Telangana High Court
Smt.A.Sujatha vs Mr.C.Raghurama Rao on 24 January, 2025
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE Dr. JUSTICE G.RADHA RANI
SECOND APPEAL No.1249 of 2004
JUDGMENT:
This Second Appeal is filed by the appellant - appellant - defendant aggrieved by the judgment and decree dated 24.03.2004 passed in A.S.No.106 of 2003 by the learned VI Additional District & Sessions Judge (Fast Track Court), Nizamabad confirming the judgment and decree dated 16.04.2003 passed in O.S.No.70 of 1996 by the learned Senior Civil Judge, Nizamabad.
2. The respondent is the plaintiff and the parties are hereinafter referred as arrayed before the trial court.
3. The plaintiff filed the suit for recovery of money of Rs.68,800/- with future interest @ 2 % per month on the decretal amount. The plaintiff averred that he gave the defendant a sum of Rs.40,000/- as loan on 27.07.1993 at Nizamabad in the presence of two witnesses by name Sri B.H.Raj Gopal Rao and Sri L.Sreedhar and the defendant executed a promissory note on 27.07.1993 in favor of the plaintiff at Nizamabad for the said loan amount agreeing to repay the same on demand along with interest @ 2 % interest per month. Subsequently, when the plaintiff approached the defendant and demanded her to repay the loan amount, she dodged the matter. She failed to pay any amount to 2 Dr.GRR, J sa_1249_2004 the plaintiff for nearly three (03) years. As such filed the suit for an amount of Rs.68,800/- for the principal amount of Rs.40,000/- and interest @ 2 % per month on the same from 27.07.1993 to 26.07.1996 (for a period of three years), which comes to Rs.28,800/-.
4. The defendant filed written statement contending that she was running a school in the name and style of Suryodaya Convent at Nizamabad. The plaintiff worked in the said institution as a private teacher. A person by name Sreedhar, who was shown as an attestor of the suit document worked as Principal in the above institution since long time. The plaintiff was related to him. The relationship between the said Sreedhar and the defendant was strained. Due to which, the plaintiff filed the present suit to help the said Sreedhar. She further submitted that the plaintiff used to receive salary whenever he required in a lump sum manner. Thus, the defendant had to pay a sum of Rs.40,000/- to the plaintiff, for which the defendant executed the document. Later on, on different occasions, the amount was paid to the plaintiff. The plaintiff received the same through bank withdrawals. Later on, he executed a receipt on 18.04.1996 in favor of the defendant acknowledging the entire amount received by him instead of returning the suit promissory note. In the month of June, 1996, the plaintiff left the institution of the defendant and in the month of July, 1996 filed the present suit and prayed to dismiss the suit.
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5. Basing on the said pleadings, the trial court framed the issues as follows:
(i) Whether the repayment and discharge pleaded by the defendant are true?
(ii) To what relief?
6. The plaintiff examined himself as PW.1 and got marked the original promissory note dated 27.07.1993 as Ex.A1, the receipt dated 27.07.1993 as Ex.A2, a photo-copy of the receipt dated 18.04.1996 for Rs.15,655/- as Ex.A3 and the termination order dated 25.03.1993 as Ex.A4. The defendant examined herself as DW.1 and got marked the receipt dated 18.04.1996 as Ex.B1. She got examined one of the attestors of Ex.B1 as DW.2 and the scribe of Ex.B1 as DW.3.
7. On considering the oral and documentary evidence on record, the trial court held that the defendant failed to establish the repayment of discharge pleaded by her, as such decreed the suit for Rs.40,000/- with interest thereon @ 12 % per annum from 27.07.1993 till the date of decree and @ 6 % per annum from the date of decree till realization with proportionate costs.
