FIRM SAGARMAL VISHNU BHAGWAN versus GAURI SHANKAR AND ORS.

Citation: [1988] SUPP. 3 S.C.R. 416 · Decided: 05-10-1988 · Supreme Court of India · Bench: R.S. PATHAK · Disposal: Case Allowed

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Judgment (excerpt)

A 
FIRM SAGARMAL VISHNU BHAGWAN 
v. 
GAURI SHANKAR AND ORS. 
OCTOBER 5, 1988 
B 
[R.S. PATHAK, C.J. AND S. NATARAJAN, J.) 
c 
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.· 
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 
def Pnce 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. 
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 
B 
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 d

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