Ram Kishan v. Kanwar Inderjit Singh

6. This order of eviction was challenged in appeal before the Ld. Rent Control Tribunal (hereinafter “RCT”) in R.C.A No. 317/81 titled Ram Kishan Vs. Kanwar Inderjit Singh, wherein the RCT vide order dated 5th May 1982, allowed the appeal and dismissed the eviction petition under Section 14(1)(k) of the DRC Act, on the ground that the tenant had deposed that they were willing to pay misuser charges till July, 1982, within the next 4 months. It was also recorded in this order that the findings of the first ld. ARC concerning misuser under Section 14(1)(k) were not disputed before this RCT and it was conceded at the bar to that effect. A statement was also recorded. The operative portion of the said order reads as under: “(15) For these reasons given above, I set aside the impugned order and accept the three appeals. Instead it is directed that the appellant will pay to the respondent or deposit in the trial court the misuse chares in case of Ram Kishan Rs.7234.67, in case of Sohan Lal Rs.2055.63 and in case of Shanker Lal Rs.3079.30 within four months from today or stop misuse within the same stipulated time. In default, the appellants shall be liable to be evicted. (16) When the respondent come to know of any misuse charges for the future, he shall inform the appellant about the misuse charges and within one month, appellant shall remit the same to the respondent or deposit the same in the trial court, or within the said one month stop misuse. In default, the appellant would be liable to be evicted. If the respondent accepts these deposits and does not deposit the same with the Land and Development Office, then the petition shall be deemed to have been dismissed. If at any stage the Land and Development office puts an tentative date that misuse shall not be permitted the respondent shall inform the appellant and they shall stop the misuse within one month. In default, they shall be liable to be evicted. Announced and dictated in the presence of the appellant and the respondent.”

7. A second appeal was preferred by the landlord against the order of ld. RCT. Unfortunately, the matter remained pending before the High Court for 22 years and came to be decided on 14th December, 2004 wherein in SAO No. 251/82 titled Kanwal Inderjeet Singh v. Ram Kishan, a Ld. Single Judge of this Court remanded the matter back to the ld. ARC for a fresh decision. The said order reads as under: “This appeal is directed against the order dated 5th May, 1982, of the Rent Control Tribunal in Suit No.317/1981, whereby the learned Tribunal has allowed the appeal and dismissed the eviction petition under Section 14(i)(k) of the Delhi Rent Control Act. Counsel for the parties have drawn my attention to the office order No.2/83, L&DO/24(3)/75-CDN, dated 12th January, 1983, whereby the Land and Development Office has made concessions as regards the use of premises inasmuch as certain nonresidential activities have been permitted in residential areas. In item no.92 thereof, washing, dyeing and dry cleaning have been permitted in the premises on the conditions that the tenant/landlord resides in the same premises and area does not exceed 300 square feet. Since there is no finding of any of the courts below whether this circular applied to the premises in question or not, it is a clear case that the matter should be remanded to the Additional Rent Controller to re-decide the issue in the light of the above circular as also in the light of any subsequent notifications that may have been issued. The orders of the Additional Rent Controller and the Rent Control Tribunal are set aside. The matter is remanded to the Additional Rent Controller. With this SAO 251/1982 stands disposed of. The parties are directed to appear before the Additional Rent Controller on 10th January,

2005. A copy of this order be given dasti to counsel for the appellant.”

8. Post the said remand, the ld. ARC in E-23/08/76 titled Kanwar Inderjeet v. Ram Kishan considered the matter afresh, and vide order dated 12th September, 2011, the eviction petition was dismissed.

9. In these proceedings before the ld. ARC, the L&DO again filed a report dated 25th October, 2008, which observed that the tenant was residing in the suit premises. This was challenged by the landlord by way of an application which was rejected by the ld. ARC vide order dated 10th May, 2010. The landlord had also sought appointment of a Local Commissioner which request was also rejected.