8. Aggrieved by the said judgment and decree passed by the learned Senior Civil Judge, Nizamabad, the defendant preferred A.S.No.106 of 2003. The same was heard by the learned VI Additional District & Sessions Judge (Fast Track Court), Nizamabad and vide judgment and decree dated 24.03.2004 4 Dr.GRR, J sa_1249_2004 dismissed the appeal with costs confirming the judgment and decree passed by the learned Senior Civil Judge, Nizamabad.
9. Aggrieved further, the defendant preferred this Second Appeal raising the following substantial questions of law:
(a) Whether the suit was barred by limitation or not as per the trial court decree dated 16.04.2003?
(b) Whether the admission of plaintiff's signature on discharge receipt Ex.B1 was not sufficient to dismiss the suit?
(c) Whether the plaintiff discharged his initial burden of proof i.e. removal of signed stamp from acquittance register and pasted to Ex.B1 receipt by defendant?
(d) Whether the plaintiff discharged his burden of producing the acquittance register, in which the stamp was removed or summoned any acquittance register from school to prove his defence?
(e) Whether the plaintiff failed to discharge his initial burden or not, in taking steps in referring Ex.B1 for expert examination?
(f) Whether the plaintiff was entitled for interest @ 12 % per annum and also @ 6 % per annum as adjudicated by courts below till realization without disproval of Ex.B1?
(g) Whether there was any prohibition under law to scribe receipt Ex.B1 by different person i.e. P.Kistaiah (DW.3), even though the plaintiff admitted his signature on Ex.B1?
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(h) Whether the plaintiff proved the suit claim in accordance with law? Whether the courts below came to a wrong conclusion or not without proving the removal of signed stamp from acquittance register?
10. This Court on 21.03.2005 admitted the Second Appeal on the grounds raised by the appellant in the grounds of appeal.
11. Heard Sri K.M.Mahendar Reddy, learned counsel for the appellant - defendant and Sri V.Ravi Kiran Rao, learned Senior Counsel representing Sri V.Rohit, learned counsel for the respondent - plaintiff on record.
12. Learned counsel for the appellant submitted that though he raised the ground of limitation in the grounds of appeal, he was not pressing the same, as the suit was filed on the last day of limitation. He further contended that no notice was issued by the plaintiff to the defendant before filing the suit. There were alterations in the promissory note marked under Ex.A1, which were admitted by the plaintiff. Hence, Ex.A1 was void as per Section 87 of the Negotiable Instruments Act (for short "NI" Act), 1881. The courts below placed the burden of proof on the defendant contrary to the Evidence Act, 1872, though the plaintiff admitted his signature on Ex.B1. The plaintiff failed to prove Ex.A1 by examining any scribe or attestor and no explanation was given by him and failed to discharge the initial burden laid upon him as per law. It was a settled law that plaintiff must prove his own case, but could not depend upon the weakness of the case of the defendant. The courts acted beyond the 6 Dr.GRR, J sa_1249_2004 pleadings and shifted the burden of proof on the defendant. The plaintiff admitted his signature on Ex.B1 and alterations in Ex.A1, which were sufficient to disprove the claim and no rejoinder was filed by him explaining the alterations, removal of revenue stamps from acquittance register nor summoned the said registers to prove the same nor given any explanation as to from where he got money of Rs.40,000/-. No books of accounts were filed. The defendant proved that she discharged the claim and paid the entire amount by adducing evidence and by examining herself as DW.1 and by examining the scribe and attestor as DWs.2 and 3. Though, there was no any written agreement to pay interest, the Court awarded the interest. Ex.A3 was a photo copy which could not be relied nor admitted in evidence. The plaintiff failed to prove his own documents. Interpretation of the terms and conditions of a document would constitute a substantial question of law and relied upon the following judgments:
