Gujarat High Court
Hasmukhbhai Kantibhai Bharvad vs Chanduji Gabhaji Thakor on 19 June, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/146/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 146 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
Circulate this judgement in the subordinate judiciary.
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HASMUKHBHAI KANTIBHAI BHARVAD
Versus
CHANDUJI GABHAJI THAKOR
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Appearance:
MR HITESH N ACHARYA(2302) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 19/06/2018
ORAL JUDGMENT
1. This second appeal under section 100 of the C.P.C is at the instance of the original plaintiff, questioning the legality and validity of the judgment and order dated 16th January, 2018 passed by the 8th Addl. Sessions Judge, Ahmedabad Page 1 of 27 C/SA/146/2018 JUDGMENT (Rural), Mirzapur in the Regular Civil Appeal No.2 of 2015 arising from the judgment, order and decree dated 9 th January, 2015 passed by the Principal Civil Judge, Ahmedabad (Rural) in the Regular Civil Suit No.823 of 2006.
2. The suit filed by the plaintiff for injunction simplicitor came to be dismissed by the Trial Court, and the Regular Civil Appeal filed in the District Court against the said judgment and order also came to be dismissed. The proposed substantial questions of law as framed in this second appeal are extracted hereunder;
"(1) Whether the learned Court below had jurisdiction to look in to merits, when the agreement between the parties was tender before the court below and it was required to be recorded?
(2) Whether the lower Appellate Court was justified in dismissing the appeal despite the settlement agreement between parties on record at Mark-26/1, particularly when the defendant despite to notice to him, did not challenged the same?
(3) Whether the lower Appellate Court was required to pass a decree in terms of the settlement between the parties in view of the provision of Order-23, Rule-3 of the CPC?
(4) Whether the Trial Court was justified in dismissing the suit merely on the ground of provision of Order-2-
(5) Whether the suit as framed by the plaintiff for permanent injunction is not maintainable in law keeping in view cause of action pleaded in plaint?"
3. The case of the appellant-original plaintiff is that he is the lawful owner of a property bearing Survey No.698/1, situated at village Sola, Ahmedabad. This suit property was of the co-
Page 2 of 27C/SA/146/2018 JUDGMENT ownership of the defendant. The defendant had 50% of share in the suit property and that 50% of his share in the suit property came to be transferred in favour of the appellant by way of an agreement to sale dated 8th October, 2005. It is also the case of the appellant that, at the relevant point of time, one power of attorney was also executed by the defendant and the entire amount of sale consideration was also paid to the defendant. The appellant-plaintiff had to file the regular civil suit, referred to above, with a prayer for injunction simplicitor as the defendant tried to transfer the suit property in favour of some other person. In such circumstances, in the plaint, the following relief was prayed;
"(a) It is prayed to pass permanent injunction order in favour of the plaintiff and against the respondent restraining the respondents of this case, their employees, agents and assignees from selling or causing to sell in anyway the land mentioned in para - 1 of this plaint and to hold that the respondent has no right or authority to transfer, assign, lease or sub - lease this land in any other way or to use the land in any other way or to handover the possession of the land to any other person."
4. It appears that summons was issued to the defendant by the concerned civil court. However, the defendant did not appear at any point of time for the purpose of opposing the suit. The Trial Court, on the basis of the pleadings, framed three issues in the suit vide Exh.10. The issues framed by the Trial Court are extracted hereunder;
"(I) Does the plaintiff prove that he is the owner of the suit property and is in possession of the same?
(ii) Is the plaintiff entitled to the relief prayed for in the suit?Page 3 of 27
C/SA/146/2018 JUDGMENT
(iii) What type of order and decree?
5. The Trial Court answered the issues framed by it, referred to above, holding as under;
"R E A S O N S Point No. 1 and 2.
(6) For showing that the Plaintiff of the property in suit is the owner and occupant in this case, Advocate Shri J.C. Shah for the Plaintiff has submitted during his argument that even though summons has been served in this suit, the Respondent of this case has neither remained present nor any reply has been filed and the suit of the Plaintiff has not been challenged in any way.