10. The eviction petition was finally dismissed, basis the reasoning that the L&DO had not raised any misuse charges/compensation since last 25 years after 1983, hence, the misuse had become condonable. The reasoning of the ld. ARC is as under:

11. This order of the ld. ARC was again challenged before the ld. RCT in RCT No. 29/2016 titled Kanwar Inderjeet Singh v. Sh. Ram Kishan. The ld. RCT reversed the findings of the ld. ARC and allowed the appeal and directed eviction. The same reads as under:

12. Thus, the RCT directed eviction of the tenant as the tenant was not willing to stop the misuser. The said order of the RCT is impugned in this appeal. Submissions

13. Mr. J.P. Sengh, ld. Sr. Counsel appearing on behalf of the tenant, submits that the ld. RCT has completely erred in law. He submits that under Section 14 of the DRC Act, if the Court holds that there is any misuse by the tenant, an opportunity has to be given to the tenant to remove the said deficiency and it is only thereafter that eviction can be resorted to. He relies upon the judgment of the Hon’ble Supreme Court in Dr. K.Madan v. Smt. Krishnawati and others, (1996) 6 SCC 707 wherein the Supreme Court has made observations in respect of the scheme of Section 14 as below: “The first opportunity to the tenant is given when the notice is served on him by the landlord and the second opportunity is given when a conditional order under Section 14(11) of the Act is passed directing the tenant to pay the amount by way of compensation for regularisation of user up to the 'date of stopping the misuser and further directing stoppage of unauthorised user. The continued unauthorised user would give the paramount lessor the right to re-enter after the cancellation of the lease deed. As already noticed, the DDA is insisting on stoppage of misuser.”

14. Mr. Sengh submits that the L&DO’s report which was issued in 2008 clearly showed that there was no misuse and in any event, even if there was misuse, the tenant had been depositing the misuser charges. Further, under the latest Capital’s Master Plan for Delhi 2021, notified on 7th February, 2007 vide S.O. No. 141 (hereinafter “Master Plan”), the suit premises has been declared as a colony for mixed land use, and dry-cleaning and laundry facilities have been held to be permissible in residential areas, thus the initial discrepancy if any has also been made out by the tenant. He further submits that going by the judgment in Dr. K.Madan (supra), there is no misuser of the suit property, as, since 1983 the L&DO has not sought any misuser charges. Since the L&DO is the lessor of the premises, which would be the Government for the purposes of determining misuse in terms of Section 14(1)(k), there is no misuse and the petition is liable to be dismissed.

15. He further submits that the impugned order has erred in following the earlier observations of the first Ld. ARC in the order dated 8th February, 1979, as the same had culminated in the final order dated 5th May 1982, which has been set aside by the learned Single Judge of this Court vide the order dated 14th December, 2004. Therefore, he submits that there is a clear question of law and the same ought to be decided in favour of the tenant.

16. On the other hand, Ms. Kajal Chandra, ld. counsel appearing for the landlord, has firstly pointed out that in reply dated 12th October, 1976, the tenant categorically states that the zonal plan itself has made it commercial and he is using it for his business and commercial purposes. Ms. Chandra, also refers to the final order of the RCT passed on 5th May, 1982 wherein on the basis of all these facts, the RCT had set aside the eviction order, accepted the appeals and had given an opportunity to the tenant to pay the misuser charges. Even in this order, it is repeatedly recognized that the use of the suit property is for commercial purposes. Therefore today, the tenant cannot argue that he is living in the said premises because it is the admitted position that he was using it for commercial purposes.

17. Ms. Chandra further relies upon the findings of the ld. ARC in the order dated 8th February, 1979. She submits on the strength of the order dated 8th February, 1979, the ARC has clearly come to the conclusion that the premises can only be used for residential and not for any other purposes. The said order of the ARC dated 8th February, 1979, having not been disturbed, holds ground. She also highlights the fact that L&DO had sought to re-enter the suit property as recorded by the ld. RCT in the order dated 15th April,

1981. Therefore, the ld. RCT has concluded that eviction order is valid and legal and the tenant did not state in his statement that he is prepared to stop the misuser. Hence the eviction order was upheld.

18. Ms. Chandra, ld. Counsel, also urges the Court that the office order No.2/83, L&DO/24(3)/75-CDN, dated 12th January, 1983 (hereinafter “1983 Notification”) cannot come to the benefit of the tenant as it not retrospective. Reliance is placed on Bikramjit Singh v. UoI, 1980 Rajdhani Law Reporter 366, referred in the order dated 15th April, 1981 of the RCT as well, to state that the tenant cannot rely upon the Zonal Development Plan to change the user and the lease deed is the relevant document.

