Himachal Pradesh High Court
Jan Mohammad And Others vs Hem Raj And Others on 6 December, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No.479 of 2017.
.
Judgment reserved on : 01.12.2017.
Date of decision: 6th December, 2017.
Jan Mohammad and others .....Plaintiffs/Appellants.
Versus
Hem Raj and others ....Defendants/Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 No For the Appellant s : Mr.Sanjeev Kuthiala, Advocate.
For the Respondents : Nemo Tarlok Singh Chauhan, Judge.
The plaintiffs are the appellants, who presented a suit on 23.04.2010 which was instituted before the learned trial Court on 01.05.2010 seeking specific performance of agreement dated 10.05.1983. The parties shall be referred to as the plaintiffs and defendants.
2. Shorn of all un-necessary details, the plaintiffs filed a suit for specific performance on the allegations that land comprised in Khewat No.8min, Khatauni No.10, Khasra Nos. 459, 532 and 534, kitas-3, measuring 6-8-9 bighas, situated in Muhal Dugrain, Hadbast No.5, Patwar Circle Kanaid, Tehsil Sundernagar, District Mandi, H.P. was recorded in the ownership of the defendants and in possession of the plaintiffs as mortgagees and the said entries were wrong and liable to be 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 2 corrected. It was averred that earlier Khasra Numbers of the suit land were 660, 709 and 713, Kitas-3, measuring 6-3-9 bighas but after the .
consolidation, the Khasra Numbers had been changed and the area of the land had also increased. It was further averred that earlier the suit land was in possession of the father of the plaintiffs i.e. Sakhi Mohammad as mortgagee for a consideration of Rs.200/- and predecessor-in-interest of defendants, Shri Ralla Ram and Shri Amar Nath, sons of Shri Durgu Ram, were the owners/mortgagors and after the death of Sakhi Mohammad in the year 1976, the plaintiffs possessed the suit land as mortgagees. It was also averred that Shri Ralla Ram and Shri Amar Nath (aforesaid) had entered into an agreement to sell with respect to the suit land for a consideration of Rs.27,400/- and out of this Rs.7,000/- had been paid as part payment of sale consideration to the aforesaid persons in the presence of witnesses and written agreement to this effect was also executed. It was further averred that plaintiffs had paid the remaining sale consideration to the aforesaid persons on 25.05.1983, 28.08.1983, 12.10.1983 and lastly on 26.12.1983 after obtaining proper receipts. It was also averred that the plaintiffs could not obtain the receipt of amount of Rs.4,500/- which was paid on 28.08.1983, but the payment of entire sale consideration amount had been proved by the last receipt issued by the vendors on 26.12.1983. Lastly, it was averred that the plaintiffs were in possession of the suit land as vendees since 10.05.1983 and were always ready and willing to perform their part of the contract, but the defendants had filed an application for redemption of the suit land in the Court of Sub Divisional Collector, Sundernagar, District Mandi, by taking undue advantage of the wrong entries.
::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 33. It was averred that the relationship of the parties as mortgagors and mortgagees came to an end on 10.05.1983 when the .
land was agreed to be sold for a sale consideration of Rs.27,400/- to the plaintiffs. The defendant were requested by the plaintiffs to execute sale deed in their favour, but instead of honouring the terms and conditions of the agreement dated 10.05.1983, they have denied even the signatures of the vendors on the agreement as well as receipts issued by them to the plaintiffs. Defendant No.2, who is son of late Ralla Ram and nephew of late Amar Nath, has shown his ignorance regarding signatures of his father on the original General Power of Attorney which had been executed by him in his favour and also showed ignorance qua signatures of Amar Nath on the 'Vakalatnama'. It was further averred that the cause of action arose to the plaintiffs only on 29.12.2008 when defendant No.2 made a statement on oath and denied the agreement and again on 07.01.2009 when he was cross examined in the redemption proceedings and denied the receipt of sale consideration amount and execution of agreement on 10.05.1983 and also on 13.04.2010 when the defendants finally refused to admit the claim of the plaintiffs.
