NARSEE MONJEE INSTITUTE OF MANAGEMENT STUDIES

CIVIL PROCEDURE CODE

Rama Devi and Ors vs Ram Prakash and Ors

 
Petitioner:  Rama Devi and ors

Respondents: Ra, Prakash and Ors

Bench: M. Wahajuddin, J.

Date of Judgment: 25.07.1984

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SUBMITTED BY: PRASHUK JAIN, REGISTERATION NUMBER: 81011219032, B.A.LLB.

SUBMITTED TO.: Mr ANKIT SINGH, VISITING FACULTY (CPC)

Facts

Respondents filed a suit against the defendants (Motilal Rama Devi) and for their ejectment,
arrears of rent and mesne profit. The suit was filed on the allegation that the defendants were
wilful defaulters and a combined notice of demand and termination of tenancy has been given
and their tenancy stands terminated. The defendants argued no such notice was given to them.
Two notices were sent to the both the defendants the mother and the son. On the two notices
there is an endorsement of the postman dated 8-8-1970 that the addressee refused to accept
the notice. The defendants however stated that they were in different city on 8-8-1970 for the
mundan of the defendant son and it was not their fault they didn’t received the notice. The
first trial court gave judgement in favour of defendant and service of the notice is not proved
and granted a decree for Rs. 339/- as rent up to Aug. 1970. The plaintiff moves to first
appellate court which held that the notice was served and defendants are also liable to
ejectment. The defendant moves to high court to challenge the first appellate Court
judgement.

Issues

Whether notice dated 4-8-70 given by the plaintiffs has been served upon the defendants.

Whether the suit is maintainable under Section 100 of CPC

Rule (SECTION 100 of CPC): -

(1) Save as otherwise expressly provided in the body of this Code or by any other law for the
time being in force, an appeal shall lie to the High Court from every decree passed in
appeal by any Court subordinate to the High Court, if the High Court is satisfied that the
case involves a substantial question of law. (2) An appeal may lie under this section from
an appellate decree passed exparte. (3) In an appeal under this section, the memorandum
of appeal shall precisely state the substantial question of law involved in the appeal. (4)
Where the High Court is satisfied that a substantial question of law is involved in any

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 case, it shall formulate that question.(5) The appeal shall 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 : Provided that nothing in this sub-section shall
be deemed to take away or abridge 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.]

Arguments

The respondent argued that this matter cannot be considered by the second appellate Court
under Section 100 C.P.C because the new finding was a finding of fact. And the counsel
relied on 4 judgements which said if otherwise erroneous but based on appreciation of
evidence cannot be interfered with and that an inference also based and drawn on a finding of
fact will be a finding of fact.

The plaintiff argued that the suit should be allowed under Section 100 of CPC and the
defendant were not in Varanasi when the notice was served.

Ratio decidendi

Whether the suit is maintainable under Section 100 of CPC

The court allowed the suit and mentioned that If a finding of fact has been recorded by the
first appellate Court without any evidence that finding can be successfully challenged in
second appeal, because a finding of fact which is not supported by any evidence can be
questioned under Section 100, and in that connection, it may be said that the decree
proceeding on such a finding discloses a substantial defect or error in procedure.

Whether notice dated 4-8-70 given by the plaintiffs has been served upon the defendants.

Talking about whether the notice was served or not the hon’ble judge held that the mother got
a postcard way before the notice was served and it meant that the mundan was pre planned.
The hon’ble judge also stated that the appellant court made an error and misread the
evidence. The judge said Motilal evidence was enough to prove that they didn’t receive the
notice and the burden to prove was again was on the respondent which was not followed.

Judgement

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The judgement was given in the favour of the plaintiff and the hon’ble judge overturn the
judgment of the first appellate Court and decree of the first appellate Court directing the
ejectment of the defendant was set aside.