Judgment:
ORDER
G.D. Sharma, J.
1. This Civil Second Appeal has been filed against the judgment and decree dated 30-3-1996 passed by the learned 1st Addl. District Judge, Reasi whereby he affirmed the Judgment and decree dated 16-12-1987 passed by the learned Sub-Judge, Reasi. The factual matrix of the case is that respondent (landlord) purchased the suit shop from its original owners, namely, Bodh Raj and Des Raj which was occupied by the appellant as a tenant. After some time he filed the suit for ejectment on the basis of personal necessity. The suit was resisted and the following issues were framed :--
1. Whether the Nazool Department is a necessary party and without impleading the same, the suit is not maintainable? OPD
2. Whether the plaintiff has no locus-standi to bring this suit? If so, how? OPD
3. Whether the notice is not in accordance with law? OPD
4. Whether the suit is not triable by this Court? If so, how? OPD
5. Whether the suit shop is reasonably required by the plaintiff for his personal necessity? OPP
6. Whether the requirement of the plaintiff is preferential to that of the defendant? OPP
7. Whether the suit shop is in a dilapidated condition and the plaintiff wants to reconstruct the same, which will result in public benefit? OPP
8. Whether two shops have been leased out by the original owner, if so what is its effect? OPP
9. Whether the rent note is inadmissible in evidence? If so how? OPD
2. On 23-5-1981, the following additional issue was raised:--
'Whether partial eviction of the defendant from the suit shop so as to satisfy the reasonable requirement of the plaintiff can be ordered? If so to what extent? OPP
3. Issues Nos'. 1, 2, 3, 4 and 9 were treated as preliminary issues and decided on 9-5-1981. Issues Nos. 3 and 4 were not pressed. Issue No. 1 was decided with the findings that Nazool Department was not a necessary party. Issue No. 2 was decided by holding that appellant herein was estopped to deny the title of respondent in view of the law laid down in 1980 Kash LJ 60. Issue No. 9 was not pressed by the respondent herein and it was decided against him. On 16-12-1987, the remaining issues i.e. Issues Nos. 5, 6, 7 and 8 as well as additional issue were decided against the appellant and decree for ejectment was passed in favour of the respondent.
4. This judgment and decree (dated 16-12-1987) was challenged in appeal before the learned District Judge, Udhampur but after the creation of the Court of Addl. District Judge, Reasi the same was transferred there for adjudication. On 22-8-1991, appellant filed an application before the appellate Court with a prayer to reconsider the order dated 19-5-1981 whereby issues Nos. 1, 2 and 4 were decided against him. On 14-7-1992, this application was dismissed. This order was challenged in revision petition filed before this Court which was accepted vide order dated 27-7-1993. The appellate Court (Addl. Distt. Judge, Reasi) vide its judgment and decree dated 16-12-1987 confined the findings of the trial Court-on all the issues (including on the preliminary issues) and dismissed the appeal. This judgment and decree has been challenged in this appeal by formulating 2 questions of substantial law in the memo of appeal and they are to the following effect :--
1. Whether rent deed, dated 29-10-1972 can be acted upon to establish the relationship of landlord and tenant between Bodh Raj and Des Raj on one hand and the appellant Neel Kanth on the other?
2. Whether if the rent deed can be so acted upon the appellant can still say that the respondent Dewan Chand, is not his landlord
3. Whether mere payment of arrears of rent to a person at the asking of the original landlords, in accordance with the original lease deed, without anything more, amounts to attornment in favour of that person?
4. Whether a tenant is estopped from denying derivative litle of a person by saying that his landlords had no right to transfer the property in favour of that person?
5. Whether attornment, if proved can be shown to have been made under a mistake or ignorance of the true facts in regard to that person's true title in whose favour the same was made?
6. Whether it is not for the person alleging attornment to plead and prove that the payment of rent was made to him was in conscious acknowledgment of that person as his landlord and the same was not made in ignorance of true statement of facts as to his title?
7. Whether a Wasidar can mortgage, sell or in other way transfer the land leased to him or the building erected on such land without the permission of the competent authority? And whether any such transactions without such permission, is void and cannot be taken cognizance by any Court?
8. Whether the plaint discloses any cause of action and the ground of personal necessity can be looked into or adjudicated upon in absence of pleadings?
9. Whether any such documents as are not placed on the record and proved are admissible in evidence and can be looked into?
10. Whether grounds urged before the Court can be ignored and not dealt with and the findings thereon not returned?
11. Whether the approach of the first appellate Court and that of the trial Court in arriving at the findings, in particular on issues Nos. 5 and 6 and additional Issue and on the question of attornment is fundamentally erroneous?
