Himachal Pradesh High Court
Sita Ram vs Prema Wati And Others on 20 October, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 497 of 2004 .
Reserved on: 09.10.2023
Date of Decision: 20.10.2023
Sita Ram ...Appellant.
of
Versus
Prema Wati and others ...Respondents.
rt
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Romesh Verma, Senior Advocate with Mr. Sumit Sharma, Advocate.
For the Respondents : Ex-parte.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment & decree dated 5.7.2004, passed by the learned Additional District Judge, (Presiding Officer), Fast Track Court, Solan, District Solan, H.P., vide which the appeal filed by the appellant(defendant No. 1 before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 20/10/2023 20:39:46 :::CIS 2manner as they were arrayed before the learned Trial Court for convenience).
.
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking a declaration that the plaintiff is the sole legal heir/successor of Gulab Singh by virtue of the Will dated of 26.11.1991, executed by him in her favour and she is entitled to rt inherit his movable and immovable property. The defendants have no right, title or interest in the estate of Gulab Singh. A permanent prohibitory injunction for restraining the defendants from withdrawing any amount or any other security left by Gulab Singh from banks/institutions, alienating, disposing of or creating any charge on the immovable property of Gulab Singh was also sought. It was pleaded that the plaintiff is the only legal heir of Gulab Singh son of Sher Singh who was residing in Royal Hotel, Solan. The plaintiff is the daughter of Dila Ram brother of Gulab Singh. The deceased was unmarried and had brought up the plaintiff as his child. She was educated by the deceased and was married to Jagdish by the deceased. She was residing with the deceased. The deceased was happy with the service of the plaintiff and he used to treat her as his daughter. He executed a ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 3 Will in favour of the plaintiff at Chandigarh on 26.11.1991. The plaintiff took care of Gulab Singh and also performed his last .
rites. The plaintiff filed a petition seeking a probate/succession certificate in the Court of learned District Judge, Solan; however, the learned District Judge, Solan declined to issue the certificate on the ground that the matter involved intricate questions of of title, which can only be decided by a Civil Court. Hence, the suit seeking the relief mentioned above.
rt
3. The suit was opposed by filing a written statement denying the contents of the plaint. It was asserted that the plaintiff and defendants are legal heirs of Gulab Singh being the sons and daughters of Dila Ram, brother of Gulab Singh. The deceased had cordial relations with the parties and he was treating the plaintiff and defendants equally. It was admitted that the deceased had properties and businesses at various places. It was asserted that the Will is the result of forgery, fraud and undue influence. The deceased was not in a sound disposing state of mind. The plaintiff executed the Will in connivance of some persons. Therefore, it was prayed that the suit be dismissed.
::: Downloaded on - 20/10/2023 20:39:46 :::CIS 44. No replication was filed.
5. The learned Trial Court framed the following issues .
on 8.4.1997:-
1. Whether the plaintiff is only legal heir of deceased Gulab Singh, who had executed a valid Will in favour of the plaintiff? OPP.
of
2. Whether the defendants are threatening to withdraw the amounts and securities and plaintiff is entitled to the injunction as prayed for? OPP.
3.
4.
rt Whether the plaintiff has no cause of action? OPD.
Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD.
5. Whether this Court has no jurisdiction? OPD.
6. Whether the suit is not maintainable? OPD.
7. Relief.
6. The parties were called upon to produce the evidence and the plaintiff examined herself (PW-1), Ravinder Nath Sharma (PW-2), and Dev Raj (PW-3). The defendant examined himself (DW-1).
7. The Learned Trial Court held that the execution of the Will was duly proved. There were no suspicious circumstances surrounding the execution of the Will. There was no evidence to show that the defendants were serving Gulab Singh, hence issues no. 1 and 2 were answered in the affirmative, ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 5 issues no. 3 to 6 were answered in negative and the suit of the plaintiff was decreed.
.
8. Being aggrieved from the judgment and decree passed by the learned Trial Court, the defendant No. 1 filed an appeal, which was decided by the learned Additional District Judge, Presiding Officer (Fast Track Court), Solan, District of Solan, H.P. Learned First Appellate Court held that the deceased rt has immovable property located at Chopal. He had also movable property located at Solan. Therefore, the Court at Solan had jurisdiction. In any case, the lack of jurisdiction is not sufficient to set aside the decree passed by a Court unless there is a failure of justice. No failure of justice was shown in the present case.
There was no suspicious circumstance surrounding the execution of the Will. The execution and attestation of the Will were duly proved; hence the appeal was dismissed.
9. Being aggrieved from the judgment and decree passed by the learned First Appellate Court, the present appeal has been filed asserting that material issues were not framed.
Incorrect inferences and conclusions were drawn. The detail of movable and immovable property was not mentioned and the ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 6 provisions of Order 7 of CPC were not complied with. The suit was not properly valued for the purpose of Court fees and .
jurisdiction. The execution of the Will was not proved and it is surrounded by suspicious circumstances. Dev Raj was carried by the deceased from Solan and Pradeep Kumar was associated at Chandigarh. The deceased would have got the Will executed at of Solan and there was no reason for him to execute the Will at Chandigarh. This circumstance was not properly explained.
rt There were material contradictions in the testimonies of the witnesses. Therefore, it was prayed that the present appeal be allowed and the judgment and decree passed by learned Courts below be set aside.
10. The appeal was admitted on the following substantial questions of law on 11.5.2005:-
1. Whether the Civil Court at Solan had no territorial jurisdiction to try and decide the suit?
2. Whether the findings of the learned trial court as affirmed by the learned first appellate court are dehors the evidence on record?
11. I have heard Mr. Romesh Verma, learned Senior Advocate, assisted by Mr. Sumit Sharma, Advocate, for the appellant/defendant.
::: Downloaded on - 20/10/2023 20:39:46 :::CIS 712. Mr. Romesh Verma, learned Senior Counsel for the appellant/defendant submitted that the learned Courts below .
did not properly appreciate that the Court at Solan had no jurisdiction to hear and entertain the present suit. The immovable property was located at Chopal and the suit could have only been filed at Chopal and not at Solan. The judgment of passed by a Court having no jurisdiction is a nullity. Learned Courts below erred in holding otherwise. On merits, he rt submitted that the execution of the Will and attestation of the Will were not proved. Therefore, he prayed that the present appeal be allowed and the judgments and decrees passed by learned Courts below be set aside.
13. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
Substantial Question of Law No.1:
14. Learned First Appellate Court held that the immovable property of the deceased was located at Chopal;
however, the movable property was located at Solan and this was sufficient to confer the jurisdiction upon the Courts. This ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 8 cannot be sustained. Section 16(d) of CPC reads that the suit for determination of any right or interest in immovable property .
shall be instituted in the Court within the local limit of whose jurisdiction the immovable property is located. It was laid down by Andhra Pradesh High Court in Kamarsu Raja Row versus Kamarsu Rajaiah alias Rajeswara Rao 1963 (2) Andhra Weekly of Reporter 474 that existence of movable property within the jurisdiction of a Court shall not confer upon the jurisdiction rt upon it when the immovable property is not located within its jurisdiction. It was held:-
"4. The short question that arises for consideration is whether section 16, the Civil Procedure Code, applies to suits covering both immovable and movable properties. Since this controversy has to be resolved with reference to section 16 of the Civil Procedure Code, we will extract it here. Section 16 postulates :"subject to the pecuniary or other limitations prescribed by any law, suits- (a) for the recovery of immovable property with or without rent or profits, (b) for the partition of immovable property, (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, (d) for the determination of any other right to or interest in immovable property, (e) for compensation of wrong to immoveable property (f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate ; provided that a suit to obtain relief respecting, or compensation for wrong to, immoveable property held by or on behalf of the defendant may, where the relief sought can be entirely ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 9 obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate, or in the Court within .
the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business or personally works for gain. "
5. What we have to consider is whether section 16 should be restricted only to suits whose subject matter is only immovable property and its applicability is not extended to cases which include moveables also. The language of of this section does not seem to warrant the construction advanced by the learned counsel for the appellant. It looks to us that a Court within whose jurisdiction immovable properties are not situated cannot entertain a suit rt relating to those properties. The policy underlying this section seems to be that a Court which cannot render an effective judgment in relation to immovable properties could not entertain such suits. This intendment can be gathered clearly from sections 17 and 18, which deal with immovable properties. Section 19 deals with suits for compensation for wrongs to persons or moveables. This section shows that the situation of moveable property is not of much consequence in the context of the jurisdiction of a Court to entertain the suit.
6. We may now proceed to read section 20 on which reliance is placed by the learned counsel for the appellant as governing all actions which embrace both moveable and immovable properties. That section, in so far as it is of immediate relevancy, recites: "Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction- (a) the defendant or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 10 gam provided that in such case either the leave of the Court is given or the defendants who do not reside or carry on business or personally work for gain, as .
aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. "
7. It is clear from section 20 that it is controlled by the sections preceding it, viz. , sections 16 to 19, and it does not prevail over section 16, as argued by the learned counsel for the appellant. The scheme of these sections clearly establishes that sections 16 to 18 deal with suits of concerning immovable properties, while sections 19 and 20 bear on moveables or personal actions. That being so, we are of the opinion that the general rule embodied in section 20 that a Court within whose jurisdiction part of rt the cause of action has arisen is the Court in which the suit shall be instituted, is inapplicable to suits involving immovable property. Suits dealing with immovable property fall within the ambit of section 16, unless they are covered "by the proviso.
8. Of course, section 17 gives an option to the plaintiff to institute such suits in any of the Courts within whose jurisdiction the immovable property is situated, while section 18 provides for the eventuality of uncertainty as to the jurisdiction of Courts over immovable properties. We feel that a suit for recovery or partition of immovable property is not excluded from the purview of section 16, merely because it includes moveables. It takes in suits, the subject matter of which are both moveable and immovable properties. As we have already stated, the situs of moveable property is not of much significance as could be seen from the various provisions of the Code of Civil Procedure dealing with the pecuniary and territorial jurisdiction of civil Courts. Our conclusion, therefore, is that section 16 applies to cases concerning both moveable and immovable properties. It may be mentioned here incidentally that Order 2, rule 4, Civil Procedure Code, permits the joinder of a claim for moveable properties in suits for recovery of immoveable properties, of course, if ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 11 they are based on the same cause of action. Undeniably, a suit for the partition of moveable and immovable property is founded upon the same cause of action.
.
9. There is ample authority for this view of ours in decided cases. In Jairam Narayan v. Atmaram Narayan , (1880) I. L. R. 4 Bom. 482 it was held by West, J., of the Bombay High Court that the Court had no jurisdiction to hear a suit including a claim for immoveable property which lay outside the jurisdiction of the Court and the fact that the suit included a claim for moveable properties, which were of within its. jurisdiction did not entitle the plaintiff to sue in the High Court. It is true that it was clause 12 of the Letters Patent, 1865, that fell to be construed by the learned judge. In our opinion, that does not make any difference rt to the interpretation of section 16 of, the Civil Procedure Code." (Emphasis supplied)
15. A similar view was taken by the High Court of Orissa in Prativa Pattnaik versus State of Orissa 2001 (1) Orissa LR 601, wherein it was held:-
"Sec. 16 (d) relates to the determination of any other right to or interest in immovable property. In the present case, the plaintiff has sought a declaration that the property described in Schedule belongs to her and her husband jointly and, therefore, it can be said that such prayer is squarely covered Under Section 16 (d). Section 16 (f) relates to the recovery of the moveable property actually under distraint or attachment. If it is held that by search and seizure, the property is under attachment and prayer is made for recovery of such moveable property, there cannot be any doubt that Section 16 (f) is applicable. If the suit is required to be filed at the place indicated in Section 16, Section 20, C.P.C. would not be applicable as Section 20 itself starts with the clause "Subject to the limitations aforesaid", every suit shall be instituted in a Court within the local limits of whose jurisdiction, the cause of action, ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 12 wholly or in part, arises, Thus, where the matter is governed under earlier provisions including provision Under Section 16. C.P.C, Section 20, C.P.C. would not be .
applicable. Only where a suit is not required to be filed Under Section 16, C.P.C. or other provisions with which the present case is not concerned at all, the provisions tinder Section 20. C.P.C. may be taken resort to for the purpose of determining territorial jurisdiction. If a matter is covered under other provisions, it would not be covered Under Section 20, C.P.C. This is very clear in view of the of observation of the Supreme Court in the decision reported in A.I.R. 1963 Supreme Court, I (R. Viswanathan and Ors. v. Rukn-ul-Mulk Syed Abdul Wajit since deceased and others, etc.), where it was observed after referring to similar rt provisions contained in the Mysore Code of Civil Procedure, at page 16 :
"Undoubtedly, these rules deal with the territorial jurisdiction of Courts in respect of all suits other than those relating to immovable property or for recovery of moveable property under distraint or attachment..........."