19. In any case, she submits that even condonation under Item 99 of the 1983 Notification requires the tenant to be residing in the premises. She relies upon the order dated 22nd December, 2014, wherein the RTI response has been obtained by the landlord from the Health Officer, Karol Bagh Zone, MCD, that no one is residing in the premises. The RTI being now part of the lower court’s record and having not been challenged, no argument to the contrary can be accepted. She thereafter relies upon the following judgments to support her contention that the 1983 Notification or subsequent Zonal Development Plans or Master Plans are not relevant to the present case: • Ajai Pal Singh v. State of U.P. [Civil Appeal No. 5738-5739 of 2021, decided on 23rd September, 2021]: a decision concerning the Land Acquisition Act, 1894, where it was held that the benefit of a greater compensation amount for land acquisition determined in 1991, cannot accrue to land acquisitions undertaken in 1976; • Rajender Bansal and Ors v. Bhuru (Dead) Through LR & Ors. (2017) 4 SCC 202: where during the pendency of a suit for possession and termination of tenancy, the area was declared as an urban area covered by the DRC Act. However, it was held that the law was crystallized as on the date of institution of the suit and the Civil Court’s jurisdiction would continue, as opposed to the jurisdiction of the Rent Control Tribunal under the DRC Act; • Munshi Ram & Anr. v. UOI & Ors. (2000) 7 SCC 22: to support the position that two dates which would be relevant for eviction on misuser, are: first, when the first notice was served and second, when the order under Section 14(11) was passed.

20. She further submits that the ration card etc. which was issued for the suit premises in favour of the tenant cannot be considered to be proof of residence inasmuch as for there to be a dwelling house, there needs to be proper kitchen and toilet facilities, which admittedly do not exist in the present suit premises.

21. Mr. J.P. Sengh, ld. Senior Counsel, in rejoinder relies upon the judgment in Manohar Lal v. Narain Das & DDA, 1982 RLR 41 to argue that the procedure under Section 14(1)(k) entails two steps: the first order is passed under Section 14(1)(k) and thereafter notice being issued to the authority concerned i.e. L&DO in this case. If misuser is there, then there are two options to the tenant. One to stop the misuse or second, to pay the misuser charges. In the present case, the misuser charges have been paid by the tenant. Thereafter, the L&DO has not issued any notice for payment of misuser charges after 1982, post which the misuser has been condoned by the 1983 Notification. He also relies upon the said judgment to state that the order of eviction under Section 14(1)(k) only becomes final when eviction is determined and when only payment of compensation is directed without finality on eviction or permission of future misuser, the eviction application is not determined finally. Thus, the misuser cannot be ground for eviction in the present case and the order dated 8th February, 1979 had merged with the order dated 15th April, 1981, which was set aside. Analysis & Findings

22. The question in this second appeal is whether the impugned order dated 14th January, 2020, directing eviction of the tenant, warrants any interference or is liable to be upheld.

23. The present appeal is the sixth round of litigation which the landlord has been compelled to undergo to seek eviction and obtain possession of his property. The admitted fact in this matter is that the suit premises is being used for a dry-cleaning shop since almost 50 years. The submissions made on behalf of the tenant are primarily twofold: • That since inception the premises is being used as a shop and the same was with the consent of the landlord; and • The subsequent circulars, notifications, Zonal Development Plan as also reports of the L&DO would show that the running of the shop has been clearly condoned by the L&DO and no misuser charges have been claimed thus. Thus, as on date there is no misuser.

24. The question that arises is whether the misuser firstly existed and secondly, whether the misuse was condoned and, if so, the effect thereof on the eviction petition.

25. As to whether misuser exists or not, it is notable that the original order dated 8th February, 1979, passed by the Ld. ARC, clearly came to the conclusion that there was misuse. This fact is not even being disputed by the tenant. The photographs placed on record clearly show that the drycleaning shop is being run from the suit premises. The report of Deputy L&DO dated 25th October, 2008 is curious to say the least. The fulcrum of the tenant’s argument is based on this report and the alleged changes in the Zonal Development Plan, which permitted commercial user in this premises “if the person is residing in the premises”. Even taking the tenant’s case at its highest that there has been a change in the Zonal Development Plan where misuser can be condoned, this Court is of the opinion that the mere fact that the misuser can be condoned or regularized can only be a reason for the L&DO not to re-enter the suit premises. As per the lease deed, any misuser can lead to re-entry. In fact, the L&DO sought to re-enter the suit premises in this case, for which misuser charges were paid. Any subsequent change in the Zonal Development Plan cannot have the effect of nullifying the original lease deed itself, unless there is express communication by the L&DO regularising the usage. Mere tacit waiver or non-charging of misuser charges, would not be sufficient in such cases.