Therefore, the oral and documentary evidence produced by the Plaintiff should be taken into consideration. Plaintiff has given his examination-in-chief as per his plaint application vide Exhibit-34 and in support of the suit of the Plaintiff, witness Juhaji Punjaji was examined vide Exhibit-40, who has admitted the fact that sale-deed vide Mark 33/1 was executed. In this case, the Plaintiff has contended that on 8/10/2015, the Respondent has executed sale deed with possession of the land in suit of his half share in favour of the Plaintiff and accordingly, power-of-attorney was executed vide Exhibit-38. Thus, the property in suit is in possession of the Plaintiff and as the price of the land in suit has increased, the Respondent intends to sell out the land in suit to other person. Therefore, the Plaintiff has prayed for declaration and injunction order praying to restrain the Respondent from transferring, selling or handing over the possession of land in suit to any other person. But in this case, the Plaintiff has not produced any such evidence that the Plaintiff is the owner of the property in suit. In this case, the Plaintiff has not got the earnest money deed exhibited, on which he has relied upon or he has not proved it by giving evidence and he has only produced the original earnest money deed vide Mark 33/1. But only for the sake of argument, even if we consider the earnest money deed vide Mark 33/1 to be an evidence, it is merely an agreement to sale. The plaintiff does not get any right of ownership in the suit property on the basis of Page 4 of 27 C/SA/146/2018 JUDGMENT agreement to sale. As stated by the plaintiff, the possession of property in suit has been handed over to him. It means that, part performance of the agreement has been done. But, the plaintiff did not make any explanation as to why prayer for specific performance of agreement is not made. Further, the plaintiff has kept the right of suit regarding compliance of contract in his plaint absolute. Such has been pleaded in para-6. But, in order to keep the right absolute, the plaintiff has not obtained permission of the Court as per Order-2, Rule-2(3) of C.P.C. Hence, as per Order-2, Rule-2 (3) of C.P.C, the plaintiff should prayed for specific performance of the agreement in the present suit. If it has been prayed only for declaration and injunction, the suit would not be tenable. Because, the plaintiff does not get any right of ownership on the basis of agreement to sale only. Further, the plaintiff has not produced any documentary evidence that the property in suit was owned by the respondent. Hence, it is not proved that the plaintiff is the owner of the property in suit and as prayer for specific performance of the agreement is not made by the plaintiff, its ancillary prayers like declaration and injunction cannot be granted. Hence, my reply to the point Nos. 1 and 2 is negative and following order is passed in the present case.
-:ORDER :-
The present suit filed by the plaintiff is hereby rejected. The cost shall be borne by the plaintiff."
6. Thus, it appears that the entire suit of the appellant-
plaintiff was based on the so called agreement to sale said to have been executed by the defendant in his favour way back on 8th October, 2005, but as observed by the Trial Court, the plaintiff was not able to prove the agreement to sale. In fact, the said agreement to sale was not even admitted in evidence and was not given any exhibit. The Trial Court further recorded a finding that although the plaintiff claimed to be the true and lawful owner of the property in question, yet he was Page 5 of 27 C/SA/146/2018 JUDGMENT asserting his right over the suit property on the basis of an agreement to sale. If the appellant-plaintiff had an agreement to sale in his favour, then what was the good reason for him not to pray for specific performance of contract. On such grounds, the Trial Court dismissed the suit.