Thus, in either view of the matter, it can be said that the Court at Cuttack did not have the territorial jurisdiction to deal with the matter. The appellant shall now take the return of the plaint from the trial Court and present the same before the appropriate Court having territorial jurisdiction. The appellant should take the return of the plaint from the trial Court on or before 25th April 2001."
16. Thus, the learned First Appellate Court erred in holding the fact that movable property was located within the Courts at jurisdiction will be sufficient to confer the jurisdiction upon the Courts at Solan when no immovable property was located at Solan.
::: Downloaded on - 20/10/2023 20:39:46 :::CIS 1317. The Learned First Appellate Court also held that there was no failure of justice and the judgment and decree could not .
be set aside on the ground of lack of territorial jurisdiction. This is a correct interpretation of the law. Section 21 of CPC reads as under:-
21. Objections to jurisdiction.-- (1) No objection as to the of place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity rt and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.
18. It is apparent from the bare perusal of the provisions that objection regarding the place of suing cannot be entertained by Appellate Court unless such objection was taken in the Court of first instance at the earliest possible opportunity ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 14 and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of .
justice. It was laid down in Walchand Nagar Industries Ltd. v.
Indraprastha Developers, 2013 SCC OnLine Bom 1283 : (2015) 3 Mah LJ 786 : (2015) 7 Bom CR 50, that before entertaining the objection regarding lack of territorial jurisdiction, three of conditions must be specified and a decree cannot be set aside unless there is a failure of justice. It was observed at page 826:-
rt "47. The aspect of territorial and pecuniary jurisdiction has been dealt with by the Apex Court in its decision in the case of Subhash Mahadevasa Habib v. Nemasa Ambasa Dharmadas, reported in (2007) 13 SCC 650. The Apex Court has held that the objection to the territorial and pecuniary jurisdiction is to be treated on par with section 21 of the Civil Procedure Code. It has further been held that taking note of the object of the amendment in the light of the law, as expounded by this Court, it would be incongruous to hold that section 21-A takes in only objection to the territorial jurisdiction and not to the pecuniary jurisdiction. It has been held that a decree passed by a Court lacking territorial or pecuniary jurisdiction does not automatically become void. At best, it is voidable, in the sense that it could be challenged in appeal therefrom, provided the conditions of section 21 of the Civil Procedure Code are satisfied.
48. In the decision of the Apex Court in R.S.D.V. Finance Co.
Pvt. Ltd. v. Shree Vallabh Glass Works Ltd., reported in (1993) 2 SCC 130, an objection regarding the territorial jurisdiction of the High Court at Bombay was raised. The learned Single Judge took the view that the Court at Bombay had jurisdiction to decide the case. The learned Single Judge passed a decree in favour of the appellant/plaintiff and ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 15 against the respondent/defendant for the recovery of money along with interest. The Division Bench of the High Court allowed the appeal and dismissed the suit. The matter was .
carried to the Apex Court. The Apex Court held that Sub-
section (1) of section 21 of the Civil Procedure Code provides for no objection as to the place of suing shall be allowed by any Appellate or Revisional Court, subject to the following conditions:
(i) that such objection was taken in the Court of first instance at the earliest opportunity;
of
(ii) that in all the cases where the issues are settled, then at or before such settlement of issues; and
(iii) that there has been a consequent failure of justice.
The Apex Court held that if the first two conditions are rt satisfied but, the third condition of failure of justice is not fulfilled. The Apex Court held that there is no failure of justice to the defendant by decreeing the suit by the learned Single Judge of the Bombay High Court, on the contrary, it would be totally unjust and a failure of justice to the plaintiff in case such an objection relating to jurisdiction is to be maintained, as allowed by the Division Bench of the High Court in its appellate jurisdiction.
Jurisdiction-Inherent
49. The question of jurisdiction as to the subject matter of the suit has been dealt with by the Apex Court in paras 31, 32, and 33 of its decision in the case of Harshad Chimanlal Modi v. DLF Universal Ltd., reported in (2005) 7 SCC 791. The said paragraphs are reproduced below:
"31. In Halsbury's Laws of England, (4th ed.), Reissue, Vol. 10; para 317, it is stated:
"317. Consent and waiver. -- Where, by reason of any limitation imposed by statute, charter, or commission, a Court is without jurisdiction to entertain any particular claim or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the Court, nor can consent to give a Court jurisdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled. Where the Court has ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 16 jurisdiction over the particular subject matter of the claim or the particular parties and the only objection is whether, in the circumstances of the case, the Court ought to .
exercise jurisdiction, the parties may agree to give jurisdiction in their particular case; or a defendant by entering an appearance without protest, or by taking steps in the proceedings, may waive his right to object to the Court taking cognizance of the proceedings. No appearance or answer, however, can give jurisdiction to a limited Court, nor can a private individual impose on a of judge the jurisdiction or duty to adjudicate on a matter. A statute limiting the jurisdiction of a Court may contain provisions enabling the parties to extend the jurisdiction by consent."
rt "32. In Bahrein Petroleum Co., this Court also held that neither consent nor waiver nor acquiescence can confer jurisdiction upon a Court, otherwise incompetent to try the suit. It is well-settled and needs no authority that "where a Court takes upon itself to exercise a jurisdiction it does not possess, its decision amounts to nothing." A decree passed by a Court having no jurisdiction is nonest and its validity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings. A decree passed by a Court without Jurisdiction is a coram non-judice."
33. In Kiran Singh v. Chaman Paswan, this Court declared:
(SCR p. 121) "It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction... strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of the parties. It is thus well established that a decree passed by a Court without jurisdiction is a nullity and its invalidity could be set up whenever and wherever it is sought to be enforced or ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 17 relied upon, be it at the stage of execution and/or even in collateral proceedings. A defect of jurisdiction strikes at the very authority of the Court to pass any decree and such a .
defect cannot be cured even by consent of parties. It has been held that neither consent nor waiver or acquiescence can confer jurisdiction upon a Court, otherwise incompetent to try the suit. A decree passed by a Court without jurisdiction is a coram non-judice.
The distinction between Territorial/Pecuniary and Inherent- Lacking of of
50. The law on the point of lack of inherent jurisdiction on one hand and the lack of territorial or pecuniary' 'jurisdiction on the other hand, can be summarized as under:
(i) A decree passed by the Court lacking territorial or rtpecuniary jurisdiction does not automatically become void; at the most, it becomes voidable, in the sense that it could be challenged in an appeal or revision on limited grounds.