26. This is supported by the decision in Edward Keventers v. Union of India, AIR 1983 Del 376, by a ld. Single Judge of this Court, where unauthorized constructions on grant land, contrary to the terms of the grant given by the Government, were being condoned/regularized for two decades by the L&DO on payment of damages. An argument that such condonation in itself would amount to waiver of the lessor-Government’s right of forfeiture, was rejected. It was held that the condonation of breaches is a discretionary measure and the stand to defer civil consequences of default is permissible because the revocation of lease was held to be in the discretion of the Government.

27. Admittedly, the conditions in the lease deed have not been amended. The L&DO’s unambiguous affidavit and status report makes it adequately clear that it has not condoned the misuser permanently. The commercial use of the premises has not been regularized by any communication given by the L&DO to the landlord. The order of the High Court by which the matter was remanded back to the ld. ARC merely directed the ARC to consider whether the 1983 Notification would apply to the premises in question or not, and for the ld. ARC to re-decide the issue in light of the said notification.

28. In any event, the Court notes the reasoning of ld. ARC, that some industries including dry-cleaning are mentioned at serial no. 6 of Notification No. S. O. 928 (E) dated 16th August, 2004, and the street where the premises in question is located, is permitted for mixed user. Even taking this circular and the subsequent mixed user as being permissible, at its highest, the suit premises in question could at best be used as a dry-cleaning shop if the tenant also had a residence in the suit premises. The shop in question is a 20 sq. metre shop on the ground floor of the building. There is hardly any space in the shop. It is merely a counter with a shelf at the back for hanging clothes. The tenant is clearly not residing in the said premises. The photographs of the shop are shown as below:

29. A perusal of the above photographs, clearly, shows that there is business being operated from the said suit premises. The report of the Deputy L&DO, to the contrary, thus, does not deserve to be believed by this Court. An RTI query by the landlord to the Deputy Health Officer, Karol Bagh Zone has also clearly stated as under:- “NO. DHO/KBZ/2011/1473 Dated:- 28.11.11 To, Sh. Kanwar Inder Jit Singh 20/47 First Old Market West Patel Nagar New Delhi 110008 Subject: Reply to CRTI application received in this office on 18-11-2011 and registered in ID No. 527 for seeking information under RTI Act, Reply:-

1. No one is residing in premises no. Z-39, West Patel Nagar, New Delhi.

2. This premise is being used for Dry Cleaning Shop under name and style M/S Uttam Dry Cleaners. Under Central Right to Information Act-2005, you may file an appeal with in 30 days, with the first appellate Authority under RTI Act “Deputy Commissioner, Karol Bagh Zone, Municipal Corporation of Delhi, Room No.202, Zonal Building, D. B. Gupta Road, Anand Parbat, Karol Bagh, Delhi-110005. Deputy Health Officer Karol Bagh Zone”

30. The said RTI query was also considered in the impugned judgment and the ld. RCT had observed as under:-

31. Be that as it may, the written statement of the tenant, dated 2nd May, 1979 to the eviction petition in Suit No. 607 of 1976 titled Kanwar Inderjit Singh v. Ram Kishan, unequivocally pleaded as under:-

32. The written statement of the L&DO in these proceedings also clearly pleaded as under:- “WRITTEN STATEMENT ON BEHALF OF THE LAND & DEVELOPMENT OFFICER IN REPLY TO NOTICE DATED 7.4.1979 ISSUED BY THE HON’BLE COURT. Sir, The answering party submits as under:- The property known as Z-37 to 40 West Patel Nagar, New Delhi was leased out to Smt. Parkash Kaur W/o. Shri Sampuran Singh and Shri Sampuran Singh S/o. Shri Sabh Singh and stands re-entered on account of breaches of misuse i.e. for contravention of clause 1(vi) of the lease deed. The heirs of the Ex-lessee has since applied for compromise. The breaches of misuse can only be regularised temporarily on payment of charges which will be intimated to the heirs of Ex-lessee in due course or Hon’ble Court. As the land use of the premises is for residential purpose hence it cannot be regularised permanently. Moreover, it is not permitted under Master Plan/Zonal Plan.”