7. Being dissatisfied with the judgment and order of dismissal of the suit, the appellant-plaintiff preferred a first appeal before the District Court. The first appeal also came to be dismissed. The Appellate Court, while dismissing the appeal, observed as under;
"8.2 Heard arguments of Ld. advocate for the Appellant of this Appeal. Read the record of R.C.S.No.823/2006 of the lower court, the order passed by the lower Court on 09/01/2015, appeal memo and the documents produced with it. The notice was issued by the court to the Respondent/defendant of this appeal and though the said notice was served to him, he has not remained present or he has not made arguments in the appeal. Perusing the record of R.C.S.No. 823/06, it appears that, the respondent / defendant of this suit has not filed the reply despite service of summons/notice to him therefore Ld. lower court passed an order closing the right of filing reply. Ld. lower court has framed issues in the said suit and the appellant/plaintiff of this suit has submitted his affidavit of examination in chief vide Exhibit-34 and he has submitted the examination in chief corroborative to the plaint application vide Exhibit-1. The right of the defendant to take cross-examination of the said plaintiff has been closed. Thereafter, original Power of Attorney was produced on behalf of the appellant/plaintiff of this suit through the list of Exhibit-
37. As the application to exhibit the said document was produced, Ld. lower court gave Exhibit-38 to this Power of Attorney. Looking to the power of attorney vide Exhibit-38, it appears that, this power of attorney has been executed by the respondent/defendant in favour of appellant/plaintiff of this suit. Moreover, looking to the record of this case, the xerox copies of sale deed, village Page 6 of 27 C/SA/146/2018 JUDGMENT form No.7/12, register of rights of village form No.6 have been produced on behalf of appellant/plaintiff through the list of exhibit-3. But, the appellant/plaintiff of this case has not proved the said documents by his evidence. Moreover, certified copy of the sale deed which was executed between appellant/plaintiff has been produced vide mark-14/1 and the original sale deed has been produced through the list of Exhibit-33. It is the argument of the advocate of appellant/plaintiff that, though the sale deed was given exhibit number in the said suit, Ld. trial court did not admit it. But, as discussed above, the appellant/plaintiff did not prove the sale deeds which were produced and this sale deed was executed on the stamp paper of Rs.50/- which is not a registered agreement. Moreover, according to the contentions made by the appellant/plaintiff, he has paid the whole amount of consideration to the respondent/defendant of this case and he is the lawful occupant and owner of the disputed suit property. But, the appellant/plaintiff has not produced any documentary proofs showing the ownership of the respondent/defendant in the suit property, or he has not proved such fact by his evidence. Moreover, the respondent/defendant has appeared in the said appeal and produced his reply vide Exhibit-24, and he has also produced the certified copy of agreement deed through the list of Exhibit-26 and he submitted that, agreement deed has been executed between him and the appellant of this case but the advocate of the appellant/plaintiff of this case has not mentioned the fact of this agreement deed in his argument. Ld. Lower Court has stated in Regular Civil Suit No.823/2006 by giving findings that no right of plaintiff establishes in the suit property by Sale Agreement and the plaintiff has kept his right absolute for implementation of the agreement. It is stated in Para- 6 but he has not obtained permission of the Ld. Court as per the provisions of C.P.C. and the plaintiff has not prayed for specific performance of agreement in the matter of this suit and therefore, the order passed by Ld. Lower Court to reject the suit is appropriate and just as no document showing ownership of the respondent to the suit property was produced. The appellant / plaintiff has not prayed for specific performance of the agreement but has prayed for injunction order only on the ground that the respondents are conspiring to sale or transfer the suit property to others. The appellant / Page 7 of 27 C/SA/146/2018 JUDGMENT plaintiff of the case has not proved the facts by evidences as to whom the respondents of the case are trying to sale the suit property. Further, the respondents have not proved the fact that they were the owners of the suit property and in such circumstances, as the Ld. Lower Court has passed an order, to reject the Regular Civil Suit No.823/2006 after giving findings and discussing and deliberating available evidences, this court does not deem it proper to interfere in the said order and therefore, answer of point no.1 and 2 is given "In Negative" and following order is passed regarding Point No.3."
8. Mr. Acharya, the learned counsel appearing for the appellant-plaintiff submitted that both the courts below committed an error in passing the impugned judgments and orders. According to Mr. Acharya, there was a settlement arrived at between his client and the defendant. The said settlement deed was produced before the Trial Court and marked as Mark 26/1. What was produced, according to Mr.Acharya, was a Xerox copy of the so called settlement deed. According to Mr. Acharya, on this document alone, the Civil Court ought to have passed a decree in accordance with the provisions of Order-23, Rule-3 CPC. Mr. Acharya further submitted that the defendant failed to appear and oppose the suit. In such circumstances, the Trial Court ought to have allowed the suit filed by the appellant-plaintiff and ought to have granted the relief. He would further submit that a simple suit for injunction without any prayer for specific performance of contract, based on an agreement to sell, is maintainable in law. In the last, Mr. Acharya submitted that the Trial Court committed an error even in framing the issues. According to Mr. Acharya, the right over the suit property was being asserted by his client on the basis of an agreement to sale. At no point of time, the appellant-plaintiff claimed to be the true Page 8 of 27 C/SA/146/2018 JUDGMENT and lawful owner of the property. Mr. Acharya would submit that the Trial Court misdirected itself while deciding the civil suit and this fact also came to be overlooked by the first appellate court.