1. Rajendra Lalit Kumar Agarwal v. Ratna Ashok Muranjan 1.
2. Indira Kour v. Sheo Lal Kapoor 2.
3. Messors Trojan v. R.M.N.N.Nagappa Chettiar3.
4. State of Madhya Pradesh v. Usha Devi 4 .
5. Narbada Devi Gupta v. Birendra Kumar 5.
6. Smriti Debbarma v. Prabha Ranjan Debbarma 6.1
(2019) 3 SCC 378 2 (1988) 2 SCC 488 3 AIR 1953 SC 235 4 (2015) 8 SCC 672 5 (2003) 8 SCC 745 7 Dr.GRR, J sa_1249_2004
7. Pachaippa Chettiar v. Muthu Krishna Naidu 7.
8. Spring Fields Financial Services Limited, Hyderabad v. State of Andhra Pradesh 8.
13. Learned Senior Counsel for the respondent on the other hand contended that it was the defendant, who executed the promissory note in favor of the plaintiff. As such, any alterations in the promissory note need to be attributed to the defendant. The defendant admitted execution of Ex.A1 but stated that it was for payment of salary. But she failed to file any bank withdrawals or statements to show that she repaid the amount. Two receipts were executed on 18.04.1996, one for Rs.15,655/- (the photo copy of it marked under Ex.A3, as the original was in the custody of the defendant), which was admitted by the plaintiff and another one for Rs.40,000/- (marked under Ex.B1), which was not admitted by the plaintiff. He further contended that no defence was taken by the defendant with regard to the plaintiff not having financial capability. As such, no issue was framed and no evidence was led with regard to the financial capability of the plaintiff. As the defendant admitted Ex.A1, no witnesses were examined. Both the courts below considered Ex.B1 as not a genuine document. The acquittance register was in the custody of the defendant (DW.1). Both DWs.2 and 3 were employees working under her and one of them was a relative of the defendant. The courts below after going through the entire oral and 6 2023 (2) ALD 28 7 2019 (1) Bank J 300 (Mad) 8 2006 (1) ALD (Criminal) 712 8 Dr.GRR, J sa_1249_2004 documentary evidence, decreed the suit. The Second Appellate Court is not a third court for trial on facts and relied upon the judgments of the Hon'ble Apex Court in Gurdev Kaur and Others v. Kaki and Others9 and Randhir Kaur v. Prithvi Pal Singh and others 10.
14. As seen from the substantial questions of law raised in the grounds of appeal by the appellant - defendant, one is on the point of limitation, which was not pressed by the appellant. The other questions raised were on the burden of proof contending that the burden of proof was wrongly placed upon the defendant, though the plaintiff failed to prove the initial burden laid upon him. As seen from the pleadings, the plaintiff contended that he advanced a loan of Rs.40,000/- to the defendant for the purpose of construction of school building on 27.07.1993 and that the defendant executed a promissory note and a receipt for receiving the said amount, but failed to repay the same. The defendant in her written statement admitted execution of Ex.A1 and contended that she repaid the same vide receipt dated 18.04.1996 marked under Ex.B1. As she had admitted the execution of Ex.A1 promissory note and had taken the plea of discharge, the burden lies upon the defendant to prove the plea of discharge taken by her. As such, both the trial court as well as the lower appellate court framed the issue and the point for determination placing the burden upon the 9 (2007) 1 SCC 546 10 (2019) 17 SCC 71 9 Dr.GRR, J sa_1249_2004 defendant "whether the repayment and discharge pleaded by the defendant is true?"
15. This Court does not find any error in framing the issue by the courts below placing the burden upon the defendant in view of the admission made by the defendant in the written statement with regard to execution of Ex.A1. As such, the plaintiff need not prove the execution of Ex.A1 by examining any of the attestors to the said document and any substantial questions of law arising out of it.