(ii) A decree passed by a Court with a lack of inherent jurisdiction becomes null and void in law and its validity can be set up whether and whenever it is sought to be enforced or relied upon it at the stage of execution or even in the collateral proceedings.
(iii) The factors, like waiver, acquiescence, consent, estoppel, etc., are not at all relevant in the case of a decree passed by a Court with a lack of inherent jurisdiction; whereas, these factors are relevant where a decree is passed by a Court with lack of pecuniary and territorial jurisdiction.
(iv) The question of valuation of a suit or an appeal is closely interlinked to some extent with the question of payment of Court-fee and pecuniary jurisdiction of the Court, and the provisions relevant are sections 8 and 11 of the Suits Valuation Act, section 8 and 14 of the Bombay Court Fees Act, sections 24 and 8 of the Bombay Civil Courts Act, and section 21 of the Civil Procedure Code.::: Downloaded on - 20/10/2023 20:39:46 :::CIS 18
(v) The question of categorization or classification of a suit under the different provisions of the Bombay Court Fees Act, which may not have any bearing on .
the question of pecuniary jurisdiction of the Court, can independently be dealt with."
19. Similarly, it was held in Mantoo Sarkar v. Oriental Insurance Co. Ltd., (2009) 2 SCC 244: (2009) 1 SCC (Civ) 482:
(2009) 1 SCC (Cri) 738: 2008 SCC OnLine SC 1882 that before of allowing the objection regarding the lack of territorial jurisdiction, the Appellate Court has to ask itself whether the rt party had suffered any prejudice or a failure of justice has occurred or not. If no prejudice was caused or there was no failure of justice, the decree cannot be set-aside on the grounds of lack of territorial jurisdiction. It was observed at page 248:-
"18. The Tribunal is a court subordinate to the High Court. An appeal against the Tribunal lies before the High Court. The High Court, while exercising its appellate power, would follow the provisions contained in the Code of Civil Procedure or akin thereto. In view of sub-section (1) of Section 21 of the Code of Civil Procedure, it was, therefore, obligatory on the part of the appellate court to pose unto itself the right question viz. whether the first respondent has been able to show sufferance of any prejudice. If it has not suffered any prejudice or otherwise no failure of justice had occurred, the High Court should not have entertained the appeal on that ground alone.
19. We, however, while taking that factor into consideration must place on record that we are not oblivious of the fact that a decision rendered without jurisdiction would be coram non juris. Objection in regard ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 19 to jurisdiction may be taken at any stage. See Chief Engineer, Hydel Project v. Ravinder Nath (2008) 2 SCC 350 : (2008) 1 SCC (L&S) 940, wherein inter alia the decision of .
this Court in Kiran Singh v. Chaman Paswan AIR 1954 SC 340 was followed, stating: (Ravinder case (2008) 2 SCC 350 : (2008) 1 SCC (L&S) 940, SCC p. 361, para 26) "26. The Court also relied upon the decision in Kiran Singh v. Chaman Paswan [AIR 1954 SC 340] and quoted (in Harshad Chiman Lal case [Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC of 791], SCC pp. 804-05, para 33) therefrom: (Kiran Singh case [AIR 1954 SC 340], AIR p. 342, para 6) rt '6. ... It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, ... strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.' Though in the aforementioned decision, these observations were made since the defendants before raising the objection to the territorial jurisdiction had admitted that the court had the jurisdiction, the force of this decision cannot be ignored and it has to be held that such a decree would continue to be a nullity."
20. A distinction, however, must be made between a jurisdiction with regard to the subject matter of the suit and that of territorial and pecuniary jurisdiction. Whereas in the case falling within the former category, the judgment would be a nullity, in the latter it would not be. It is not a case where the Tribunal had no jurisdiction in relation to the subject matter of the claim. As a matter of ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 20 fact, the civil court had no jurisdiction to entertain the suit. If the Tribunal had the jurisdiction to entertain a claim petition under the Motor Vehicles Act, in our .
opinion, the court should not have, in the absence of any finding of sufferance of any prejudice on the part of the first respondent, entertained the appeal.
21. In Bikash Bhushan Ghosh v. Novartis India Ltd. (2007) 5 SCC 591: (2007) 2 SCC (L&S) 242 this Court has held: (SCC p. 599, para 17) "17. There is another aspect of the matter which of cannot be lost sight of. If the provisions contained in the Code of Civil Procedure are given effect to, even if the Third Industrial Tribunal, West Bengal rt had no jurisdiction, in view of the provisions contained in Section 21 of the Code of Civil Procedure, unless the respondent suffered any prejudice, they could not have questioned the jurisdiction of the court. In Kiran Singh v. Chaman Paswan [AIR 1954 SC 340] this Court held: (AIR p.
342, paras 6-7) '6. ... If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was "coram non judice", and that its judgment and decree would be nullities. The question is what is the effect of Section 11 of the Suits Valuation Act on this position.
7. Section 11 enacts that notwithstanding anything in Section 578 of the Code of Civil Procedure an objection that a court which had no jurisdiction over a suit or appeal had exercised it by reason of overvaluation or undervaluation, should not be entertained by an appellate court, except as provided in the section. Then follow provisions as to when the objections could be entertained, and ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 21 how they are to be dealt with. The drafting of the section has come in--and deservedly--for considerable criticism; but amidst much, that is .
obscure and confused, there is one principle which stands out clear and conspicuous. It is that a decree passed by a court, which would have had no jurisdiction to hear a suit or appeal but for overvaluation or undervaluation, is not to be treated as, what it would be but for the section, null and void, and that an objection to jurisdiction based of on overvaluation or undervaluation, should be dealt with under that section and not otherwise. The reference to Section 578, now Section 99 CPC, in the opening words of the section is significant. rt That section, while providing that no decree shall be reversed or varied in appeal on account of the defects mentioned therein when they do not affect the merits of the case, except from its operation defects of jurisdiction. Section 99 therefore gives no protection to decrees passed on merits, when the courts which passed them lacked jurisdiction as a result of overvaluation or undervaluation. It is with a view to avoid this result that Section 11 was enacted. It provides that objections to the jurisdiction of a court based on overvaluation or undervaluation shall not be entertained by an appellate court except in the manner and to the extent mentioned in the section. It is a self- contained provision complete in itself, and no objection to jurisdiction based on overvaluation or undervaluation can be raised otherwise than in accordance with it.