9. Having heard the learned counsel appearing for the appellant and having gone through the materials on record, the only question that falls for my consideration is whether there are any substantial questions of law involved in this second appeal.
10. In Govindaraju vs. Martamman, AIR 2005 SC 1008, the Supreme Court explained the true purport and scope of section 100 of the CPC. I may quote the relevant observations;
"11. A perusal of Section 100 of the Code makes it clear that the High Court cannot proceed to hear a Second Appeal without formulating the substantial questions of law involved in the appeal. It reads :-
"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.
(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 Page 9 of 27 C/SA/146/2018 JUDGMENT the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
12. Section 100 provides that the second appeal would lie to the High Court from a 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". It further provides that the memorandum of appeal shall precisely state the substantial question of law involved in the appeal and the High Court on being satisfied that the substantial question of law is involved in a case formulate the said question. Sub-section (5) provides that the "appeal shall be heard on the question so formulated". It reserves the liberty with the respondent against whom the appeal was admitted ex- parte and the questions of law had been framed in his absence to argue that the case did not involve the questions of law framed. Proviso to sub-section (5) states that the questions of law framed at the time of admission would not take away or abridge the power of the court to frame any other substantial question of law which was not formulated earlier, if the court is satisfied that the case involved such additional questions after recording reasons for doing so. It is abundantly clear from the analysis of Section 100 that if the appeal is entertained without framing the substantial questions of law, then it would be illegal and would amount to failure or abdication of the duty cast on the court. The existence of substantial questions of law is the sine qua non for the exercise of jurisdiction under Section 100 of the Code. { Refer to Kshitish Chandra Purkait v. Santosh Kumar Purkait & Ors. [(1997) 5 SCC 438], Panchugopal Barua v. Umesh Chandra Goswami [(1997) 4 SCC 413], Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [(1999) 3 SCC 722] }
13. A three Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari (Deceased) By LRs. [(2001) 3 SCC 179] after tracing the history of Section 100, the purpose which necessitated and persuaded the Law Commission Page 10 of 27 C/SA/146/2018 JUDGMENT of India to recommend for amendment of Section 100, concluded that scope of hearing of Second Appeal by the High Court is circumscribed by the questions formulated by the High Court at the time of admission of the appeal and the High Court has to hear the appeal on substantial questions of law involved in the case only. That the High Court would be at liberty to hear the appeal on any other substantial question of law, not earlier formulated by it, if the court is satisfied of two conditions i.e. (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction." It was observed in para 10 as under :-
"At the very outset we may point out that the memo of second appeal filed by the plaintiff- appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on "substantial question of law involved in the case".
An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied : (i) the High Court feels satisfied that the case involves such question, and
(ii) the High Court records reasons for its such satisfaction." {Emphasis supplied}
14. As to which would constitute a substantial question Page 11 of 27 C/SA/146/2018 JUDGMENT of law, it was observed :-
"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, insofar 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." {Emphasis supplied}
15. This judgment has been followed in a number of decisions including the latest on the point Thiagarajan & Ors. v. Sri Venugopalaswamay B. Koil & Ors. [(2004) 5 SCC 762].
16. As per settled law, the scope of exercise of the jurisdiction by the High Court in Second Appeal under Section 100 is limited to the substantial questions of law framed at the time of admission of the appeal or additional substantial questions of law framed at a later date after recording reasons for the same. It was observed in Santosh Hazari's case (supra) that 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 a 'substantial' question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. As to what would be the question of law "involving in the case", it was observed that to be a question of law 'involving in the case' there must be first a foundation for Page 12 of 27 C/SA/146/2018 JUDGMENT it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the court of facts and it must be necessary to decide that question of law for a just and proper decision between the parties."
11. In Union of India vs. Ibrahim Uddin & Anr., 2012 (8) SCC 148, the Supreme Court, once again, explained the scope of section 100 CPC. The relevant observations are extracted hereunder;
"59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a Second Appeal does not lie on question of facts or of law. In State Bank of India & Ors. v. S.N. Goyal, AIR 2008 SC 2594, this Court explained the terms "substantial question of law" and observed as under :
"The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. ........... any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law.