16. It was the contention of the learned counsel for the appellant that the plaintiff admitted that there was a material alteration in Ex.A1 promissory note stating that the date portion appeared to be altered. The plaintiff examined as PW.1 stated in his evidence that by looking into Exs.A1 and A2, the date was initially given as 29.07.1993, but made as 27.07.1993. As such, it was contended that Ex.A1 was void under Section 87 of the NI Act, 1881 and relied upon the judgment of the High Court of Madras in Pachaippa Chettiar v. Muthu Krishna Naidu 11 and of the judgment of the High Court of Andhra Pradesh in M/s. Spring Fields Financial Services Limited, Hyderabad v. State of Andhra Pradesh and another (cited supra). 11
2018 (4) CTC 190 10 Dr.GRR, J sa_1249_2004
17. The effect of alteration and whether the same was material or not was also discussed by the High Court of Madras in the above judgment by referring to the judgments of the Hon'ble Apex Court and the High Court of Andhra Pradesh in Allampati Subba Reddy v. Neelapareddi Ramanareddi [AIR 1966 AP 267], wherein it was held that:
" It must be remembered that it is not any and every alteration that avoids the instrument. To have that effect the alteration must be in a material particular.
7. It is true that in two cases alterations, though material, do not vitiate the instrument; firstly, when the alteration is made before the promissory note is executed, and secondly, if the alteration made was merely to correct a mistake, or to make it what it was originally intended to be. As stated earlier, the Section 87 itself states that the alteration can be made with the consent of the parties, or to carry out the common intention of the original parties. Any mistake occurring before the execution of the promissory note can, however, always be corrected before the document is actually executed.
8. The general rule in English law followed in India is that a party having custody or control of a document produced in evidence must explain the alteration. When the instrument on its production appears to have been altered, it is a general rule that the party offering it in evidence must explain its appearance, because every alteration in the case of a negotiable instrument renders it suspicious. It is only reasonable that the party claiming under it should remove the suspicion. It is true that it is not on every occasion that a party tendering an instrument in evidence is bound to explain any material 11 Dr.GRR, J sa_1249_2004 alteration that appears upon its face. He must, however, explain when he is seeking to enforce it. It is plain that when the alteration appears to have been made contemporaneously with the document, or if it is made at some subsequent period with the privity of the parties charged and there is no fraud, it does not affect the validity of the instrument."
18. However, considering the evidence of PW.1, wherein he stated that Exs.A1 and A2 were both of the same date i.e. 27.07.1993 and the witnesses, who signed on Exs.A1 and A2 also put the dates as 27.07.1993 under their signature and though the date was initially given as 29.07.1993, but appeared to be made as 27.07.1993 and the alteration appears to have been made contemporaneously along with the document and there appeared to be no benefit accrued to the plaintiff by making such alteration, this Court considers that the said alteration was not material and would not necessarily result in the avoidance of the promissory note and that the same would amount to any substantial question of law.
19. Both the trial court as well as the first appellate court considering the oral and documentary evidence adduced by the witnesses, came to the conclusion that the defendant failed to establish the repayment of discharge pleaded by her of the amount covered under Ex.A1.
20. The trial court held that:
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8. The plaintiff disputed discharge of the loan amount pleaded by the defendant and now in considering the evidence of defendant, it is to be seen that by February, 1996, the relations between plaintiff and the defendant were not good. The plaintiff worked as Clerk in the educational Institution run by the defendant. The plaintiff was paid all his arrears of salary on 18-4-1996 under the original of Ex.A3 of Rs.15,655/-. The said receipt was in the hand writing of the plaintiff himself, whereas on the same day, the defendant said to have got the receipt executed by the plaintiff towards repayment of the loan amount covered under Ex.Al. It is to be borne in mind as to why the defendant failed to obtain the receipt Ex.B1 in the handwriting of the plaintiff himself as on that day, the plaintiff was paid Rs.15,655/- towards the salary upto February, 1996 and for that the plaintiff executed receipt Ex.A3, whereas when it comes to the receipt Ex.B1, where under the defendant pleads discharge of the loan amount covered under Ex.A1, it is in the hand writing of one P. Kistaiah. There are two witnesses to Ex.B1 and one of them by Hyma Rao, was explained as DW.2 and the scribe of Ex.B1 was examined as DW.3. The plaintiff admits his signature found on Ex.B1 on revenue stamp and it is his contention that the defendant managed to take out one revenue stamp containing his signature taken in the acquittance register and pasted the same on Ex.B1 and got prepared Ex.B1 showing that plaintiff received the entire amount of Rs.40,000/- and interest accrued thereon by 18-4-1996 from the defendant. The first question that remained unexplained is when PW.1 executed receipt Ex.A4 for the amount of Rs.15,655/- paid towards his salary, why not the defendant obtained receipt Ex.B1 also being scribed by the plaintiff himself as Ex.B1 is also of the same date of 18-4-1996.