4. The contesting defendants filed joint written statement wherein preliminary objections were taken to the effect that the suit was time barred, limitation, enforceable cause of action and the Court having no jurisdiction to entertain the suit. On merits, it was contended that the entries qua the suit land were correct and it was denied that their predecessors-in-interest had entered into an agreement to sell with the plaintiffs qua the suit land on 10.05.1983. It was averred that the plaintiffs were no doubt in possession of the suit land, but as mortgagees and not ::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 4 as vendees. It was further contended that there were no relationship of vendors and vendees between the parties and, therefore, the suit has .
rightly been dismissed.
5. Replication to the written statement of the defendants was filed by the plaintiffs wherein they reasserted and reaffirmed the averments made in the plaint and denied all the contrary averments made in the written statement.
6. issues:-
"1.
r to On 29.06.2013, the learned trial Court framed the following Whether the revenue entry qua the suit land wherein the plaintiffs have been recorded as mortgagees and the defendants as mortgagors are wrong, illegal, null and void?
OPP.
2. Whether Sh. Ralla Ram and Sh. Amar Nath, predecessors-
in-interest of the defendants had executed agreement to sell dated 10.05.1983 with the plaintiffs qua the suit land, as alleged? OPP.
3. Whether the plaintiffs have paid the entire remaining amount to Sh.Ralla Ram and Sh.Amar Nath, predecessors-in-interest of the defendants on 25.5.1983, 28.8.1983, 12.10.1983 and 26.12.1983 as per the terms and conditions of the agreement to sell dated 10.5.1983, as alleged? OPP.
4. Whether the plaintiffs are entitled for decree for specific performance of contract dated 10.5.1983? OPP.
5. Whether the suit of the plaintiffs is within limitation? OPP.
6. Whether the plaintiffs have no enforceable cause of action to file the present suit? OPD.
7. Whether this Court has no jurisdiction to try and adjudicate the present suit? OPD.::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 5
8. Relief."
7. After recording evidence and evaluating the same, the .
learned trial Court dismissed the suit and the appeal filed against the said judgment and decree of the learned trial Court met with the same fate in the learned first appellate Court which dismissed the appeal on 31.08.2017.
8. It is against these concurrent findings recorded by the learned Courts below that the plaintiffs have filed the instant appeal mainly on the ground that the findings recorded by the learned Courts below are perverse being based upon clear misreading and misappreciation of the pleadings as well the evidence on record.
I have heard the learned counsel for the appellants-plaintiffs and have also gone the material available on record.
9. What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:-
"26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 6
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a .
way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English - International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8 "8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 710. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon .
it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and r entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
10. What is 'perverse' has further been considered by this Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:-
"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 8
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material .
or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
11. What is 'perversity' recently came up for consideration before the Hon'ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-
"8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 9
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532) .
"10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and
2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of ::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 10 the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law .
framed by the High Court are not substantial questions of law.
Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts.
To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
'103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or ::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 11
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
.
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
This Court has also dealt with other aspects of perversity.
15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal ::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 12 and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court."
.
12. Adverting to the facts, it may be observed that this Court heard detailed arguments on behalf of the plaintiffs on 22.11.2017 and was not even inclined to issue notices to the opposite side, the learned counsel for the appellants-plaintiffs prayed for adjournment and the matter was adjourned to 29.11.2017. However, on the said date, none appeared on behalf of the appellants-plaintiffs and this Court proceeded to pass the following orders:-
"Despite repeated calls, none has put in appearance on behalf of the appellants. In an ordinary course, the appeal ought to have been dismissed for want of prosecution, however, in the interest of justice, matter is adjourned.
List on 30.11.2017.
13. On 30.11.2017, the learned counsel for the appellants was again heard, however, noticing that the Court was not inclined to issue notices, he again sought adjournment and consequently the case was adjourned to 01.12.2017. Even today, this Court has heard the detailed arguments and is not inclined to issue notices for the simple reason that the plaintiffs have sought specific performance of agreement dated 10.05.1983 for which the suit as mentioned above was instituted after nearly 27 years on 23.04.2010.
14. Even assuming for the sake of arguments that the agreement was infact executed between the parties on the said date and further assuming that no date had been fixed for performance of the contract, could the suit have been filed after 27 years, that too, when ::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 13 during the interregnum the defendants had filed an application for redemption of the suit land clearly denying therein their relationship of .
vendors and vendees and setting up the relationship of mortgagors and mortgagees. The answer to this question is found in Article 54 of the Limitation Act, which reads thus:
"A mere reading of Article 54 of the Limitation Act would show that if the date is fixed for performance of the agreement, then non-compliance with the agreement on the date would give a cause of action to file suit for specific performance within three years from the date so fixed.
