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RITESH KUMAR v SMT CHANDRAKANTA - CFA Case No. 551 of 2006  RD-RJ 2790 (18 May 2007)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH, JAIPUR.
S.B. Civil Second Appeal No.221/2002
Smt. Sushila Devi and Others
Shri Mahavir Kumar Sanghi
Date of Judgment :: 24th May, 2007
Hon'ble Dr. Vineet Kothari, J.
Mr.Ashok Sharma for the appellants.
Mr.L.L. Gupta for the respondents.
REPORTABLE 1. This is a defendant-tenant's second appeal under
Section 100 of C.P.C. whereby the appellants have challenged the concurrent findings of the two courts below decreeing the suit of eviction on the ground of personal bonafide need in favour of the plaintiff-landlord-respondent herein. 2. Mr. Ashok Sharma, learned counsel appearing for the appellants, has submitted that since the bonafide need of the plaintiff-respondent, Shri Mahaveer Kumar Sanghi, who was a practicing advocate extinguished with the death of the said plaintiff-respondent on 1.5.2004 during the pendency of this appeal, therefore, the decree cannot be executed and a substantial question of law arises in the present appeal. He relied upon the judgments of Hon'ble Supreme Court in Kedar Nath
Agarwal (Dead) and Another Vs. Dhanraji Devi (Dead) by
L.Rs. and Another [2005 (1) APEX COURT JUDGMENTS 45
(S.C.)]; Pratap Rai Tanwani and Another Vs. Uttam Chand and Another [2004 (2) APEX COURT JUDGMENTS 391(S.C.)] and Parmanand Vs. Abdul Kair [RLW 1973 240]. 3. On the other hand, Mr. L.L. Gupta, learned counsel appearing for the plaintiff-respondent, submits that even with the death of the plaintiff-respondent, Mahaveer Kumar Sanghi, the bonafide need of sons and other family members continues and they can manage the estate of the deceased and, therefore, the decree can be executed by them and in view of the concurrent findings of two courts below, no substantial question of law arises and, therefore, the present appeal deserves to be dismissed. He relied upon the judgments in Shakuntala Bai and others Vs. Narayan Das and others [AIR 2004 SC 3484]; Kirorilal Vs. Smt. Kishori Devi and others [2004 (4)
WLC (Raj.) 464] and Gaya Prasad Vs. Pradeep Shrivastava [AIR 2001 SC 803]. 4. Recently, the Hon'ble Supreme Court in Gurdev
Kaur and others Vs. Kaki and others [2007 (1) RLW 636
(SC)], while explaining the scope of Section 100 C.P.C. strongly deprecated the interference by the High Court in the second appeal against the concurrent findings of two courts below as the
Legislature never intended the second appeal under Section 100
C.P.C. to be a third trial of facts. It would be worthwhile to reproduce the relevant extra of Paras 72 to 77 of the said judgment, as under:-
"(72) When Section 100 C.P.C. is critically examined then, according to the legislature mandate, the interference by the High Court is permissible only in cases involving substantial questions of law.
(73) The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be, and they added a note of warning that no court in India has power to add to, or enlarge, the grounds specified in
(74) The High Court seriously erred in interfering with the finding of facts arrived at by the trial court and affirmed by the first appellate court.
(75) The High Court in the impugned judgment has observed as under:-
"In the normal circumstances a prodent man would have bequeathed the property in favour of his legal heirs. However, in the present case, the testator has disinherited the plaintiffs."
(76) The High Court also observed that "no father in normal, circumstances would like to disinherit daughters".
(77) The High Court has clearly deviated from the settled principle of interpretation of the will. The court does not sit in appeal over the right or wrong of the testators decision. The Court's role is limited to examining whether the instrument propounded as, the last will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last will, that the court looks into the nature of the bequest." 5. The whole emphasis of learned counsel for the appellants is that the subsequent event deserves to be noticed and relief can be moulded. According to him, in view of the death of landlord-plaintiff, since the bonafide need stands extinguished, it gives rise to substantial question of law from the concurrent findings of the two courts below. 6. This Court is of the considered opinion that it is not so. It is only to mould the relief provided the relief is required to be granted by the court concerned that taking into account the subsequent event, the relief may be moulded. However, merely because some subsequent event had occurred like the death of the landlord-plaintiff in the present case, it does not mean that the tenant would remain in the suit premises for ever and the decree itself becomes nonest against him. The suit property admittedly belongs to the plaintiff-respondent whose legal representatives have already been brought on record in the present appeal. The Hon'ble Supreme Court in cause of Gaya
Prasad's case (supra) held that subsequent developments occurred pedente lite can be taken into account only when need of Landlord is completely eclipsed by such subsequent events.
Again the Hon'ble Supreme Court in Shakuntala Bai's case
(supra) held that bona fide requirement of deceased landlord does not come to an end on account of death of landlord during the pendency of the appeal and sons/legal representatives of the landlord, who attained the majority during the pendency of the appeal are entitled to defend their estate and it is the bona fide need of the landlord on the date of institution of the suit, which has to be seen and not the subsequent event of death of landlord, which would not be relevant. 7. This Court is of the opinion that death of the plaintiff- respondent in the present case during the pendency of the appeal does not completely eclipse the bona fide necessity of the landlord, which existed on the date of institution of the suit and which was found to be a good ground for decreeing the suit for eviction by the two courts below concurrently. This is purely a finding of fact whether the bona fide personal necessity of the plaintiff-landlord existed or not. Therefore, no interference in such concurrent finding of facts can be made in the present second appeal as no substantial question of law arises in the opinion of this Court in this appeal. The present second appeal is devoid of merit and the same is, accordingly, dismissed with no order as to costs. [Dr. Vineet Kothari],J.
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