With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional court unless there was a consequent failure of justice. It is the same principle that has been adopted in Section ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 22 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99 CPC and Section 11 of the Suits .
Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to the jurisdiction both territorial and pecuniary as of technical and not open to consideration by an appellate court unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the rt District Court, Monghyr, should be treated as a nullity cannot be
22. Furthermore in determining as to whether a part of the cause of action has arisen within the territorial jurisdiction of the court vis-à-vis an appellate court a large number of factors may have to be taken into consideration. (See Ambica Industries v. CCE [(2007) 6 SCC 769] ."
20. A similar view was taken in Hindustan Petroleum Corp. Ltd. v. Chandulal Dipchand Kale, 2007 SCC On Line Bom 257 :
(2008) 3 Bom CR 897 : (2007) 5 AIR Bom R 443: 2007 AIHC 3406, wherein it was held at page 901:-
13. That apart, the question of jurisdiction is not always vital. The objection as to the place of suing may be considered within the ambit of section 21(1) of the C.P.C., 1908. In (R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd.), 1993 DGLS 95 : (1993) 2 SCC 130: A.I.R. 1993 S.C. 2094, the Apex Court observed:::: Downloaded on - 20/10/2023 20:39:46 :::CIS 23
"Objection as to the place of suing shall be allowed by the appellate or revisional Court subject to the following conditions:
.
(i) That such objection was taken in the Court of first instance at the earliest possible opportunity;
(ii) in all cases where issues are settled then at or before such settlement of issues;
(iii) there has been a consequent failure of justice."
14. In the present case though the first two conditions are satisfied yet, the third condition of failure of justice is not of fulfilled. There is hardly anything on record to say that due to the wrong place of suing the appellant was prejudiced in making out his defence. The objection cannot be entertained without satisfaction of the third rt condition along with the other two conditions, that the failure of justice is occasioned as a result of the wrong place of suing. In this view of the matter, the objection raised by the learned Counsel Smt. Anjali BajpaiDube, cannot be countenanced.
19. The learned advocate for the respondent has also relied on the decision in the case of Pathumma v. Kuntaian Kutty reported in (1981) 3 SCC 589: AIR 1981 SC 1683. In the said case, in para 3 after referring to section 21 of the Code of Civil Procedure, it is observed as follows:--
"In order that an objection to the place of suing may be entertained by an appellate or revisional Court, the fulfillment of the following three conditions is essential:
(1) The objection was taken in the Court of first instance.
(2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement.
(3) There has been a consequent failure of justice.
All these three conditions must co-exist."
::: Downloaded on - 20/10/2023 20:39:46 :::CIS 2421. In Ashok v. Ujwala, 2006 SCC OnLine Bom 1220 the Bombay High Court held that where the parties were .
represented by the Advocates and there was no reason to hold that they did not get full opportunity of hearing, there was no failure of justice to them. It was observed:-
"21. In the case of Hira Lal Patni v. Sri Kali Nath, reported in of AIR 1962 SC 199, it is observed in para 4 that it is well settled that the objection as to the local jurisdiction of a Court does not stand on the same footing as an objection rt to the competence of a Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition by enactments like section 21 of the Code of Civil Procedure. So the case of Hira Lal (supra) clearly shows that the distinction has to be made between objection as to the local jurisdiction of the Court to entertain the suit or proceeding and the case where there is an inherent lack of jurisdiction and all the cases cited by the learned advocate for the appellant are of the latter category.
22. In the case of R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Class Works reported in (1993) 2 SCC 130: AIR 1993 SC 2094, in para 7 and 8, it is laid down that all three conditions of section 21(1) of Code of Civil Procedure should be satisfied. Those conditions are; (1) that such objection should be taken in the Court of first instance at the earliest possible opportunity; (2) in all cases where issues are settled then at or before such settlement of issues; and (3) there has been a consequent failure of justice. In the case before Their Lordships, though the first two conditions were satisfied, the third condition of ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 25 failure of justice was not satisfied and therefore, Their Lordships refused to interfere. In the present case, the issue regarding the lack of territorial jurisdiction of the .
Family Court was raised for the first time when the matter was at the stage of argument. It is clear that in the issues framed at Exh. 6, there are no issues regarding territorial jurisdiction nor such an issue was raised in the written statement which was filed at Exh. 5. We have specifically asked advocate Shri. Kale-Patil, for the appellant as to what was the consequent failure of justice of but he was unable to satisfy us.
23. Admittedly, in this matter, the parties were represented by the advocates before the trial Court. There does not appear any reason to hold that the parties did not get a full rt opportunity of hearing. In para 8 of the R.S.D.V. Finance (supra), the Supreme Court observed that Their Lordships were clearly of the view that there was no failure of justice to the defendant decreeing the suit decreed by the learned Single Judge of the Bombay High Court, on the contrary, it would be totally unjust and failure of justice to the plaintiff in case such objection relating to jurisdiction was to be maintained as allowed by the Division Bench in its appellate jurisdiction. In this case, if we hold at this stage that the plaint/petition should be returned for proper presentation, the parties would be forced to approach another Court and to lead fresh evidence and then get the decision. It would be nothing but forcing both the parties to waste time, energy and money. So we are of the opinion that even though we have come to a conclusion that the Family Court, Aurangabad had no territorial jurisdiction to entertain the petition for the return of stridhan, still by not raising the objection regarding jurisdiction at the appropriate stage and in the absence of any failure of justice, we are not inclined to interfere with the order of the trial Court on the count of lack of territorial jurisdiction."::: Downloaded on - 20/10/2023 20:39:46 :::CIS 26
22. Thus, the learned First Appellate Court had rightly held that the objection regarding the lack of territorial .
jurisdiction cannot be taken during the appeal unless there is a consequent failure of justice and since no failure of justice was shown; therefore, the objection cannot be raised during the appeal.
of
23. Mr. Romesh Verma, learned Senior Counsel relied rt upon the judgments of Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791: 2005 SCC OnLine SC 1381,Chief Engineer, Hydel Project v. Ravinder Nath, (2008) 2 SCC 350: (2008) 1 SCC (L&S) 940: 2008 SCC OnLine SC 167 and Subhash Mahadevasa Habib v. Nemasa Ambasa Dharmadas, (2007) 13 SCC 650: 2007 SCC OnLine SC 379. However, none of these judgments applies to the facts of the present case. In Harshad Chiman Lal Modi (supra), the question was raised during the pendency of the suit itself and Section 21 did not apply. In Chief Engineer, Hydel Project (supra) the Court was concerned with the subject matter jurisdiction of the Court and it was held that where the disputes matter of the suit fell within the Industrial Disputes Act, the Civil Court cannot exercise the jurisdiction. In the present case, it is not the case that subject matter jurisdiction was lacking, ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 27 rather the submission is that territorial jurisdiction is lacking. In Subhash Mahadevasa Habib (supra), the Hon'ble Supreme Court .
held that lack of pecuniary jurisdiction was equal to lack of territorial jurisdiction and no objection regarding the lack of pecuniary jurisdiction could be raised in appeal unless there was a failure of justice. This judgment does not support the of submission of Mr. Romesh Verma, learned Senior Counsel for the appellant. rt
24. Thus, the learned First Appellate Court had erred in holding that the Courts at Solan had jurisdiction to hear and entertain the suit but had rightly held that the question of lack of territorial jurisdiction cannot be raised during the appeal in the absence of any failure of justice. Hence, the substantial question of law is answered accordingly.