However, when no such date is fixed, limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that the defendant has refused the performance of the agreement."
15. The case at hand admittedly does not fall in the first category of Article 54 of the Limitation Act because as observed supra, no date was fixed in the agreement for its performance. The case would thus be governed by the second category viz. when the plaintiff has a notice that performance is refused. (Refer:R.K. Parvatharaj Gupta versus K.C.Jayadeva Reddy (2006) 2 SCC 428, Gunwantbhai Mulchand Shah and others versus Anton Elis Farel and others (2006) 3 SCC 634, Rathnavathi and another versus Kavita Ganashamdas (2015) 5 SCC 223, Madina Begum and another versus Shiv Murti Prasad Pandey and others (2016) 15 SCC 322).
16. Obviously, such notice could be actual or constructive.
However, in this case, as noticed above, plaintiffs had both actual and constructive notice that the performance of the contract had been refused when the defendants filed an application for redemption of the suit land ::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 14 and claimed the relationship between the parties to be that of mortgagors and mortgagees not that of buyers or sellers, vendors and vendees and .
prospective sellers or prospective buyers.
17. Therefore, in the given facts and circumstances of the case, the learned Courts below committed no irregularity much less illegality in dismissing the suit as time barred and, consequently, the findings so recorded by them cannot be held to be perverse in light of the law already cited above.
18. The learned counsel for the appellants-plaintiffs would then argue that the presumption of truth was then attached to the agreement to sell under Section 90 of the Indian Evidence Act as it was proved to be more than 30 years old. There can be no quarrel with the aforesaid proposition, but it does not lead the case of the plaintiffs any further. This Court has already proceeded with the assumption or rather presumption that the agreement is valid. It is only that its enforceability held to be time barred without rendering any findings of its enforceability.
19. The learned counsel for the appellants would then try to back upon Section 53-A of the Transfer of Property Act by claiming that on account of the part performance of the contract, he was in possession of the land and, therefore, the suit for specific performance should have been decreed. I really wonder how such a plea is available to the appellants-plaintiffs when it is more than settled that the equitable doctrine of part performance can be used as a shield and not as a sword.
No suit on the basis of part performance can be filed and it can only be used to defend and protect one's possession. (Refer: Probodh Kumar Das and others versus Dantmara Tea Co. Ltd. and others AIR 1940 ::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 15 Privy Council 1, Biswabani Pvt. Ltd. versus Santosh Kumar Dutta and others (1980) 1 SCC 185.
.
20. There is no factual foundation laid before the learned trial Court and moreover such pleas have not even been taken before the learned first appellate Court and cannot, therefore, be permitted to be urged, for the first time, before this Court.
21. It is otherwise more than settled that the appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law. Meaning thereby, the pure findings of fact remain immune from challenge before this Court in second appeal. It shall be apt to refer to three Judges Bench decision of the Hon'ble Supreme Cour t in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs (2001) 3 SCC 179 wherein it was observed as follows:
"15......The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."
22. What would be the substantial question of law was thereafter considered in para 12 of the judgment, which reads thus:
"12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means - of having ::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 16 substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or .
consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase "'substantial question of law" as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-
"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-
::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 17"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 principles or that r the plea raised is palpably absurd the question would not be a substantial question of law."
23. Finally, in paragraph 14, the Hon'ble Supreme Court laid down the guidelines on the test of as to what is the substantial question of law, which reads thus:
"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely 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. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."::: Downloaded on - 08/12/2017 23:04:09 :::HCHP 18
24. The findings recorded by the learned Courts below are based on the correct appreciation of the pleadings and evidence and are pure .
findings of fact which are immune from challenge in second appeal.
25. No question of law much less substantial question of law arises for consideration in this appeal.
26. Consequently, I find no merit in this appeal and the same is dismissed. Pending application, if any, also stands disposed of.
th
r (Tarlok Singh Chauhan )
6 December, 2017. Judge.
(krt/GR)
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