33. From the above two written statements it is clear that the tenant denies that the suit premises are residential and in fact claims that the suit premises is commercial in nature. The tenant also places reliance on an inspection report dated 25th October, 2008 by the L&DO to argue that the tenant is also residing in the premises. The extract of the said affidavit filed by the Deputy L&DO is set out below:-

34. In this regard, the Court notes that some submissions have been made by the tenant to the effect that the original order dated 8th February, 1979 under Section 14(1)(k) has merged into the order dated 15th April, 1981, under Section 14(11), and therefore after remand by the High Court, the original order cannot be relied upon for the purpose of holding misuse. Reliance is also placed by the tenant on Manohar Lal(supra), as stated above. This contention is completely misplaced, inasmuch as the question of applying Section 14(11) would arise only when the Court has come to the conclusion that there is misuse under Section 14(1)(k). Even the 1983 Notification and the Zonal Development Plan which are referred to in the order of remand, do not permit complete commercial use of the premises in the absence of a mixed use i.e. residential-cum-commercial use. Thus, the examination on remand was for the limited question in respect of the tenant’s compliance with the lease deed’s condition in the light of the 1983 Notification and the Zonal Development Plan; not a re-adjudication of the original misuser by the tenant. Upon remand by the High Court, the ld. ARC merely reconsidered whether the eviction petition is to be allowed or dismissed in the light of the order dated 8th February, 1979, and the 1983 Notification and Zonal Development Plan. No evidence was led again before the ld. ARC after remand except the production of those documents. In fact, in the order of the ld. ARC dated 14th May, 2008 in Suit No. E- 68/06/76, the ARC agreed with the landlord that since the said notifications were public documents, no further evidence was required to be led. It held that the case is to be decided only in the light of subsequent notifications and there is no direction for leading any additional evidence. Even in Manohar Lal (supra), the Court clearly held that under Section 14(11) of the DRC Act, if the tenant agreed to stop misuser, further question of determining compensation would not arise. This lends no support to the tenant in the present facts where the tenant still continues to misuse the premises. In fact, in Kewal Kishan Ahuja v. Jagdeep Singh, 214 (2014) DLT 716, it was held by a ld. Single Judge of this Court that once misuser is determined in the proceedings under Section 14(1)(k) and the same is not challenged, there is finality on misuser and the proceedings under Section 14(11) are on the basis that misuser is not permissible.

35. Therefore, in the light of pleadings and the legal position, this Court is of the opinion that subsequent circulars or the 1983 Notification or Zonal Development Plan, which may permit condonation or regularization cannot support the tenant’s case in the petition under Section 14(1)(k) of the DRC Act, as the misuser continues and has not been stopped. This view has been taken in Union of India v. Dev Raj Gupta, AIR 1991 SC 93, where the lease had been entered into in 1931 for the premises. By a master plan issued by the Delhi Development Authority (hereinafter “DDA”) in 1962, the area where the said premises was located was allowed to be used for commercial purposes. In its observations, the High Court herein had held that from 1962 onwards, there was no need to apply for conversion under the lease deed as the master plan would automatically allow commercial use. The Hon’ble Supreme Court rejected this observation and held that conversion could not be presumed statutorily. It held as under:

36. Similarly, in Sant Lal v. Ram Laxman Gupta, 2013(2) RCR(Rent) 625, when the DDA refused to condone misuser despite a policy resolution being in discussion, whereby the DDA had proposed that a change could be possible in the said area from residential to commercial purposes, a ld. Single Judge of this Court held that:

37. With regard to the submission of the tenant that they have paid misuser charges and therefore may continue to run their business in the suit premises without eviction, the judgment in K. Madan (supra) has been relied upon. This judgment however, related to a case where the L&DO sought re-entry in the premises. The premises was initially given on rent for residential-cum-commercial purposes, however eventually, the tenant stopped residing in the premises and only continued its use for his clinic. The L&DO in its reply in the proceedings under Section 14(11) stated that the compensation may be paid for past misuse and future misuse must be stopped. Accordingly, the ARC in this case, directed the tenant to pay misuser charges for past misuse and ordered eviction if the misuser was not stopped. Therefore, in those facts, the Hon’ble Supreme Court upheld the order of the ARC directing the tenant to stop misuser and pay compensation, to avoid eviction. The Hon’ble Supreme Court also observed that in case the L&DO itself waives its right of re-entry/cancellation of lease, the order under Section 14(1)(k) may direct payment of compensation instead of eviction, which did not happen in that case. Contrarily, in the present case the suit premises was only capable of being used as a residential premises as per the lease deed. Moreover, the L&DO even in the proceedings under Section 14(11), has clearly stated that the question of regularization/condoning of the breach permanently would not arise. The misuser has been held way back in 1979 and till date the tenant continues to use the suit property for a dry-cleaning shop. The tenant has not agreed to not use the same for a commercial purpose, as recorded in the order dated 15th April, 1981 also and has just paid misuser charges till 1982 without stopping misuser thereafter. He has had adequate opportunities to stop the misuser but since inception he has continued to argue that commercial use is permissible.

38. Even as per the 1983 Notification/Zonal Development Plan, at best, mixed use would be permissible. The tenant is clearly not residing in the premises. Thus, the misuser has continued even till date. In these facts, the judgment in K. Madan (supra) would not come to the aid of the tenant. In fact, applying the ratio of K. Madan (supra), would mean that the L&DO’s stand in his written statement in Suit No. 607 of 1976, required the tenant to stop misuse, which he admittedly did not. The relevant extract of the said judgment is as below:

39. This is also supported by the decision of a ld. Single Judge of this Court in Pushpa Rani Jaggi v. Dwarka Dass, 2008(1) RCR (Rent) 40, holding that merely permitting temporary regularization of breaches on payment of misuse charges does not imply final compounding of the misuse, especially when the L&DO has clearly denied permanent regularization.

40. Further reliance is placed by the tenant on M.C. Mehta v. Union of India [W.P.(C.) 4677 of 1985, decided on 29th September, 2006] as also on the order passed by the Ld. ARC dated 12th September, 2011, to argue that small shops measuring not more than 20 sq. metres, such as dry-cleaning businesses would be allowed to continue business for the time being, even in residential areas. The same cannot be relied upon by the tenant in defence to a petition under Section 14(1)(k) of the DRC Act, as the issue in MC Mehta(supra) concerned unauthorized constructions and misuser in violations of master plans, environmental laws, etc. The said judgment does not extend the protection to tenants, who are already facing allegations of misuse. Reliance on the same by the tenant is completely unfounded.

41. At this stage, this Court must reiterate that as held by the Hon’ble Supreme Court most recently in Municipal Committee, Hoshiarpur v. Punjab State Electricity Board [Civil Appeal No. 9651 of 2003, decided on 19th October, 2010], the right to a second appeal under Section 100 of the Civil Procedure Code, 1908, is a substantive statutory right and the conditions in the said Section have to be strictly fulfilled to decide the appeal. Therefore, a substantial question of law and not a mere question of law is sine qua non and the second appeal cannot lie on the ground of erroneous findings of fact based on appreciation of relevant evidence. In Sugani v. Rameshwar Das & Ors., AIR 2006 SC 2172, it was held that:

17. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact. It is true that the lower appellate court should not ordinarily reject witness accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal, when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible. One drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.

18. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey MANU/SC/0448/1976: AIR1976SC830 held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.”

42. Similarly, in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors., AIR 1999 SC 2213, it was held that:

43. Therefore, merely because the High Court in second appeal could reach a different conclusion would not give rise to a substantial question of law, as also held in Gurmail Singh v. Rajinder Singh, AIR 2003 P&H 336.

44. In view of the above submissions and analysis, it is clear to this Court that the tenant has enjoyed the suit premises in question for at least more than 50 years. The suit premises is a property located in West Patel Nagar, which is one of the prime areas in Delhi. The tenant had adequate notice to stop the misuser but has failed to do so. The tenant is clearly not residing in the premises and has refused to stop the misuser. This is also not a case of commercial-cum-residential use. Thus, this Court is of the opinion that the eviction order is valid and justified. No substantial questions of law arise in the second appeal and the same is dismissed. The amounts lying deposited with the Registrar General of this Court shall be immediately released to the landlord through counsel.

PRATHIBA M. SINGH JUDGE NOVEMBER 22, 2021 dk/MS