Substantial Question of Law No.2:
25. The Will (Ex.PW-2/A) was attested by Dev Raj. (PW-
3) and Pradeep Kumar (not examined). It was drafted by Ravinder Nath Sharma (PW-2).
26. Ravinder Nath Sharma (PW-2) stated that he has been practising as an Advocate at Chandigarh since 1982. He ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 28 knew Gulab Singh because he was a resident of Nauradhar and had graduated from Degree College, Solan. Gulab Singh got .
drafted a Will on 26.11.1991. He (Ravinder Nath) wrote the Will as per the directions of Gulab Singh. He made inquiries from Gulab Singh and prepared the rough notes. Gulab Singh acknowledged the correctness of rough notes. The Will was typed subsequently.
of The contents of the Will were read over and explained to Gulab Singh who acknowledged them to be correct. Gulab Singh put his rt signatures in his (Ravinder Nath) presence and in presence of Dev Raj and Pradeep. He identified the signatures of Gulab Singh and the witnesses. He stated in his cross-examination that he knew Gulab Singh because he used to stay at the Royal Hotel and visit Chandigarh. He (Ravinder) had studied at Solan from 1972 to 1976. He used to visit the Royal Hotel with the people coming from Sirmour. He had accompanied Dalip Singh, a resident of Dewa Manal. He did not know that Gulab Singh did not reside at Solan permanently but he had seen Gulab Singh at Solan between 1973 and 1976. He had not preserved the rough notes and destroyed them after writing the Will. Dev Raj was SDO in Electricity or perhaps in Buildings and Roads. Gulab Singh was in a sound disposing state of mind. He had not disclosed ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 29 anything about the other legal heirs. Two witnesses and Gulab Singh came to him. He denied that a false Will was prepared by .
him, he had procured witness Pradeep Kumar at Chandigarh and obtained the signatures of Dev Raj at Solan. He had advised the parties to get the Will registered. He did not know Prem Vati (plaintiff). He denied that he was making a false statement at of the instance of the plaintiff.
27. rt Dev Raj (PW-3) retired SDO stated that he knew Gulab Singh. Gulab Singh executed a Will in his presence and in presence of Pradeep in the District Court, Chandigarh. This Will was drafted by an Advocate who read over and explained the same to Gulab Singh. Gulab Singh acknowledged its correctness and signed the Will. He and Pradeep signed the Will. The Advocate also signed the Will. He stated in his cross-
examination that he and Gulab Singh went to Chandigarh on a bus. They had done their work at Chandigarh. Gulab Singh was to deposit some money at Chandigarh. When they met again, Gulab Singh said that an Advocate was known to him and he wanted to get a Will drafted. Pradeep Kumar came to the spot by chance. No inquiry was made as to why he had visited the Courts.
It took about one hour to write the Will. He denied that the ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 30 signatures were put at Solan. He had not asked Gulab Singh to execute the Will at Solan where Courts and Advocates were .
present.
28. Sita Ram (DW-1) admitted in his cross-examination that Prem Vati resided with Gulab Singh at Solan. Gulab Singh used to reside at the Royal Hotel. Gulab Singh was not married.
of He admitted that Gulab Singh used to treat Prem Vati as his rt daughter. He was not aware that Gulab Singh had executed a Will at Chandigarh. Gulab Singh was in a sound disposing state of mind before his death.
29. The defendant admitted in his cross-examination that Gulab Singh used to treat the plaintiff as his daughter. This corroborates the version of the plaintiff that Gulab Singh used to treat her as his daughter. This shows that the recital in the Will that Prem Vati was the adopted daughter of Gulab Singh is correct. He had a reason to execute a Will in favour of the plaintiff who was residing with him and whom he treated as his daughter. Therefore, the execution of the Will in favour of the plaintiff cannot be said to be suspicious.
::: Downloaded on - 20/10/2023 20:39:46 :::CIS 3130. It was submitted that there are contradictions in the testimonies of the witnesses due to which the execution of the .
Will is suspect. This submission is not acceptable. The Will was executed on 26.11.1991. The witnesses deposed in the year 2000 after the lapse of nine years. Human memory fails and contradictions are bound to come with the passage of time. It of was laid down by the Hon'ble Supreme Court in Meenakshiammal v. Chandrasekaran, (2005) 1 SCC 280 = 2004 SCC rt OnLine SC 1397 that the suspicion must be one inherent in the transaction itself. It is not a suspicion that arises on conflict of testimonies. It was observed:
"20. In the case of Ryali Kameswara Rao v. Bendapudi Suryaprakasarao AIR 1962 AP 178 the Court while discussing the provisions of Section 63 of the Succession Act, 1925, has held that the suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from a conflict of testimony which becomes apparent on an investigation of the transaction. That suspicious circumstances cannot be defined precisely. They cannot be enumerated exhaustively. They must depend upon the facts of each case. When a question arises as to whether a will is genuine or forged, normally the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favour of the probabilities of the will. Whether a will has been executed by the testator in a sound and disposing state of mind is purely a question of fact, which will have to be decided in each case on the ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 32 circumstances disclosed and the nature and quality of the evidence adduced. When the will is alleged to have been executed under undue influence, the onus of .
proving undue influence is upon the person making such allegation and the mere presence of motive and opportunity are not enough."
