FIRM SAGARMAL VISHNU BHAGWANversusGAURI SHANKAR AND ORS.

                 FIRM SAGARMAL VISHNU BHAGWAN
A
                               v.
                     GAURI SHANKAR AND ORS.

                               OCTOBER 5, 1988

B             [R.S. PATHAK, C.J. AND S. NATARAJAN, J.)

          Rajasthan Premises (Control of Rents. & Evection) Acl; i9so:
    Section J3(c) and (6)-'-Tenant-Eviction of-On ground of hav-
    ing raised walls of Nohara-Whether 'material alteration' caused by
    tenant.·
c          The respondent Instituted a suit against the tenant/appellant for
    recovery of rent as well as his eviction from a Nohara on various ·
    grounds, such as, default In payment of rent, causing material altera-
    tion and damage to the property, bona fide requirement, etc. The
    appellant contested the suit. Seven Issues and two additional Issues were
D framed by the trial Court. Issues 3, 6 and additional Issue No. J related
    to whether material alterations were made by the defendant, entitle·
    ment to receive the due rent and period of non-payment of rent. Issues .2
    to d were answered In favour of and Issues l and 7 against the appellant.
    Un Issue No. b and additional Issue No. J, the trial Court held that there
    were no arrears and hence no decree for eviction on this ground could
E be passed, and on Issue No. 3, It held that the construction should have
    been made with the consent of the respondent and the raising of the
    height of the walls had not caused any material alteration to the pre·
  . mises. During the pendency of this suit, the respondent flied an appllca·
    tlon under s. J3(0J of the Act for having the defence of the appellant
    struck off, but the same was dismissed by the trial Court.
F
          The Appellate Court lnsplte of concurring with the findings of the
    trial Court on Issues 2 to S allowed the appeal, struck off the appellant's
    defPnce and granted a decree for eviction. ·

           During the pendency of the second appeal, the act came to be
G amended and availing the benefits of the amendments the appellant had
     the arrears of rent, Interest thereon al)d costs of the suit determined by
     the Court under s. 13 A(b) and deposited the entire amount within one
 •· 'month. The High Court held that since the appellant had compiled with
    the terms ofs. 13 A(b), the order of the Appellate Court strlklDg outthe
     defence and decreeing the suit on the ground of default Iii payment of
H rent cannot be sustained. However, the High Court Instead of allowing
                                       416
                                                                      1·'


                 FIRM SAGARMAL '· GAURI SHANKAR                       417

the appeal, launched upon an enquiry about the correctness of the · A
finding of the Courts below on issue No. 3 and concluded that the
additional construction must have been made by the appellant without
the consent of the respondent and that the construction would constitute
a material alteration within the meaning of Section U(c) of the Act and
dismissed the second appeal preferred by the tenant;appellant.
                                                                         B
      In the appeal to this Court, on behalf of the appellant it was
contended that the High Court having held that the striking out of the
defence and decreeing of the suit by the appellate Court on the ground
of default cannot be sustained, should have dismissed the respondent's
suit because no other question arose or survived for consideration, but
the High Court exceeded its jurisdiction and erred in setting aside a C
concurrent finding of fact on issue No. 3 when no cross-objection had
been filed by the respondent and since the High Court was dealing with
a second appeal, it was subjected to the constraints placed by s. 100 of
the Code of Civil Procedure.

      On behalf of the respondent it was contended that the High Court       D
was not dealing with a second appeal in exercise of its powers under s.
100 of the Code of Civil Procedure, but was only exercising its revi·
sionaljurisdiction preserved by the proviso to s. 22(2) of the Act, and as
such, the High Court was not bound to confine its scrutiny to substan·
tial questions of law alone and could examine the legality and propriety
of the findings of the Courts below on issue No. 3, and even without         E
preferring a cross-objection the respondent was entitled to assail the
finding on issue No. 3.