There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case." (Emphasis added)
60. Similarly, in Sir Chunilal V. Mehta & Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, this Court for the purpose of determining the issue held:-Page 13 of 27
C/SA/146/2018 JUDGMENT "The proper test for determining whether a question of law raises 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....." (Emphasis added)
61. In Vijay Kumar Talwar v. Commissioner of Income Tax, New Delhi, (2011) 1 SCC 673, this Court held that, "21...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 on the decision of the case, if answered either way, insofar 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. It will, therefore, depend on the facts and circumstance of each case, whether a question of law is a substantial one 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."
(See also: Rajeshwari v. Puran Indoria, (2005) 7 SCC 60).
62. The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a sine-qua-non for the exercise of jurisdiction under the provisions of Section 100 CPC. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence.
63. There may be a question, which may be a "question of fact", "question of law", "mixed question of fact and law" and "substantial question of law." Question means Page 14 of 27 C/SA/146/2018 JUDGMENT anything inquired; an issue to be decided. The "question of fact" is whether a particular factual situation exists or not. A question of fact, in the Realm of Jurisprudence, has been explained as under:-
"A question of fact is one capable of being answered by way of demonstration. A question of opinion is one that cannot be so answered. An answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong." (Vide:
Salmond, on Jurisprudence, 12th Edn. page 69, cited in Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb Vikhe Patil & ors., AIR 1994 SC 678).
64. In Smt. Bibhabati Devi v. Ramendra Narayan Roy & Ors., AIR 1947 PC 19, the Privy Council has provided the guidelines as in what cases the second appeal can be entertained, explaining the provisions existing prior to the amendment of 1976, observing as under:-
"(4)..... that miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happen not in the proper sense of the word 'judicial procedure' at all.
That the violation of some principles of law or procedure must be such erroneous proposition of law that if that proposition to be corrected, the finding cannot stand, or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding, is such a question of law.
(5) 'That the question of admissibility of evidence is a proposition of law but it must be such as to affect materially the finding. The question of the value of evidence is not sufficient reason for departure from the practice......"
65. In Suwalal Chhogalal v. Commissioner of Income Tax, (1949) 17 ITR 269, this Court held as under:-
"A fact is a fact irrespective of evidence, by which it is proved. The only time a question of law can arise in such a case is when it is alleged that there is no material on which the conclusion can be based or no sufficient material."Page 15 of 27
C/SA/146/2018 JUDGMENT 66.. In Oriental Investment Company Ltd. v.
Commissioner of Income Tax, Bombay, AIR 1957 SC 852, this Court considered a large number of its earlier judgments, including Sree Meenakshi Mills Ltd., Madurai v. Commissioner of Income Tax, Madras, AIR 1957 SC 49, and held that where the question of decision is whether certain profit is made and shown in the name of certain intermediaries, were, in fact, profit actually earned by the assessee or the intermediaries, is a mixed question of fact and law. The Court further held that
29... inference from facts would be a question of fact or of law according as the point for determination is one of pure fact or a "mixed question of law and fact" and that a finding of fact without evidence to support it or if based on relevant or irrelevant matters, is not unassailable.
67. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse. (Vide: Jagdish Singh v. Nathu Singh, AIR 1992 SC 1604; Smt. Prativa Devi (Smt.) v. T.V. Krishnan, (1996) 5 SCC 353; Satya Gupta (Smt.) @ Madhu Gupta v. Brijesh Kumar, (1998) 6 SCC 423; Ragavendra Kumar v. Firm Prem Machinary & Co., AIR 2000 SC 534; Molar Mal (dead) through Lrs. v. M/s. Kay Iron Works Pvt. Ltd., AIR 2000 SC 1261; Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., AIR 2010 SC 2685; and Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC
740).
68. In Jai Singh v. Shakuntala, AIR 2002 SC 1428, this Court held that it is permissible to interfere even on question of fact but it may be only in "very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible it is a rarity rather than a regularity and thus in fine it can thus be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection." Similar view has been taken in the case of Kashmir Singh v. Harnam Singh & Anr., AIR 2008 SC 1749.