31. Similarly it was held by this Court in Shakuntala Devi v. Savitri Devi, 1996 SCC OnLine HP 12= AIR 1997 HP 43 that of contradictions in the statements of witnesses do not amount to suspicious circumstances. It was held:
rt "23. The District Judge has relied heavily on the contradictions appearing in the depositions of DW.1 Satya Devi, DW. 2 Keshav Ram, DW 3 Sher Singh and DW.4 Amar Singh with regard to the execution of the Will. Such contradictions, which are of a minor nature, will not be a suspicious circumstance. The memory fades away with the passage of time and when evidence is being given after a lapse of six years, the witnesses cannot be expected to make a parrot-like statement on each and every minor aspect of the cast Therefore, the District Judge has erred in relying upon such minor contradictions coming in the statements of various witnesses."
32. Therefore, the contradictions cannot be used to discard the Will.
33. The testimonies of the scribe and the witness Dev Raj corroborate each other. There is nothing in their cross-
examination to show that they were making a false statement.
Both the learned Courts below have concurrently held that ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 33 execution and attestation of the Will were duly proved. This was a reasonable view which could have been taken based on the .
evidence led before the learned Courts below.
34. It was laid down by Hon'ble Supreme Court in Rur Singh v. Bachan Kaur, (2009) 11 SCC 1 : (2009) 4 SCC (Civ) 387:
2009 SCC OnLine SC 320 that the execution and attestation of of Will are pure findings of fact. It was observed:
rt
13. The High Court while exercising its jurisdiction under Section 100 of the Code of Civil Procedure exercises a limited jurisdiction. It may interfere with a finding of fact arrived at by the trial court and/or the first appellate court only in the event, a substantial question of law arises for its consideration.
14. The High Court framed only one substantial question of law viz. whether the will had been duly proved and/or was otherwise genuine. It is essentially a question of fact.
The learned trial Judge as also the first appellate court in opining that the will was genuine and free from suspicious circumstances inter alia took into consideration the existing materials on record viz. the parties ordinarily do not want their agricultural land to go out from the family and in that view of the matter if Kehar Singh had bequeathed his agricultural land only in favour of his sons and excluding the daughters from inheritance, no exception thereto could be taken.
xxx
18. The High Court essentially entered into the arena of appreciation of evidence. It interfered with the concurrent findings of fact arrived at by the courts below.
::: Downloaded on - 20/10/2023 20:39:46 :::CIS 3435. It was laid down by the Hon'ble Supreme Court in Gurnam Singh v. Lehna Singh, (2019) 7 SCC 641 : (2019) 3 SCC (Civ) .
709: 2019 SCC OnLine SC 374, that where the First Appellate Court had appreciated the facts regarding the execution of the Will, it is not permissible for the High Court to interfere with this findings of fact in second appeal under Section 100 of CPC. It was of observed:
rt "15. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has erred in reappreciating the evidence on record in the second appeal under Section 100 CPC. The High Court has materially erred in interfering with the findings recorded by the first appellate court, which were on reappreciation of evidence, which was permissible by the first appellate court in the exercise of powers under Section 96 CPC.
Cogent reasons, on appreciation of the evidence, were given by the first appellate court. The first appellate court dealt with, in detail, the so-called suspicious circumstances which weighed with the learned trial court and thereafter it came to the conclusion that the will, which as such was a registered will, was genuine and did not suffer from any suspicious circumstances. The findings recorded by the first appellate court are reproduced hereinabove. Therefore, while passing the impugned judgment and order [Lehna Singh v. Gurnam Singh, Civil Regular Second Appeal No. 2191 of 1985, order dated 27-11-2007 (P&H)], the High Court has exceeded its jurisdiction while deciding the second appeal under Section 100 CPC."
::: Downloaded on - 20/10/2023 20:39:46 :::CIS 3536. In Kashibai v. Parwatibai, (1995) 6 SCC 213, the High Court had interfered with the findings of fact recorded by the .
Courts regarding the validity of the Will. It was held by the Hon'ble Supreme Court that it is not permissible for the High Court to interfere with the findings of fact related to the execution of the Will while hearing the second appeal. It was of observed:-
rt "11...... In the present case, the trial court after a close scrutiny and analysis of the evidence of Defendant 1, Smt Parvati Bai, Vir Bhadra, Sheikh Nabi, Shivraj and Gyanoba Patil who are witnesses to the Will recorded the finding that none of them deposed that Lachiram had signed the said Will before them and they had attested it. None of them except Sheikh Nabi even deposed as to when the talk about the execution of Will was held. The witness Sheikh Nabi, however, deposed that the talk about the Will also took place at the time of the talk about the adoption. But this witness too did not depose that deceased Lachiram had signed the alleged Will in his presence. In the absence of such evidence it is difficult to accept that the execution of the alleged Will was proved in accordance with law as required by Section 68 of the Evidence Act read with Section 63 of the Indian Succession Act and Section 3 of the Transfer of Property Act. It may be true as observed by the High Court that the law does not emphasise that the witness must use the language of the section to prove the requisite merits thereof but it is also not permissible to assume something which is required by law to be specifically proved. The High Court simply assumed that Lachiram must have put his signature on the Will Deed in the presence of the attesting witness Sheikh Nabi simply ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 36 because the Deed of Adoption is admitted by the witness to have been executed on the same day. The High Court committed a serious error in making the observations .
that broad parameters of Nabi's evidence would show that Lachiram executed the Will in his presence, that he signed the Will being part of the execution of the testament and this evidence in its correct background would go to show that what was required under Section 63 has been carried out in the execution of the Will. With respect to the High Court, we may say that these findings of of the High Court are clearly based on assumptions and surmises and, totally against the weight of the evidence on record. The trial court on a close and thorough analysis of rt the entire evidence came to a proper conclusion that the Will has not been proved in accordance with the law which finding has been further affirmed by the lower appellate court after an independent reappraisal of the entire evidence with which we find ourselves in agreement as there was hardly any scope or a valid reason for the High Court to interfere with.
12. Further, it may not be out of place to mention that sub-section (1) of Section 100 of the Code of Civil Procedure explicitly provides that 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. Sub-section (4) of Section 100 provides that when the High Court is satisfied that a substantial question of law is involved in any case it shall formulate that question. But surprisingly enough the High Court seems to have ignored these provisions and proposed to reappreciate the evidence and interfere with the findings of fact without even formulating any question of law. It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, based on appreciation of the relevant evidence. There is a catena of decisions in support of ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 37 this view. Having regard to all the facts and circumstances of the present case discussed above, we are satisfied that there was no justification for the High Court to interfere .
with the well-reasoned findings of the two courts below.
Consequently, this appeal must succeed." (Emphasis supplied).
