[2025:RJ-JP:23939] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 22/2025 1. Smt. M.k. Thomas W/o Shri P.k. Thomas, Resident Of House No. 159/5 Ajmer Club Compound Through Shri Vijendra Singh S/o Late Shri Sultan Singh Power Of Attorney Holder Smt. M.k.thomas W/o Shri P.k. Thomas Resident Of Shastri Nagar, Ajmer. 2. Shri Vijendra Singh S/o Late Shri Sultan Singh, Power Of Attorney Holder Smt. M.k. Thomas W/o Shri P.k.thomas Resident Of Shastri Nagar, Ajmer. ----Appellants Versus Ajmer Club, Ajmer Through President Ajmer Club, Collectory Ke Pass, Ajmer. ----Respondent For Appellant(s) : Mr. Jai Raj Tantia For Respondent(s) : HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 30/06/2025 1. Instant Second Appeal is preferred by Appellant Defendants aggrieved from judgment dated 29.08.2024 in Civil Regular Appeal No. 98/2009 passed by Learned Additional District Judge No. 4 Ajmer, whereby on an appeal preferred by Respondent Plaintiff, the suit of Plaintiff was decreed for eviction from suit property. 2. Learned counsel for Appellants Defendants while placing reliance upon grounds of appeal have submitted that the plaintiff respondent filed a civil suit seeking decree of eviction against appellant No.1, who is tenant of plaintiff respondent. He further [2025:RJ-JP:23939] (2 of 8) [CSA-22/2025] submitted that the grounds of eviction were considered by Learned Trial Court and after considering the grounds issue number 1 was decided against the plaintiff and the trial court has refused to pass a decree of eviction but the trial court has passed a decree for permanent and mandatory injunction. He further submitted that the plaintiff has filed an appeal before the District Judge which was considered by Learned Additional District Judge, who without any cogent reason has set aside the findings of issue number 1 and passed a decree of eviction against the appellant defendant. He further submitted that the grounds of non-user is not proved as appellant defendant No.1 has visited her home in Kerala for a temporary purpose, but she is residing and occupying the suit property. He also submitted that the plaintiff has not able to prove that present appellant defendant is not using the premises which was rented to use as a residential house. He further referred the grounds and evidence on record and submitted that the appellate court has committed perversity by not following the settled legal position in drawing a conclusion on Issue No. 1. At last, he submitted that the grounds give rise to substantial question of law as suggested in Para ‘G’ of memo of appeal as this is a case of reversal of finding and liable to be considered under Section 100 of CPC. 3. Heard learned counsel for appellant and perused the material placed on record. 4. The respondent Plaintiff ‘Ajmer Club’ has filed a civil suit on 29.09.2000 in a Court of Civil Judge (Junior Division) North, Ajmer and transferred to Learned Additional Civil Judge (Junior Division), No. 5, Ajmer for disposal. The plaintiff has made an averment that [2025:RJ-JP:23939] (3 of 8) [CSA-22/2025] the property mentioned in Para 1 was let out to Defendant 1 but in 1991 Defendant No.1 has moved to her native place Kerala and since then she is not using and occupying the rented premises. The plaintiff has further averred that an earlier suit no. 277/1991 was filed and after benefit on the first default, suit was disposed and now defendant has committed second default. As per averment defendant no. 1 has sublet premises to defendant no. 2 and defendant no. 2 is residing in Shastri Nagar and presently he has parked old vehicles in suit property. The plaintiff has prayed for eviction and also for mandatory and prohibitory injunction. Defendants have filed joint written statement and admitted tenancy over the suit property but pleaded that defendant is using and occupying the suit property as a tenant and regularly making payment of rent. The defendants further pleaded that civil suit no. 277/1991 was decided against the plaintiff on 17.12.1997 and the judgment was affirmed in appeal. The defendant has denied the allegations made in the plaint. 5. On the basis of the pleadings of the parties, eight issues were framed. The Plaintiff has examined PW1 Pukharaj Jain and exhibited 13 documents whereas DW1 Brijendra was examined and 15 documents were exhibited on behalf of defendants. The Trial Court has decided Issues No. 1, 2, and 3 against the Plaintiff but decided Issues No. 4 and 5 in favor of the Plaintiff. Issues No. 6 and 7 were decided against the defendants. The Trial Court has refused to grant Decree of Eviction against the defendants but passed a Decree of Prohibitory and Mandatory Injunction against the defendants. [2025:RJ-JP:23939] (4 of 8) [CSA-22/2025] 6. Dissatisfied plaintiff has preferred an appeal under section 96 of CPC before learned District Judge and same was transferred to learned Additional District Judge No. 4 Ajmer. The appellate court after considering the arguments of both the parties has reversed the finding on issue number 1 but affirmed findings on issue number 2. As a result passed a decree of eviction on ground of non user. Aggrieved from the judgement of appellate court instant second appeal is preferred by appeal and defendants. 