TaxTMI 
TaxTMI 
2025 (2) TMI 1977
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....rments in the plaint. 5. Learned Senior counsel for the appellant after referring to the provisions Act submits that respondent/plaintiff has filed suit under Sections 12 (1)(a)(c) and 12(f) of Act for eviction as well as recovery of arrears of rent. But trial Court decreed plaintiff's suit only with respect to Section 12(1)(f) of Act. No appeal/cross objections have been filed by respondent/plaintiff before First Appellate Court with respect to dismissal of suit so far as it relates to Sections 12 (1)(a) and 12(1)(c) of Act. 6. Learned Senior Counsel for the appellant, after referring to judgment passed by the trial court as well as Appellate Court, submits that therein no direction with respect to compliance of Section 12 (6) of Act has been given. It is also urged that learned First Appellate Court has mentioned in para 25 that executing Court can take necessary action with respect to compliance of Section 12 (6) of Act. Learned Senior Counsel, after referring and relying upon Pradeep Mehar Vs. Harijivan J.Jethwa (Sinch Deceased Thr. Lrs.) and Other, (2023) 3 Apex Court Judgments (SC) 293 and Ridh Karan Patni Vs. Jagdish Prasad Agrawal, AIR 1990 MP 224, submits that si....
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....ic, he will vacate the suit premises but till today he has not vacated the suit premises. It is also urged that in para - 3 and 4 of plaint, there are pleadings with respect to non suitability of alternate accommodation and plaintiff has succeeded in proving the same. With respect to above submissions, learned Senior counsel for the respondent has relied upon Smt. Savitri Soni & Ano. Vs. Smt. Madhuri and another ( SA No.41 of 2003) dated 29.01.2024 and Hakimuddin Vs. Kamal Chandnahar, ILR 2024 MP 2101. On above grounds, it is urged that no substantial questions of law arise in the instant case. Hence, appeal be dismissed. 11. Heard. Perused record of the case. Learned trial Court vide judgment dated 31.05.2024 passed in RCS No. 377 A/2022 partly decreed plaintiff's suit and First Appellate Court vide judgment dated 19.11.2024 passed in RCA No.182/2024 dismissed appellant/defendant's appeal and affirmed judgment/decreed passed by the trial Court. 13. Therefore, question arises as to when this Court can interfere with the concurrent findings of facts arrived at by the first appellate court/trial court. In this connection, I would like to refer to the law laid down by th....
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....for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being: (i) Contrary to the mandatory provisions of the applicable law; OR (ii) Contrary to the law as pronounced by the Apex Court; OR (iii) Based on inadmissible evidence or no evidence It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in second appeal" 15. In this connection, Ishwar Dass Jain (Dead) through Lrs vs. Sohan Lal (Dead) by LRs reported in (2000) 1 Supreme Court Cases 434 may also be referred to. Paras 11 and 12 of the said judgment is relevant and is under:- "11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite ....
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....s been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In Sri Chand Gupta vs. Gulzar Singh [1992 (1) SCC 143], it was held that the High Court was right in interfering in Second Appeal where the lower appellate Court relied upon an admission of a third party treating it as binding on the defendant. The admission was inadmissible as against the defendant. This was also a Second Appeal of 1981 disposed of on 24.9.1985". 16. Now, facts of the case would be examined in the light of above principle of law. 17. So far as issue pertaining to opportunity of hearing to respondent at the time of admission is concerned, learned Senior counsel for appellant, after referring to Section 100 of CPC as well as Hamavathi (supra), has submitted that at the time of hearing on the point of admission, respondent has no right to be heard. 18. This Court has examined Hamavathi (supra) as well as Section 100 of CPC. In Section 100 of CPC, there is no such bar that while hearing appellant on the point of admission, respondent cannot be heard at all, even when respondent is present on caveat. In Hamavathi (....
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....Trial Court, in judgment passed by it, has not mentioned anything with respect to compliance of Section 12(6) of Act and learned Appellate Court has held that non mention of compliance of Section 12(6) of Act does not vitiate judgment passed by the Trial Court and Executing Court can ensure compliance of Section 12(6) of Act. 24. There is no quarrel with the general principle of law and indeed, it is unexceptionable that a Court executing a decree cannot go behind the decree; it must take decree according to its tenor; it has no jurisdiction to widen its scope and is required to execute the decree as made. 25. Now, sole issue before this Court is whether non-mention of Section 12(6) of Act in the impugned judgment can give rise to substantial question of law so as to admit this appeal. In this connection, language of Section 12(6) of Act is material. Section 12(6) of Act reads as under: "12(6). Where an order for the eviction of a tenant is made on the ground specified in clause (f) of sub-section (1), the landlord shall not be entitled to obtain possession thereof- (a) before the expiration of a period of two months from the date of the order; and ....
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....pellant in any manner whatsoever. Resultantly, submissions of learned Senior Counsel with respect to aforesaid are also rejected. 28. Further, with respect to issue involved in the case, it is also important to refer para 20 of appellant/defendant Dr. Subrato Biswas's deposition wherein appellant/defendant has deposed that his under construction clinic is expected to be completed approximately in 6-8 months and witness has voluntarily stated that when his clinic gets constructed/construction of clinic is over, then, he will vacate suit property. Witness's statement has been recorded on 03.04.2024. 29. If pleadings and evidence adduced by the parties and the impugned judgment passed by the first appellate court/trial court is considered, in the light of above legal principles/legal provisions reiterated in aforesaid judgments, then, in this Court's considered opinion, the findings of facts recorded by the first appellate court/trial court are not liable to be interfered with in the instant case and it cannot be said that first appellate court/trial court has ignored any material evidence or has acted on no evidence or first appellate court/trial court has drawn wrong i....