37. It was held in Lisamma Antony v. Karthiyayani, (2015) 11 SCC 782, that it is impermissible to interfere with the findings of of facts under section 100 of CPC. It was held:
rt "11. It is a settled principle of law that a second appeal under Section 100 of the Code of Civil Procedure, 1908, cannot be admitted unless there is a substantial question of law involved in it. As to what is a substantial question of law, in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722], this Court has explained the position of law as under : (SCC pp. 725-26, para 6) "6. 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 a 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 ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 38 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 the second appeal."
12. In view of the above position of law, the question formulated by the High Court in the present case, as quoted above, cannot be termed to be a question of law, much less a substantial question of law. The above of question formulated is nothing but a question of fact. Merely for the reason that on appreciation of evidence another view could have been taken, it cannot be said that the High Court can assume the jurisdiction by terming rt such a question as a substantial question of law.
13. Having gone through the impugned order challenged before us and after considering the submissions of the learned counsel for the parties, we are of the view that the High Court has simply re-appreciated the evidence on record and allowed the second appeal and remanded the matter to the trial court."
38. Similar view was taken in Narendra v. Ajabrao, (2018) 11 SCC 564, wherein it was observed:-
"17. In the first place, we find that the High Court decided the second appeal like a first appeal under Section 96 of the Code inasmuch as the High Court went on appreciating the entire oral evidence and reversed the findings of fact of the first appellate court on the question of adverse possession. Such an approach of the High Court, in our opinion, was not permissible in law.
18. Second, the High Court failed to see that a plea of adverse possession is essentially a plea based on facts and once the two courts, on appreciating the evidence, recorded that a finding may be of reversal, such finding is binding on the second appellate court. It is more so as ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 39 it did not involve any question of law much less substantial question of law. This aspect of law was also overlooked by the High Court.
.
19. Third, the High Court has the jurisdiction, in appropriate cases, to interfere in the finding of fact provided such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or when it is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law and empower the High Court of to interfere. However, we do not find any such error here."
39. It was held in Ramathal v. Maruthathal, (2018) 18 SCC rt 303 that it is not appropriate for the High Court to disturb the concurrent findings of facts by re-appreciating the evidence and its jurisdiction is confined to the substantial question of law. It was observed:-
"13. It was not appropriate for the High Court to embark upon the task of reappreciation of evidence in the second appeal and disturb the concurrent findings of fact of the courts below which are the fact-finding courts. At this juncture, for better appreciation, we deem it appropriate to extract Sections 100 and 103 CPC, which reads as follows:
"100. Second appeal.--(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 ex parte.::: Downloaded on - 20/10/2023 20:39:46 :::CIS 40
(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 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:
of ***
103. Power of High Court to determine issues of fact.-- In any second appeal, the High Court may, rtif 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 both by the court of first instance and the lower appellate court, or
(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."
14. A clear reading of Sections 100 and 103 CPC envisages that a burden is placed upon the appellant to state in the memorandum of grounds of appeal the substantial question of law that is involved in the appeal, then the High Court being satisfied that such a substantial question of law arises for its consideration has to formulate the questions of law and decide the appeal. Hence a prerequisite for entertaining a second appeal is a substantial question of law involved in the case which has to be adjudicated by the High Court. It is the intention of the legislature to limit the scope of a second appeal only when a substantial question of law is involved and the amendment made to Section 100 makes the legislative intent more clear that it never wanted the High Court to ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 41 be a fact-finding court. However, it is not an absolute rule that the High Court cannot interfere in a second appeal on a question of fact. Section 103 CPC enables the High Court .
to consider the evidence when the same has been wrongly determined by the courts below on which a substantial question of law arises as referred to in Section 100. When appreciation of evidence suffers from material irregularities and when there is perversity in the findings of the court which are not based on any material, the court is empowered to interfere on a question of fact as of well. Unless and until there is absolute perversity, it would not be appropriate for the High Courts to interfere in a question of fact just because two views are possible; in such circumstances, the High Courts should restrain rt itself from exercising the jurisdiction on a question of fact.
15. When the intention of the legislature is so clear the courts have no power to enlarge the scope of Section 100 for whatsoever reasons. Justice has to be administered in accordance with the law. In the case on hand, the High Court has exceeded its jurisdiction by reversing the well- considered judgment of the courts below which is based on cogent reasoning. The learned Judge ought not to have entered the arena of reappreciation of the evidence, hence the whole exercise done by the High Court is beyond the scope and jurisdiction conferred under Section 100 CPC."
40. Similarly, it was held in C. Doddanarayana Reddy v. C. Jayarama Reddy, (2020) 4 SCC 659 that the High Court cannot interfere with the concurrent findings of fact unless there is perversity or the same is de hors the evidence led before the Courts:
"25. The question as to whether a substantial question of law arises has been a subject matter of interpretation by ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 42 this Court. In the judgment in Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 .
SCC 343], it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under : (SCC pp. 347-48, paras 12-15) "12. This Court had repeatedly held that the power of the High Court to interfere in a second appeal under Section 100 CPC is limited solely to deciding a substantial question of law if at all the same of arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said rtfinding of fact is either perverse or not based on material on record.
13. In Ramanuja Naidu v. V. Kanniah Naidu [Ramanuja Naidu v. V. Kanniah Naidu, (1996) 3 SCC 392], this Court held : (SCC p. 393) 'It is now well settled that concurrent findings of fact of the trial court and the first appellate court cannot be interfered with by the High Court in the exercise of its jurisdiction under Section 100 of the Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.'
14.In Navaneethammal v. Arjuna Chetty [Navaneethammal v. Arjuna Chetty, (1996) 6 SCC 166] , this Court held : (SCC p. 166) 'Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 43 reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate .
court was based on no material.'
15. And again in Taliparamba Education Society v. Moothedath MallisseriIllath M.N. [Taliparamba Education Society v. Moothedath MallisseriIllath M.N., (1997) 4 SCC 484], this Court held : (SCC p. 486, para 5) '5. ... The High Court was grossly in error in trenching upon the appreciation of evidence under of Section 100 CPC and recording reverse finding of fact, which is impermissible."
41. No perversity was shown in the present case. The rt findings are based upon the evidence and cannot be said to be dehors the evidence. Hence, this substantial question of law is answered accordingly.
Final order:
42. In view of the above, the present appeal fails and the same is dismissed, so also pending miscellaneous application(s), if any.
(Rakesh Kainthla) Judge 20th October, 2023 (Chander) ::: Downloaded on - 20/10/2023 20:39:46 :::CIS