12. Whether the respondent has failed to prove that he reasonably requires his shop for his personally use and occupation? And on the principle of comparative advantage and disadvantage, he is not entitled to possession of the shop?
5. This court vide its order dated 17-5-1996 admitted the second appeal only on one question of substantial law which is to the following effect:-
'Whether a Wasidar can mortgage, sell or in any way transfer the land leased to him or the building erected on such land without the permission of the competent authority? And whether any such transactions, without such permission, is void and cannot be taken cognizance of by any court?'
6. The counsel of the appellant, namely, Mr. S. S. Nanda has filed the application under the provisions of Order 41 Rule 27 CPC wherein he has prayed that the appellant may be permitted to adduce additional evidence with regard to the fact that respondent herein is running a Guest House in the Town of Katra near the suit premises. It is pleaded that issues No.5 and 6 were struck in the case to the following effect:-
'5. Whether the suit shop is reasonably required by the plaintiff for his personal necessity? OPP
6. Whether the requirement of the plaintiff is preferential to that of the defendant? OPP'
7. The courts below have concurrently decided these issues against the appellant.
Meanwhile, respondent has constructed a Guest House which is a subsequent development in the currency of the suit and it requires adjudication as it has bearing on issues No. 5 & 6. The application is being opposed by the other-side by pleading that the alleged Guest House was constructed 5 or 6 years ago which is not a Guest House but a residential building and it has no bearing with the suit shop. Out of 12 proposed substantial questions of law, in the memo of appeal, the Court had thought proper to frame only one.
8. Arguing his case, Mr. Nanda states that under Order 41 Rule 2, the Court has the power to frame any other substantial question of law which has not previously been framed. Order dated 17-5-1996 does not contain any bar for hearing the appeal on any other substantial question of law. Provisions of Order 41 CPC in whole applies in case of second appeal and under Order 41 Rule 33 the Court has the power to make any order as the case requires. Similarly Order 41 R 27 CPC applies to this appeal and under Clause (b) a 'substantial cause' has arisen during the currency of the appeal because respondent has erected construction which is being used as a Guest House and it affects the question of personal necessity. The counsel further states that during the pendency of appeal they have started this building being used as Guest House and when there is denial for its use, this controversy can be resolved on the basis of evidence and in this manner the production of evidence is necessitated,. That appeal is a continuous lis and section 11 of the J & K Houses and Shops Rent Control Act (hereinafter to be referred to as the Act) states in clear terms, 'notwithstanding to the contrary in any other Act or law, no order or decree for the recovery of possession of any house or shop shall be made by any Court in favour of the landlord against a tenant, including a tenant whose lease has expired, x x x x x x'
9. The words used are, 'no order or decree' and in the present case no decree can be passed without ignoring the subsequent event of running a hotel which diminishes the personal requirement of the respondent being taken into consideration. In order to substantiate his argument, he has cited the case of Lakshmi Narayan Guin v. Niranjan Modak AIR 1985 SC 111. In this case it was held that an appeal is a continuous lis and a change in law pending appeal has to be taken into account. He has also submitted that under Proviso to Sub-clause (5) of section 100 CPC the Court has power to hear the appeal on any other substantial question of law not formulated by it, if it is satisfied that it involves such question. In support of hts contention he has cited the case of Kshitish Chandra Purkait v. Santosh Kumar Purkait AIR 1997 SC 2517 and Panchugopal Barua v. Umesh Chandra Goswami AIR 1997 SC 1041. In AIR 1997 SC 2517 (Supra) it has been held that under Proviso Sub-clause (5) of section 100 CPC, for permitting to raise new plea the High Court has to be satisfied that the case involves substantial 'question of law' and not a mere ' question of law'. The reason for permitting the substantial question of law to be raised, should be recorded by the Court. It is implicit there from, that on compliance of the above, the opposite party should be afforded a fair or proper opportunity to meet the same. It is not any legal plea that could be raised at the stage of second appeal. It should be a substantial question of law.
10. In the case of AIR 1997 SC 1041 (Supra) entertaining second appeal on new plea of availability of protection under section 60 (b) of the Easements Act was held to be not proper.