7. A perusal of material placed on record clearly indicated that Defendant No. 1, Smt. M.K. Thomas, is tenant of the suit property and she has not appeared as a witness to contradict the claim of plaintiff. The Defendant No. 2, Vijendra Singh, who claimed himself to be power of attorney holder of Smt. M.K. Thomas, has appeared as DW-1. The discussions on issue No. 1 clearly indicate that the original tenant has not turned up in witness box and the person who was occupying premises has turned up as power of attorney holder. Here in this case, the suit property is a residential property and the appellate court has observed that earlier suit No. 277/1991 was filed on 16.05.1991 and essential condition under Section 13 (l) and (j) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 about minimum 6 months prior to filing of suit, for non-user were not fulfilled. The issue was well answered by First Appellate Court, therefore, the findings recorded in previous suit is not binding in the instant case. 8. Here in this case, it is mandatory for defendant no.1 to appear as witness in witness box and re-iterate that she is not only occupying the premises but presently residing in the premises and only for temporary purpose she visited her native place in [2025:RJ-JP:23939] (5 of 8) [CSA-22/2025] Kerala. The evidence on record clearly indicated that no whereabouts about respondent no.1 were disclosed in evidence of DW-1. It also fortified the evidence of PW-1 that since 1991, PW-1 has left the premises and handed over the possession to defendant no.2. Having considered the material placed on record, it is apparent that suit premises is neither occupied by Appellant defendant no.1 nor used by her as a tenant. Therefore, there is no perversity or illegality in the judgment passed by First Appellate Court. The judgment is in accordance with evidence on record and grounds does not give rise to any substantial question of law required to be formulated under Section 100 of CPC for consideration of Second Appeal by this Court. 9. Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a substantial question of law. Thus, the First Appellate Court is final court on facts and in second appeal normally cannot re-appreciate the evidence or facts. 10. Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd. AIR 1962 SC 1314, as under: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those [2025:RJ-JP:23939] (6 of 8) [CSA-22/2025] principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 11. Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the scope of Section 100 of CPC and summarised the law as under: 13. The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles. 13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction. 13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that: “At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; [2025:RJ-JP:23939] (7 of 8) [CSA-22/2025] (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the section is that the appeal shall be heard only on that question.” Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71 13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:- a) Not previously settled by law of land or a binding precedent. b) Material bearing on the decision of case; and (c) New point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. Therefore, it will depend on facts of each case. Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and Chandrabhan v. Saraswati 2022 SCC Online SC 1273. 16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 referring to various other cases held:- a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse. b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity. c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection. 12. In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC 405, Hon’ble Supreme Court explained the purpose of framing question of law in following manner: “a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question. b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon. c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.” [2025:RJ-JP:23939] (8 of 8) [CSA-22/2025] 13 Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following words:- “(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.” 14. In view of discussion made hereinabove, the instant second appeal preferred aggrieved from judgment dated 29.08.2024 in Civil Regular Appeal No. 98/2009 is hereby dismissed with pending application(s), if any. 15. No order as to cost. (ASHOK KUMAR JAIN),J PREETI VALECHA /80