69. Declaration of relief is always discretionary. If the Page 16 of 27 C/SA/146/2018 JUDGMENT discretion is not exercised by the lower court "in the spirit of the statute or fairly or honestly or according to the rules of reason and justice", the order passed by the lower court can be reversed by the superior court. (See:
Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg & Anr., AIR 1977 SC 747).
70. There may be exceptional circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of Section 100 CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of courts of justice is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction. In second appeal the court frames the substantial question of law at the time of admission of the appeal and the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions or the court comes to the conclusion that the question(s) framed could not be the substantial question(s) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal. "
12. In a very recent pronouncement in the case of Syeda Rahimunnisa vs. Malan Bi (Dead) by Legal Representatives & Anr., 2016 (10) SCC 315, the Supreme Court has reiterated the scope of section 100 of the CPC and the principles of law, governing the second appeal, has been explained in detail.
"24. The scope of Section 100 of CPC while deciding the second appeal by the High Court has been the subject matter of several decisions of this Court and thus remains no more res integra. A reference to the two cases on this question would suffice.
25. A three-judge Bench of this Court in the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by LRs. reported in (2001) 3 SCC 179 speaking through R.C. Page 17 of 27 C/SA/146/2018 JUDGMENT Lahoti J (as His Lordship then was) examined the scope of Section 100 of CPC in detail and laid down the following propositions in paragraphs 9, 10, 12 and 14 as under:
"9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438, Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 413 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722)
10. At the very outset we may point out that the memo of second appeal filed by the plaintiff-appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on "substantial question of law involved in the case".
An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and
(ii) the High Court records reasons for its such satisfaction.
Page 18 of 27C/SA/146/2018 JUDGMENT
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 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 v. T. Ram Ditta (AIR 1928 PC 172), the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (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. v. Century Spg. and Mfg. Co. Ltd.(AIR 1962 SC 1314) the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (AIR 1951 Mad 969):
"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 views, 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 facts 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:
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, Page 19 of 27 C/SA/146/2018 JUDGMENT 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 the plea raised is palpably absurd the question would not be a substantial question of law."
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, insofar 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".
26. Again in the case of Thiagarajan And Others vs. Sri Venugopalaswamy B. Koil And Others reported in 2004 (5) SCC 762, a two Judge Bench of this Court in paragraphs 17, 24, 25 and 26 observed as under:
"17. Sub-section (5) of Section 100 CPC says that 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 a question. The proviso states that nothing in this sub- section shall be deemed to take away or abridge the Page 20 of 27 C/SA/146/2018 JUDGMENT power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it if it is satisfied that the case involves such question. In the instant case, the High Court at the time of final hearing formulated five more questions of law as extracted above after hearing the counsel for both sides having miserably failed to record the reasons for formulating the other substantial questions of law.
24. In our opinion, the High Court has erred in holding that the appellants have failed to establish their title to the suit property evidently without appreciating the evidence on record in its proper perspective by making only reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion, ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under Section 100 CPC. In our view, the learned Single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under the limited scope of jurisdiction of a second appeal under Section 100 CPC.
25. In the present case, the lower appellate court fairly appreciated the evidence and arrived at a conclusion that the appellants' suit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a 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.
26. To say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible". "Page 21 of 27
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13. As pointed out above, the entire suit filed by the plaintiff was based on the so called agreement to sell dated 8 th October, 2005, purported to have been executed by the defendant so far as 50% of his share in the suit property is concerned. Unfortunately, the appellant-plaintiff was not able to prove the agreement to sell in accordance with law. Indisputably, this document was not admitted in the evidence. It has not been exhibited. The learned counsel appearing for the appellant-plaintiff was unable to explain as to why this document was not exhibited. Probably, it appears that the appellant-plaintiff was not able to produce the original copy of the agreement to sell. Apart from the same, the appellant- plaintiff was not able to even prove the document in the form of some settlement arrived at between himself and the defendant. Both the courts recorded a concurrent finding of fact that the appellant-plaintiff was not able to establish any right or interest over the suit property for the purpose of grant of the relief of permanent injunction. Both the courts have recorded a finding that if the entire suit was based on an agreement to sell, then why there was no prayer for the grant of specific performance of the contract. In the absence of the main relief, i.e., the specific performance of contract, no ancillary relief in the form of an injunction could have been granted.