      Allowing the Appeal, this Court,

      HELD: 1. The Judgment of the High Court is set aside and the           F
Judgment and decree of the trial Court dismissing the respondent's suit
for eviction is restored. [425G]                                 ·

      2. The High Court could not have launched upon a probe into
the correctness of the findings on issue No. 3 hy the Courts below
after it had concluded that the striking off of the defence by the           G
Appellate Court and the decreeing of the suit on that score could not
he sustained. [424B-C]

      3. If the second appeal was one preferred under Section 100 of .
the Code of Civil Procedure the finding of the Courts below on issue No.
3 did not involve any substantial question of law. Even if the finding was H
      418         SUPREME COURT REPORTS                [1988] Supp. 3 S.C.R.

      wrong it was only· a finding of fact or at best a finding on a mixed
A questioin of law and facts and nothing more. The High Court had failed
      to notice that the respondent had. not filed any cross-objection in the
      second.appeal to challenge the correctness of the finding on issue No. 3
      by the Courts below. Alternatively, if the appeal was only a revision
      preferred to the High Court by virtue of the proviso to Section 22(2),
a     the High Court had no jurisdiction to interfere with the concurrent
      findings of the Courts .below on issue No. 3 because the finding did not
      suffer from any error in the exercise of the jurisdiction vested in the
      Courts below. [424C-E)

            Gian Chand v. K.B. Lal, [1977) 2 SCR 324 at 332, referred to.

            Raghunath v: Kedar Nath, [1969] 3 SCR 497 at 504, followed.

             4. Another error which the High Court has committed is in draw-
      ing a conclusion of its own that even though no details regarding the
      length and width.of the plot of land or the dimensions of the constructed
JI)   portion of the Nohara were on record, the raising of the height of
      the walls from 5 feet to ll feet would per se amount to material
      alteration within the meaning of Section IJ(c) of the Act. The High
      Court has thus rendered a finding without there being any evidence
      llD record for it. f425E]


E          CIVIL APPELLATE JURISDICTION: Civil Appeal No.·
      1327(N) of 1977.

           From the Judgment and Order dated 7.2.1977 of the Rajasthan
      High Court in S.B.Civil Regular Second Appeal No. 360 of 1974

f           Tapas R-ay and Sushil Kumar Jain for the Appellant.

            H.K. Puri for the Respondents.

            The Judgment of the Court was delivered by

G            NATARAJAN, J. The limited question of law falling for consi-
      deration in this appeal by special leave is whether the High Court had
      travelled beyond its jurisdiction when inspite of accepting the appel-
      lant's contention in second appeal, it had failed to allow the appeal and
      instead dismissed it on a ground which was not in issue in the second
      appeal.
H
I
           FIRM SAGARMAL v. GAURI SHANKAR. {NATARAJAN, J.)               419

           We may first have a look at the facts. The tenant/appellant was
                                                                                A
    granted lease of a Nohara (an open space enclosed by a wall) belong-
    ing to the respondent in Hanumangarh town in the year 1965. On
     19.9.1967, the respondent instituted a suit against the appellant pray-
    ing for recovery of rent as well as the eviction of the appellant on
    various grounds, such as, default in payment of rent, causing material
    alteration and damage to the property, bona fide requirement of the         B
    nohara by the landlord for starting a factory etc. The appellant raised
    appropriate defences and contested the suit. On the basis of the plead-
    ings of the partis, the Trial Court viz. the Munsif Magistrnte !st Class,
    Hanumangarh framed seven issues and two additional issues. Issue
    Nos. 3, 6 and additional issue No. I which alone are of relevance in this
    appeal were framed as under:
                                                                                c
                "Issue No. 3: Whether the defendant has raised walls of
                the said .Nohara, due to which material alterations have
                been made by defendants.·

                Issue No. 6: Whether plaintiff is entitled to receive           D
                Rs. 77!.74'against defendant?