11. That when the Court has power to raise a substantial question of law that should be applied in this case because Issue No. 6 framed by the trial court which dealt with the comparative advantages and disadvantages of personal necessity was framed on the basis of no pleadings. He has referred to para 3 of the plaint wherein it is only pleaded that the suit shop is reasonably required by the respondent for his personal use and occupation and that in his statement on Oath no where he has stated anything about comparative advantage or disadvantage. That findings on this issue are based on no evidence and no pleadings. It is a substantial question of law to be formulated. That issue No. 2 was framed in the following manner:
'Whether the plaintiff has no locus standi to bring this suit? OPP'
12. This issue was decided wrongly because in the notice it was held that there was no valid attornment.
13. The counsel appearing for the respondent has controverted these pleas by stating that all these issues have been confirmed by the appellate Court and in the ' memo of appeal 12 substantial questions of law were framed and out of so framed substantial questions of law four are pertinent to meet the argument advanced by the counsel for the appellant and they are formulated questions of law No. 5,7,11, and 12. The Court had considered issue No. 5, 11 & 12 and found them questions of fact but Ld. Counsel (Mr. Nanda) again wants to rake up the settled controversy by showing them as substantial questions of law. This Court had heard the learned counsel for the parties at length and vide order dated 17-5-1996 formulated only question No. 7 from the memo of appeal as substantial question of law and all others as questions of fact. In terms of Sub-clause (5) of section 100 CPC this court has to hear the appeal on the questions so formulated. However, the counsel admits that the Court has the power to hear for reasons to be recorded, the appeal on any other question of law, if it is satisfied that the case involves such questions. It is therefore, evident that the Court may if it comes to a finding that the question has to be formulated it may hear on any substantial question of law excluding which were proposed by the appellant in the memorandum of appeal and rejected after hearing the parties. The appellant neither challenged that order (dated 17-5-96) before any competent forum nor filed any review petition in terms of 0.47 CPC and now after a gap of more than l1/2 years it does not lie in his mouth to reopen such question. The counsel has drawn the support from the law laid down by the Apex Court in AIR 1997 SC 1041, AIR 1997 SC 2517 (Supra) and in case Sonubai Yeshwant Jadhav v. Bala Govinda Yadav, AIR 1983 Bom 156. The ratio of the judgments of AIR 1997 SC 1041 and AIR 1997 SC 2517 (Supra) has been discussed above, whereas in AIR 1983 Bom 156 (Supra) it has been held that where the Court fails to spell out substantial question of law while admitting the appeal, the appeal does not fail on that ground and the Court can formulate such questions at later stage. It has also been held that no second appeal lies in matters which arise out of complaints about appreciation of evidence.
14. Section 11 (h) of the Act only commands that there should be an issue where the house or shop is reasonably required by the landlord either for purposes of building or rebuilding, or for his own occupation or for the occupation of any person for whose benefit the house or shop is held. However, explanation to this section expects of a Court that while determining the reasonableness of the occupation of the shop or house, regard shall be had to the comparative advantage or disadvantage of the landlord or the person for whose benefit the shop or house is held or for the tenant. This is a statutory requirement. Issue had to be raised when there was such a plea and in this case the required issue were framed as far back as on May 9, 1981. The evidence was led and two Courts have concurrently decided them. At this stage this plea has no relevance. In support of his contention, the learned counsel has cited the case of Rahman Jeo Wangnoo v. Ram Chand, AIR 1978 SC 413 wherein it has been held that Proviso to Section 11 (h) of the J & K Houses and Shops Rent Control Act containing explanation mandates the Court to consider whether eviction of tenant from part of premises is to be ordered so as to substantially satisfy reasonable requirement of landlord. Even in the absence of a specific pleading under proviso Court has to act in compliance with the mandate and give a finding.
15. Regarding the reconsideration of issue No. 2 as involving a substantial question of law, it has been argued in rebuttal that both the Courts have held that the appellant has not only paid the rent to the respondent but also made an application before the Rent Controller for fixation of the fair rent as well as admitted that the respondent had received the compensation for a portion of the shop in question which was acquired while widening the road.
16. Lastly, it is contended that application made under Order 41 Rule27 CPC is cryptic, ambiguous and cannot be entertained. It does not fall within the ambit of Rule 27. The existence of ' any other substantial cause' as is being pressed under Clause ( b ) of the said rule by the opposite counsel as a plea of Irrelevance because the alleged business of running 'Guest House' has no bearing with the business being run in the shop which is totally a different business. The delay in making the application has not been explained and nowhere any averment has been made as to how the appellant acquired the knowledge of the existence of Guest House in question. It is not even faintly adumbrated in the application that there was exercise or due diligence to find out this fact on the part of the appellant but despite that it could not be made known. The counsel further contends that in the case of Kasturi Lal v. Brij Lal 1988 Kash. L J 668 this Court had held that on concurrent findings of fact the interference by the High Court on the findings of fact regarding personal necessity of the landlord were held to be pure question of fact and no interference was required under section 100 CPC even if the findings were erroneous. It was also held in that case that for the production of additional evidence under Order 41 Rule 27 CPC there must exist sufficient grounds for allowing such an application. That such an application can be made only after establishing the exercise of due diligence that such evidence was not within his knowledge or could not after the exercise of due diligence be produced by him at the time when the decree appealed against was passed. Concluding his arguments, it is submitted that bare allegation that 'substantial cause' exists for making the application the fruits of long drawn litigation cannot be denied to the respondent who filed this suit in 1974.