14. I do not propose to take the view as a proposition of law that a mere suit for permanent injunction will not lie or is per se not maintainable in law in the absence of any specific prayer for declaration. However, it would depend upon the facts and circumstances of each case. Where a plaintiff is in lawful or peaceful possession of a property and such Page 22 of 27 C/SA/146/2018 JUDGMENT possession is interfered or threatened by the defendant, a suit for an injunction simpliciter is maintainable. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
15. So far as the case in hand is concerned, both the courts have concurrently recorded a finding of fact that the plaintiff failed to establish his possession in the suit property and also failed to establish any right, title or interest over the suit property. In such circumstances, if the plaintiff is not able to establish his possession, he cannot seek the relief of injunction simpliciter.
16. In the aforesaid context, I may refer to and rely upon a decision of the Supreme Court in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by Lrs. & Ors., Page 23 of 27 C/SA/146/2018 JUDGMENT (2008) 4 SCC 594. In this decision of the Supreme Court, four questions arose for consideration. Those questions are stated in para-12. Para-12 is extracted hereunder;
"12. On the contentions urged, the following questions arise for our consideration in this appeal:
(i) What is the scope of a suit for prohibitory injunction relating to immovable property?
(ii) Whether on the facts, plaintiffs ought to have filed a suit for declaration of title and injunction ?
(iii) Whether the High Court, in a second appeal under section 100 CPC, examine the factual question of title which was not the subject matter of any issue and based on a finding thereon, reverse the decision of the first appellate court?
(iv) What is the appropriate decision?
17. In para-21, the Supreme Court has summarized the possession in regard to the suits for prohibitory injunction relating to the immovable property. Para-21 is extracted hereunder;
"(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to Page 24 of 27 C/SA/146/2018 JUDGMENT be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.
But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. "
18. In para-31, while allowing the appeal and quashing and setting aside the judgment and order of the High Court, the Supreme Court said something on the scope of section 100 CPC. Para-31 is extracted hereunder;
"31. We are therefore of the view that the High Court Page 25 of 27 C/SA/146/2018 JUDGMENT exceeded its jurisdiction under section 100 CPC, firstly in re-examining questions of fact, secondly by going into the questions which were not pleaded and which were not the subject matter of any issue, thirdly by formulating questions of law which did not arise in the second appeal, and lastly, by interfering with the well reasoned judgment of the first appellate court which held that the plaintiffs ought to have filed a suit for declaration."
19. In my considered opinion, the aforementioned proposed substantial questions cannot be regarded as satisfying the test of being "substantial questions of law" within the meaning of section 100 CPC. These questions, in my view, are essentially questions of fact or at best mixed questions of law and fact. In any event, the instant second appeal does not involve any substantial question of law as contemplated under section 100 of the CPC. I am saying so for the following reasons;
(I) First, the Trial Court and the first Appellate Court, on appreciation of the evidence has concurrently held that the appellant-plaintiff failed to prove any right, title or interest over the property on the basis of any document and when the appellant-plaintiff himself admits that the so called agreement to sell has not been exhibited and proved in accordance with law, then such findings, in my opinion, are binding on this court being concurrent in nature.
(ii) Secondly, none of the findings of the two courts below could be termed as perverse to the extent that no judicial person could ever come to such conclusion and the findings recorded by the two courts below are not in conflict with any provision of law governing the issues and that the findings are Page 26 of 27 C/SA/146/2018 JUDGMENT also not against the pleadings or evidence. In this view of the matter, the findings recorded by the two courts below are not capable of being set aside by this Court in exercise of its second appellate jurisdiction under section 100 of the CPC, rather they are binding on this Court.
(iii) Thirdly, apart from what is held above, the questions formulated are neither debatable nor arguable and nor did they involve any question of law which could be said to arise in the case. In other words, sine qua non for admitting the second appeal, is existence of "substantial question of law in the case" and, therefore, unless the questions framed are debatable, or/and arguable or/and involving any legal question, this Court has no jurisdiction to formulate such questions treating them to be the substantial questions of law.
20. In view of the aforesaid discussion, this second appeal fails and is hereby dismissed.
(J.B.PARDIWALA, J) Vahid Page 27 of 27