Sabitri Chatterjee Vs. Debi Das Roy - Court Judgment

Excerpt:
civil - civil procedure code (cpc) - sections 100, 100(4) - second appeal - maintainability of - eviction suit filed by appellant landlord against respondent tenant on ground of reasonable requirement and bonafide need - dismissed by trial court - appeal - allowed on ground that appellant established her plea of bonafide personal need - second appeal - allowed by high court remanding matter to trial court and granting liberty to parties to amend their respective pleadings and to adduce further evidence - appeal to supreme court - sub section 4 of section 100 cpc mandates that where high court is satisfied that a substantial question of law is involved in any case, it shall formulate that question - since high court before disposing of second appeal did not frame substantial question of law as required by section 100, matter remitted back to high court to dispose of second appeal in accordance with law after complying with requirement of sub section 4 of section 100 - impugned judgment of high court set aside - order 41, rule 1: [d.k. jain & r.m. lodha, jj] imposition of costs - when justified-frivolous litigation - appellant insurance company after losing case in three forums below, filing slp in supreme court - leave to appeal granted but appeal ultimately found as without any merit costs quantified at rs.15,000 imposed on appellant company while dismissing appeal . insurance act (4 of 1938) section 64-um (2): object and intendment - appellant insurance company insured heavy vehicle owned by respondent - vehicle fell into a 300 feet deep ditch, due to which there was extensive damage to the vehicle - damage was surveyed by three licensed surveyors/loss assessors - third surveyor assessed the loss as rs 63,771 and appellant company offered this amount to respondent - respondent however claimed actual expenses said to have been incurred by him towards repair of truck plus interest paid by him to the bank for obtaining loan for repair - district consumer forum directed appellant company to pay rs 1,58,409 along with interest @ rs 12% p.a. - upheld by state commission as well as by national commission - held, although assessment of loss by approved surveyor is a pre-requisite for payment or settlement of claim of twenty thousand rupees or more by insurer, yet surveyors report is not the last and final word. it is not that sacrosanct that it cannot be departed from; it is not conclusive. the approved surveyors report may be basis or foundation for settlement of a claim by the insurer in respect of loss suffered by insured but such report is neither binding upon the insurer nor insured. - sub-section 4 of section 100 cpc mandates that where the high court is satisfied that a substantial question of law is involved in any case it shall formulate that question. no doubt the proviso to section 100 cpc does not take away the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.1. in these two appeals by special leave the appellant is the landlord of the premises in question which is located in new alipore in the city of calcutta. the appellant has impugned the judgment and order of the high court passed in second appeal no.415 of 1991 whereby the high court remanded the matter by its judgment and order dated 28.7.1998 granting liberty to the parties to amend their respective pleadings, and to adduce further evidence. the other appeal is preferred by the appellant against the order passed by the high court dismissing her review petition by order dated 7.8.2001.2. it is not necessary for us to refer to the facts in detail in view of the order we propose to pass.3. the appellant filed a suit for eviction being suit no.429 of 1984 against the respondent which was tried by the second court of learned munsif at alipore. eviction was sought on the ground of reasonable requirement and bona fide need of the appellant of the premises occupied by the respondent on the ground floor of the building owned by the appellant. the appellant is in occupation of the third and fourth floors of the building. according to her, she required the premises on the ground floor on account of her health condition, she having suffered an accident.4. by judgment and order dated 12.12.1998 the trial court dismissed the suit. against the order dismissing the suit the appellant preferred an appeal being t.a. no.15 of 1989 which was ultimately disposed of by the 7th court of learned additional district judge at alipore. by judgment and order dated 23.11.1990 the appeal was allowed, the suit was decreed and an order for eviction was passed against the respondent on the ground that the appellant had established her plea of bona fide personal need.5. the second appeal was preferred by the respondent before the high court which was registered as second appeal no.415 of 1991. the second appeal finally came up for hearing before a learned judge of high court of calcutta and by impugned judgment and order dated 28.7.1998 the second appeal was allowed and the matter remanded to the trial court as earlier noticed.6. the submission urged on behalf of the appellant before us is that there was really no question of law which arose for consideration of the high court. the finding of fact recorded by the appellate court as regards the bona fide personal need of the appellant was supported by evidence on record and therefore, there was no justification for the high court to set aside that finding. in any event, it was submitted, there was no justification for an amendment of the pleadings and recording of further evidence in view of the fact that the matters sought to be brought on record by way of amendment and additional evidence were already before the court and what was described as future developments were facts within the knowledge of the parties. we need not refer to the merit of the submissions urged before us by learned counsel for the appellant. however, we notice that the high court before disposing of the second appeal did not frame the substantial question of law as required by section 100 of code of civil procedure. sub-section 4 of section 100 cpc mandates that where the high court is satisfied that a substantial question of law is involved in any case it shall formulate that question. the appeal shall then be heard on the question so formulated leaving it open to the respondent to argue that the case does not involve such question. no doubt the proviso to section 100 cpc does not take away the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. in the instant case the learned judge has not formulated any question of law which require determination under section 100 cpc. this court in a series of decisions has insisted upon compliance with the mandatory requirement of sub-section 4 of section 100 cpc.7. in these circumstances we set aside the judgment and order of the high court and remit the matter to the high court to dispose of the second appeal in accordance with law after complying with the requirement of sub- section 4 of section 100.8. it will be open to the respondent to contend that a substantial question of law is involved in the second appeal, and for the appellant to controvert that plea. nothing said in this order should be construed as an expression of opinion on the merit of the case so as to prejudice the case of the parties.9. we notice that this suit was filed in the year 1984 on the ground of bona fide personal need and therefore, it merits a quick disposal. we have no doubt that the high court will, keeping in view the necessity and compulsions of the appellant, dispose of the second appeal as soon as possible. these appeals are accordingly, allowed with no order as to costs.10. since we are setting aside the judgment passed in the second appeal, the order passed in the review petition is also set aside.