                Additional Issue No. I: Whether defendant has not paid
                rent upto Samvat 201!2, so what is its effect upon main merit
                of the suit?"
                                                                                E
          After a detailed consideration of the evidence adduced by the
    parties, the Trial Court answered issues 2 to 5 in favour of the appel-
    lant. On issues I and 7 which related to the tenancy being monthly or
    y~arly and whether there had been a valid termination of the tenancy,
    the Trial Court held against the appellant. However, on issue No. 6
    and additional issue No. I which pertained to the arrears of rent, the      F
    Trial Court held that there were no arrears and hence no decree for
    eviction can be passed on the ground of arrears of rent.

          Since the findings on issues 3 and 6 have relevance, we will
    advert to them in detail. On issue No. 3, the Trial Court held that the
    appellant had no doubt raised the height of the walls by about 5 to 6       G
    feet but the evidence disclosed that the construction should have been
    made with the consent of the respondent and furthermore the raising
    of the height of the walls had not caused any material alteration to the
    premises within the meaning of the Act.

          During the pendency of the suit, the respondent filed an applica-     H
    420         SUPREME COURT REPORTS                [1988] Supp. 3 S.C.R.

    ti on under Section 13(6) of the Act for having the defence of the
A
    appellant struck off. The application was considered afong with Issue
    No. 6 and dismissed in the following manner:

               "Plaintiff has also file'd an application under Section 13 sub-
               clause 6 of the said Act for getting defence: of the defendant
B              struck off but same has been withdrawn by him in view of
               the report of office dated 7.8. 7 l and payments made by
               defendant. In such circumstances, we have to say that rents
               do not stand in arrears with the defendants and it has been
               paid off to the plaintiff. Therefore, this issue has become
               redundant and not necessary to be discussed. There are no
               defaults in payment of rent as plaintiff has paid an advance
c              monthly rent to. plaintiff. It has been argued on behalf of
               plaintiff that rent for the month of July has not been made
               by defendant upto l5.7.7 l so, defence should get struck
               out, but this fact has already been considered and decided.
               It is an advance rent which is being paid by defendant and
D              could have been paid by defendant upto !5.8. 7 i. In such
               circumstances, it cannot be inferred that rent has not been
               paid to plaintiff in time or default has b'oen committed.··

          The Appellate Court., after re-.apl'raising the evidence affirmed
    the findings ot the Trial Court on issues 2 to 5 in the following manner:
E
               "As regards issue Nos. 2 to 5 I have carefully examined the
               pleadings of the parties and the evidence 9n the record and
               find no hesitatiQn in endorsing the finding of the Court
               below."                               ·

p        In so far as the finding on issue No. 3 is concerned, the Appellate
    Court held as follows:

               "As regards the issue No. 3 the defendant admitted that he
               has raised the height of walls of the Nohara but has pleaded
               that this has been done with the consent of the plaintiff. On
G              this point the defendant Bhagat .Ram has stated in his oral
               examination that the walls were raised with the consent of
               the plaintiff. In corroboration of the defendant's testi-
               mony, there is no other evidence oral or documentary to
               support his version that the walls were raised with the con-
               sent of the plaintiff. But then the learned trial court has
H              inferred the consent of the plaintiff by referring to the fact

                                                                                 -   I
- '.iW'



                 FIRM SAGARMAL v. GAURI SHANKAR [NATARAJAN, J.]                421

                     that the fresh contract of lease was entered into between         A
                     the parties after raising of the walls. This could not have
                     been done until the plaintiff had consented expressly or
                     impliedly to the raising of the height of the walls. I have
                     considered this aspect of the case and agrree with the
                     learned trial court that the consent of the plaintiff to the
                     raising of the height of the walls can safely be inferred from    B
                     this circumstance. It is admitted by the plaintiff and is
                     clearly proved on record that the contract of lease leading
                     to the reduction of rent to Rs.421 p.a. was entered into
                     between the parties after raising of the height of the walls.
                     Had the plaintiff not consented to the raising of the walls,
                     he would not have entered a fresh contract of lease. Thus
                                          '         .
                     the finding of the learned Munsif on issue No. 3 does not
                                                                                       c
                     appear to be erroneous."
                                                                   /

