Kailash Chandra Vs. Vinod and ors. - Court Judgment

Excerpt:
- indian penal code, 1890.sections 307 & 324: [lokeshwar singh panta & b.sudershan reddy,jj] assault proof - appellant allegedly dealt sickle blow to deceased - testimony of eye-witnesses showed that sudden altercation ensued between appellant and deceased - no evidence to indicate any previous enmity between parties - single blow of sickle had been inflicted by appellant on back of deceased - incised wound allegedly inflicted by appellant - however opinion of doctor proved that deceased had not died due to direct result of said injury held, appellant is therefore liable to be convicted under section 324 of i.p.c., sentence of 3 years imprisonment reduced to period undergone by appellant considering mental agony suffered by him - 3. initially a question arose about the scope of the lpa and it was argued by shri chaphekar that the lpa is as good as first appeal. the learned single judge after considering the evidence led by the parties in details as well as the omission to examine one sharad agarwal has held that it is proved that the family of the plaintiff is growing in size. in this view of the matter i do not deem it to be a fit occasion for discussing the scope of lpa despite being alive to a good amount of post 1976 rethinking on the question of scope of appellate jurisdiction in general and that of intra-high court appeals in particular.a.g. qureshi, j.1. this is a letters patent appeal under clause 10 of the letters patent, being aggrieved by the judgment dated 16-8-1993 passed by hon'ble shri justice a. r. tiwari, in first appeal no. 11 of 1989 confirming the judgment and decree passed by the vi additional judge to the court of district judge, indore in c.o.s. no. 89-a of 1986.2. the facts leading to this appeal, in short, are that the suit house no. 30, bade sarafa, indore originally belonged to the joint family of deceased tejpal and deceased gulzarilal. a partition was effected on 25-2-1953 and the suit house fell to the share of gulzarilal. the present respondents are the sons of late gulzarilal and the appellant is the son of tejpal. a suit for eviction was filed against the appellant by the respondents in respect of the portion occupied by the appellant, initially treating the appellant as a licensee but later on as a tenant. as such the fact that the respondents are the landlords and the appellant is a tenant was the common ground before the lower court.the court after trial granted decree under section 12(l)(e) of the m. p. accommodation control act (hereinafter called the act).in favour of the respondents holding that they bona fide need the accommodation for their use, aggrieved by which first appeal no. 11 of 1989 was filed which was decided by the judgment under appeal. hence this l.p.a.3. initially a question arose about the scope of the lpa and it was argued by shri chaphekar that the lpa is as good as first appeal. on the other hand shri oberai argued that the scope of the lpa is limited. however, in view of the judgment in the case of smt. asha devi v. dulkhi sao and anr., air 1974 sc 2048, we are of the view that the scope of the lpa is not only limited to question of law but also to the facts of the case and the court can make a reappraisal of the evidence. but in the same judgment the supreme court has expressed the opinion that although it is open to the high court to review even the findings in a letters patent appeal from the first appeal heard by a learned single judge, but generally speaking the letters patent bench would be slow to disturb the concurrent findings of fact of the two courts below. but there is no doubt that in an appropriate case a letters patent bench hearing an appeal from a learned single judge of the high court in a first appeal heard by him is entitled to review even the findings of fact. in view of the aforesaid, it has to be held that the letters patent bench is, although empowered to review the question of fact decided by the learned single judge in appropriate cases, but generally the letters patent bench would be slow in interfering with the concurrent findings of fact recorded by the two courts.4. in the light of the above let us look at the contentions raised by the appellant in this appeal. the first challenge to the judgment of the learned single judge is on the ground that the learned single judge has erred in holding that the availability of 11 rooms is insufficient for a family of 13 members, out of which eight are children. this point was also raised before the learned single judge. the learned single judge after considering the evidence led by the parties in details as well as the omission to examine one sharad agarwal has held that it is proved that the family of the plaintiff is growing in size. the size of the family, three brothers, their wives and eight children, is quite large and cannot be accommodated in just five rooms on the second floor and four rooms on the third floor. relying on an earlier judgment of this court the learned single judge has also held that it will be wholly illegal and unreasonable for a tenant to expect from the landlord or the members of his family to squeeze themselves and to live uncomfortably than to seek the eviction. the learned single judge while confirming the decree of the lower court on this ground has also taken into consideration the fact that the suit was filed in the year 1978 and since then the children have become adults and, therefore, it cannot be said that the family consists of only eight children and 3 couples. the court has also taken into consideration the change in the living habits, wherein people require rooms for study, dining, drawing room and bed rooms separately. as such we find no such infirmity in the finding recorded by the learned single judge on this point which may persuade us to interfere in the matter.5. the second point about lack of pleading about insufficiency of accommodation has been raised before us. this point also has been considered and decided by the learned single judge. the learned single judge has rightly held that as the family is related to each other very closely there was no element of surprise for want of a specific pleading. in our opinion the learned single judge has rightly held that the specific averment on this point is not fatal to the case of the plaintiff in the instant case. the position of the rooms available and the members of the family already known to the respondents and, therefore, they could not argue that the fact of insufficiency of accommodation was held back by the plaintiffs. actually the case of the plaintiffs from the beginning was that they have the accommodation for their residence but they need the eviction of the appellant for their own use. this follows that the aforesaid accommodation was not sufficient for their use and evidence was led by both the parties for and against this plea. therefore, on this point also we are not inclined to disturb the concurrent finding recorded by the learned single judge and the lower court.6. as regards the non-examination of sharad kumar the learned single judge has discussed the evidence in detail and has rightly held that the non-examination of sharad kumar was not fatal to the case of the plaintiffs. we concur with the aforesaid view taken by the learned single judge.7. in the result after perusing the record, the statements of the witnesses, pleadings of the parties and the concurrent findings of the trial court and that of the learned single judge we are of the opinion that no interference is called for in this appeal and, therefore, this appeal does not deserve to be admitted for final hearing. the appeal filed by the appellant is, therefore, dismissed with no orders as to cost.m.w. deo, j.i have the advantage of perusing the opinion prepared by my learned brother. i am in respectful agreement that this appeal deserves to be dismissed in limine. my learned brother has discussed all the aspects of pleadings and evidence in this case and has arrived at the conclusion that the matter is concluded by concurrent findings of the learned district judge and the learned single judge. in this view of the matter i do not deem it to be a fit occasion for discussing the scope of lpa despite being alive to a good amount of post 1976 rethinking on the question of scope of appellate jurisdiction in general and that of intra-high court appeals in particular.