adjudicate, when it uses the words, An appeal shall lie from every decree passed by any court exercising Original Jurisdiction . Even this wide expanse is shrunk through Sub-sections 3 and 4. In other words, no appeal shall lie by virtue of Sub-section 3, where it is a consent decree and Sub-section 4 forbids appeal from an order in a suit cognizable by courts of small causes, in which the value of the subject matter does not exceed an amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antial question of law involving 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. 12. Sub-section (3) places an obligation on the appellant to precisely state the substantial question of law involving in the appeal. Sub-section 4 confers on the High Court an obligation to formulate the substantial question of law, if it is satisfied that it is involved. Then Sub-section 5 confers right on the respondent to urge that no substantial question of law arises. The proviso supplements the discretion to the court to formulate if some other substantial question of law arises if not formulated. The aforesaid scheme of this Section clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court has to exercise its jurisdiction under Section 100 CPC should always be borne in mind. We are sorry to state that the above aspects are seldom borne in mind in many cases and second appeals are entertained and/or disposed of, without conforming to the above discipline. 15. This Court in this case expressed its concern that these aspects are seldom borne in mind while deciding and entertaining the second appeal as they are being disposed of without conforming to this discipline. The concerned expressed by this Court in the aforesaid decision, which we also unhesitatingly reiterate. Though amendment was in the year 1976 but still large number of second appeal are being disposed of without conforming to this requirement. 16. In Ram Prasad Rajak v. Nand Kumar Bros and Anr., AIR1998SC2730 , this Court held : Para 7 ... Unless there was a substantial question of law, the High Court had no jurisdiction to entertain the second appeal and consider the merits. It has been held by this Court in Panchugopal Barua v. Umesh Chandra Goswami and Kshitish Chandra Purkait v. Santosh Kumar Purkait that existence of a substantial question of law is sine qua non for the exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by both the Courts below being based on evidence on record its setting aside by reappraisal of evidence, and in any case without framing any substantial question of law by the High Court cannot be sustained and further we also do not find any substantial question of law arising therein. Learned Counsel for the respondent tried to submit with force by attempting to take us to the evidence of the witnesses to show their unworthiness for reliance. It is neither a case of no evidence nor perverse finding. All these submissions are within the realm of appreciation of evidence which should not have been interfered by the High Court for less for us to examine. 19. Returning to the question of default committed by the respondent, the submission is, as per prayer in the suit the arrear claimed is only at the rate of ₹ 45 per month, hence without its amendment, subsequent enhancement to ₹ 100 per month under Section 7 cannot be construed to be a default for eviction. Further unless the order under Section 13(3) is modified as aforesaid the non-deposit of this payment, if at all, at this rate cannot be construed to be default. Thus this enhance amount, if any, cannot be const ..... X X X X Extracts X X X X X X X X Extracts X X X X
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