                The Appellate Court in spite of concurring with the finding of the
          Trial Court on issues 2 to 5 allowed the appeal on the ground the Trial
          Court should have struck off the defence of the appellant because the        D
          appellant had failed to apply to the court for depositing the rent
          arrears within one month from the date of first hearing of the suit viz.
          4.10.1967 but had applied only on 11.11.1967. The Appellate Court
          held that even though the respondent had failed to file an independent
          appeal, which was permitted under the Act against the order of the
          Trial Court refusing to strike out the defence of the appellant, the         E
          respondent was not precluded from challenging the order of the Trial
          Court in the appeal filed by the appellant against the final decree in the
          suit because ·the order refusing to strike out the appellant's defence
          was only an inter-locutory order and, as such, the correctness of the
          said order could be challenged in the appeal preferred against the final
          decree in the suit. In that view of the matter the Appellate Court           F
          struck off the appellant's defence in the suit and granted the respon-
          dent a decree for eviction.

                Aggrieved by the judgment and decree of the Appellate Court,
          the appellant herein preferred a second appeal to the High Court.
          During the pendency of the second appe.;I, the Act came to be                G
          ame.nded by means of Ordinance No. 26/75 which was later replaced
          by the Amendment Act No. 14 of 1976. Availing the benefit of the
          amendments effected to the Act, the appellant filed an application
          under Section 13A(b) and had the arrears of rent, interest thereon and
          costs of the suit determined by the Court and deposited the entire
          amount within one month. The High Court, therefore, held that since          H
     422         SUPREME COURT REPORTS              [1988] Supp. 3 S.C.R.

    the appellant had complied with the terms of Section 13A(b) he was
A
    entitled to the benefits of t!Je Section and as such "the order of the
    Appellate Court striking out the defence and decreeing the suit on the
    ground of default in payment of rent cannot be sustained." Strangely
    enough the High Court instead of allowing the appeal in view of the
    above said finding, launched upon an enquiry about the correctness of
 B the finding of the Courts below on issue No. J and re-appraised the
    evidence and concluded that the additional construction must have
    been made by the appellant without the consent of the respondent and
   ·secondly the construction would constitute a material alteration within
    the meaning of Section 13(c) of the Act. Thus, by traversing into a
   matter which was not in issue in the second appeal, the High Court
:C ·held that "the appeal fails though on a different ground" and dismis-
    sed the, second appeal preferred by the appellant. It is against that
    judgmentthis appeal by special leave has been filed.

         Mr. Tapas Roy, learned counsel for the appellant contended that
  the High •Court had exceeded its powers as a second appellate court by
D Te-opening a co.ncluded issue and re-appraising the evidence and
  rendering a new finding.and dismissing the second ·appeal on the said
   finding. The learned counsel stated that the only question of law
  involved .in the second appeal was whether t.he Appellate Court was
  right in '.taking the view that the order of the Trial Court refusing to
  :strike .off the defence was not. a final order, even though it was. an
E appealable order, but only an iµterlocutoty .order and as such the
  -cor.rectness ·of the order could be challenged by the respondent in the
   appeal preferred by the tenant. This question did not survive for con-
  :sideration ·by the High Court because of the amendments effected to
  .the Act. during the pendency of the Second Appeal. The High ·Court
   noticed this position and, therefore, rightly held as follows:

                "During the pendency of the appeal, the Act was amend.ed
                by Ordinance No. 26/1975. Later on, the Legislature
                adopted the Ordinance in the form of Amendment Act
                No. 14/1976. The tenant on t\le basis of the Amendment
                Act moved an application for determination of rent,
G               interest thereon and costs of the suit under Section 13A(b).
                This Couh vide its order dated 9.7.1976 determined the
                amount and directed the tenant to pay the said amount
                within one inonth. The tenant deposited the amount with-
                in the prescribed time. Section 13A(b)of the Amended
                Act provides that on payment of the determined amount
H               within the time fixed by the court the proceeding shall be
                             '

            FIRM SAGARMAL v. GAURI SHANKAR [NATARAJAN, J.J               423

                 disposed of as if the tenant had not committed any fault .
               . That being the law as amended during the pendency of the
                 suit the order of the Appellate Court striking out the
                 defence and decreeing the suit on the ground of d~fault of ·
                 payment of rent cannot ·be sustained. So far there is no
                 dispute between the parties."
                                                                                 B
     Having held that the striking out of. the defence and the decreeing of
     the suit by the Appellate Court on the ground of default of payment of
     rent cannot be sustained, so the argument of the appellant's counsel
     ran, the only course left open for the High Court was to allow the
     second appeal and dismiss .the respondent's suit for. eviction because
     no other question arose or survived·for consideration in the second
     appeal. Since the High Court had failed to do so but had launched upon
                                                                                 c
     a probe about the correctness of the finding of the courts below on
     issue No. 3 which had been rendered on appreciation of evidence and
     were concurrent in nature, the appellant's counsel argued that the
     High Court had clearly exceeded its jurisdiction in the second appeal
     and had erred seriously in setting aside a concurrent finding of fact       0
     when no cross-objection had been filed by the respondent.

            The appellant's counsel stated that since the High Court was
     dealing with a second appeal, it was subjected to the constraints placed
     by Section 100 of the Code of Civil Procedure. For this contention he
     relied upon Gian Chand v. K.B. Lal, [1977) 2 SCR 324 at 332. It was         E
     held in that decision that the right of appeal provided under Section
     22( 1) and the revisional powers of the High Court exercisable under
     the proviso to Sub-Section (2) of Section 22 would have reference only
     to those orders passed under Sections 6, 7, 11, 19(A) and 19(C) of the
     Act, but in so far as appeals or applications for revision under Section
     13(A)(c) are cc·~1cemed, they relate to decrees and suits for eviction      F
     based on the ground of non-payment of rent and therefore, the appeals
     and applications for revisicn arising under Section 13(A)(c) would not
     be covered by Section 22 and in all such cases the usual rights of appeal
·I   and revision will be available to the aggrieved party. Relying upon the
     above said decision it was urged that since the High Court was dealing
     only with a second appeal, it should not have entertained the respon-       G•·
     dent's plea that even though the appeal may .succeed in so far as the
     striking off of the defence is concerned, the second appeal shoWd still
     be dismissed on another ground. Mr. Puri, learned counsel for the
     respondent disputed the above said contention and argued that the
     High Court was not really dealing with a second appeal in exercise of
     its iiowers under Section 100 Code of Civil Procedure but was only          H
         424         SUPREME COURT REPORTS                [1988] Supp. 3 S.C.R.

     A exercising its revisional jurisdiction which has been preserved by the
       proviso to Section 22(2) of the Act, and as such, the High Court was
       not bound to confine its scrutiny to substantial questions of law alone
       and coud examine the legality and propriety of the findings of the
       Courts below on issue No. 3.                                          ·