17. After considering the respective contentions of the counsel for the parties, it is gathered that substantial questions of law regarding comparative personal necessity or attornment in favour of the landlord cannot be reopened which after hearing the counsel for the parties on 17-5-96 were found as questions of pure facts. The appellant thereafter had acquiesced on such findings and only idea dawned when on 9-9-97 application under Order 41 R 27 was made for the production of additional evidence. In the application made under Order 41 R CPC it was required from the appellant to make a specific statement as to how with due diligence he could not find out the existence of the Guest House as well as running of such Trade and business therein. The Town of; Katra is not a big City like Delhi or Bombay where such a fact remains an hidden affair. Undoubtedly, the Court has the power to hear the parties on any other substantial question of law not earlier formulated by it, but the power is circumscribed to review its earlier findings. No plausible explanation is coming forth as to how the appellant has now woken up to raise such pleas after sleeping Over them for 1 1/2 years. As a scrambled egg cannot be unscrambled, likewise findings that these controversies hovered around questions of fact cannot be reagitated to make them as substantial questions of law. Mr. Nanda, the learned counsel for the appellant cannot derive any benefit from the principles settled in the cases reported in AIR 1997 SC 2517 and AIR 1997 SC 1041 (Supra). Rather, the Hon'ble Supreme Court in the case of Syed and Company v. State of Jammu Kashmir 1995 Supp ( 4 ) SCC 422 had disallowed the production of such evidence which had found no place in the pleadings. This order was made while rejecting the application made under 0. 41 R 27 CPC.
18. On this view of the matter, the contentions raised by the learned counsel for the appellant for framing of additional issues as well as calling the additional evidence are not acceptable.
19. At this stage, the learned counsel for the respondent has argued that under sub Clause ( 5 ) of section 100 CPC, the appeal has to 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. After contending so the counsel has referred the question which as a substantial question of law framed by the Court on 17-5-1996. The question is;
'Whether a Wasidar can mortgage, sell or in any way transfer the land leased to him or the building erected on such land, without the permission of the competent authority? And Whether any such transaction, without such permission, is void and cannot be taken cognizance of by any court?'
20. It is argued further that the case does not involve such a question as from the plain reading of para 2 of the plaint it became clear that the respondent herein had averred that appellant had paid the rent to him as he attorned in his favour. The only issue on such pleadings that had arisen was that without making 'Nazool Department' as % party, the suit could not proceed and that issue was of fact and accordingly decided. There is no pleading to the effect that Bodh Raj (original owner) was a 'Wasidar' and he could not sell the property. This plea has been taken for the first time in the memo or appeal by stating that he being a 'Wasidar' and under- para 35 of the Wasidar Rules he could not transfer the suit shop. To nullify this contention it is stated that Wasidari Rules do not apply to the Town of Katra as they have been made applicable only in Jammu City. Udhampur, Mirpur and Srinagar. Nowhere, in the plaint it is stated that the 'Wasidar' had sold the property. This argument finds support from the colour and contours of Elan No. 10 of 1976 Bk known as 'Wasidar Rules' wherein it is provided that they were made applicable only to the cities of Jammu and Srinagar and Town of Udhampur and Mirpur ( now in Pak Occupied area ). Till today, they have not been made applicable to the Town of Katra. The Naib Tehsildar. who has appeared before the trial court as a witness has categorically stated that the suit shop is not a Nazool Property. Neither the Nazool Departments was impleaded as a party in the proceedings nor it came forward to contest the suit. The Courts below had also concurrently held on the facts of the case that Nazool Department was not a necessary party. Rather, the suit was allowed to proceed without impleading it.
21. On such a factual matrix of the case it is held that the above stated substantial question of law so formulated does not arise in the case. There is substance in the arguments advanced by the counsel of the respondent. On these findings, there is found no force in this appeal which is accordingly dismissed. Keeping in view the facts and the circumstances of the case, the appellant herein is allowed three months time to vacate the shop in question.