MAHENDRA KUMAR Vs. MOOL CHAND

JUDGEMENT

(1.) SO far as the question of rejection of the two applications by the learned Court below is concerned, it may be mentioned that one of the application was under Order 26 Rule 9 CPC. The learned appellate Court in the impugned judgment had mentioned in para 12 about these two applications. As far as the application under Order 26 Rule 9 CPC is concerned, it has been observed that it was not necessary, because there was sufficient evidence on record and it has been established unequivocally that the appellant -defendant had installed a Press in the disputed accommodation. As such, the issue of commission will not be of any help for the decision of the case. I do not find that the learned appellate Court was wrong in its approach while rejecting this application. I, therefore, find that the application was rightly rejected.

(2.) AS regards the application under Order 41 Rule 27 CPC, for permission to file a copy of sale -deed is concerned, it may be mentioned that it should have been allowed by the learned appellate Court because it contains certain averments which were necessary for the proper decision of the case, as is evident from the observations of the first appellate Court itself, inasmuch as it too has taken help from the averments made in this sale -deed. Consequently, I find that the copy of the sale -deed ought to have been brought on record and the prayer in that regard was wrongly rejected. Now, I come to the merits of the case. As said earlier, the finding of fact recorded by the Courts below on the question of bona fide need and the nature of tenancy are final and they can be interfered with in this Court, only when it is brought on record that the findings are based on no evidence or on misreading of evidence. Now, it has been argued that the findings are perverse, but mere perversity in itself is not sufficient to enable this Court to interfere in the findings of fact record by the Court below. The only misreading or illegally pointed out by the learned counsel for the appellant is that the learned appellate Court has taken into consideration the sale -deed, which was rejected by it and was not allowed to be brought on record. To my mind, this is not such a lapse on the part of the appellate Court, which may go to the root of the matter. Apart from it, I have already allowed the application above. Thus, the, document, i.e. the copy of the sale -deed could be seen. While discussing the evidence adduced by the parties, the learned Courts below critically examined the evidence and gave a definite finding of fact against the defendant -appellant. This Court cannot re -appraise that evidence. Though, at the time of admission of appeal only one substantial question of law was formulated, as mentioned above, yet the appellant has moved an application under section 100 (5) CPC for framing of additional substantial questions of law. Four Additional substantial questions of law have been prayed. The first two additional substantial question of law prayed in the application to be formulated related to the applications under Order 11 Rule 27 and under Order 26 Rule 9 CPC. Both these points have been considered above.

(3.) LASTLY , it has been argued that the accommodation could not be got vacated for the composite need and in this connection certain authorities have been cited. First of all I may mention that no such case was taken in the written -statement nor any substantial question of law was formulated on this point. This point was not even raised in the application under section 100 (5) CPC which was moved lateron, and as such it is not open for the appellant to argue on this point. Appeal dismissed.