     B         In the facts and circumstances of this case it is not necessary for
        us to go into the question whether the appeal heard by the High Court
        was one under Section 100 Code of Civil Procedure or one in exercise
        of its revision al powers left intact by the proviso to Section 22(2). In
        whichever way the matter is viewed the High Court could not have
        launched upon a probe into the correctness of the findings on issue
     CC No. 3 by the Courts below after it had concluded that the striking off of
        the defence by the Appellate Court and the decreeing of the suit on
        that score could not be sustained. If the secor-1 appeal was one prefer-
        red under Section 100 Code of Civil Procedure the finding of the
        Courts below on issue No. 3 did not involve any substantial question of
        law. Even if the finding was wrong it was only a finding of fact or at
     D best a finding on a mixed question of law and facts and nothing more.
        The High Court had failed to notice that the respondent had not filed
        any cross-objection in the second appeal to chaJJenge the correctness
        of the finding on issue No. 3 by the Courts below. Alternatively if the
        appeal was only a revision preferred to the High Court by virtue of the
        proviso to Section 22(2), the High Court had no jurisdiction to
      E interfere with the concurrent findings of the Courts below on issue
        No. 3 because the finding did not suffer from any error in the exercise
        of the jurisdiction vested in the Courts below.

               Mr. Puri, however, argued that even without preferring a cross-
         objection the respondent was entitled to assail the finding on issue
      F No. 3 to support the decree of the Appellate Court. We see no merit in
         this contention because the respondent sought the eviction of the ap-
         pellant on several distinct causes of action and the acceptance of any
         one of those causes of action would have entitled him to a decree for
         eviction. When all those grounds had been rejected by the Courts
         below and the Appellate Court had decreed the suit only by striking
;.   G off of the defence of the appellant, the respondent cannot seek sustain-
         me'nt of the Appellate Court's decree on a disallowed ground which
         had nothing to do with the non-deposit of rent or the striking out of the
         defence on that score. In this context we may only refer to Raghunath
         v. Kedar Nath, [1969] 3 SCR 497 at 504. In that case the plaintiff's suit
         for redemption was decreed by the Trial Court subject to a payment of
     lei Rs.1709.14 by him. The first Appellate Court reversed the judgment
           ,:+                                       ,_.,,, ' -'   =~




         FIRM SAGARMAl v. GAURI SHANKAR INATARAJAN, J.]                 425

and on further appeal the High Court remanded the matter and againsi          A
the judgment of the lower Appellate Court passed after remand the
plaintiff as well as the defendant filed second appeals to the High
Court. The High Court while dismissing the defendant's appeal and
allowing the plaintiff's appeal remanded the case to the lower Appel-
late Court with a direction that the defendants be asked to render
accounts before they claim any payment from the plaintiff at the time         B
of redemption of the mortgage. Against the judgment of the High
Court there were appeals to this Court. While dismissing the appeals
this Court granted limited relief to the defendants/appellants in so far
as the direction of the High Court for the defendant's liability to ren-
der accounts was concerned. In doing so this Court pointed out that
since the plaintiff had not filed any appeal against the decree of the        C
Trial Court directing him to pay Rs. 1709/14/- for redeeming the mort-
gage, the plaintiff was bound to pay the said sum and he cannot seek
adjustment of the same from out of any mesne profits payable by the
defendants. The same ratio would apply in this case also because the
respondent had accepted the finding on issue No. 3 by the Courts
below and h_ad not preferred a Memorandum of cross-objection to the           D
High Court.

      Another error which the High Court has committed is in drawing
a conclusion of its own accord that even though no details regarding
the length and width of the plot of land or the dimensions of the
constructed portion of the Nohara were on record, the raising of the          E
height of the walls from 5 feet to 11 feet would per se amount to
material alteration within the meaning of Section 13(c) of the Act. The
High Court has thus rendered a finding without there being any evi-
dence on record for it.

      Th_us, from wh_ich every angle the matter is viewed, the judgment       F
of the High Court cannot be sustained because it had transgressed its
jurisdiction which has lead to.the second appeal being dismissed, in-
stead of being allowed, on a ground which was not available to the
respondent for supporting the judgment and decree of the Appellate
Court. We, therefore, allow the appeal and set aside the judgment of
the High Court and restore the judgment and decree of the Trial Court         G
dismissing the respondent's suit for eviction. There will, however, 'be
no order as to costs.

A.P.J.                                                   Appeal allowed.