9. It is admitted fact from the evidence of DWs.1 to 3 the two revenue stamps found on Ex.B1 were not passed at a time. In the evidence of DW.3, in the chief examination, it is said that after drafting Ex.B1 two revenue stamps were passed on it.
When it comes to the cross examination of DW.3. he deposed in the same lines as that of DW.2 saying that one stamp was affixed on Ex.B1 and another stamp was affixed later and that the plaintiff put his signature on both stamps. It is the same evidence of DW.2 in his cross examination wherein he also deposed to the effect that initially, there was only one revenue stamp affixed to Ex.B1 and plaintiff put his signature on the one revenue stamp there on Ex.B1 and that later on, the defendant asked him to get one more revenue stamp for affixing the same on Ex.B1 and he went out and brought another revenue stamp and the same was also affixed on the receipt Ex.B1 and that plaintiff put another signature on the second revenue stamp. Now, if we carefully go through the 13 Dr.GRR, J sa_1249_2004 receipt Ex.B1, there are two one rupee stamps affixed to Ex,B1 and the whole signature of PW.1 appeared on only one revenue stamp and it is also clear as the line drawn under the signature of PW.1 is not a straight line on the two revenue stamps but there is some difference on the second revenue stamp and it clearly show that the second revenue stamp was affixed subsequently. DW.2 made it clear that no amount was paid by the defendant to the plaintiff in his presence. Whereas in the evidence of DW.3, there is nothing said with regard to the payment said to be made by defendant to the plaintiff either it was made in his presence or it was paid to the plaintiff before his arrival or after he left that place. So, evidence of DW.3 is silent as to the aspect of payment of the amount by the defendant to the plaintiff under Ex.B1.
10. The plaintiff was terminated of his services as a clerk in the educational institution run by the defendant vide termination order marked as Ex.A4 and it is dated 25-3-1996 and it was further made clear that the defendant did not agree to pay the salary to the plaintiff for the month of March, 1996. In Ex.A4, it was further made clear that PW.1 was not attending to his duties properly even since February, 1996 and in such a situation when the defendant is making payment of the entire loan amount to the plaintiff, she should have taken necessary precautions like getting back the pronote, Ex.A1 and if at all the pronote Ex.A1 was said to be available with the plaintiff and for that reason, he could not return the pronote to the defendant, then the defendant ought to have made payment of the amount through cheque so that repayment can be evidenced by a document which nobody could dispute or denied. Above all, the very way in which the plaintiff receiving Rs.15,565/- towards arrears of salary on 18-4-1996 why not the defendant obtained Ex.B1 also in his own hand writing so that there cannot be any dispute from the side of plaintiff in future remained unexplained. That plaintiff pleaded that he was not paid his salary every month but as and when there was any need of money, he was paid lump sum amount of salary and this fact is very much established from Ex.A3 as the salary of the plaintiff per month was said to Rs.1300/- and the amount paid under Ex,A4 is of Rs.15,655/- and it amounts that the plaintiff was not paid salary for about more than a year before his services were terminated by the defendant. Now, if we carefully go through Ex.B1, it is only said that the principal amount of Rs.40,000/- along with interest accrued thereon was paid to plaintiff by the defendant under Ex.B1. But there was no specific amount mentioned in it. The plaintiff disputed repayment of the amount of the pronote of Ex.Al and in such a situation, except Ex.B1, the oral evidence adduced by the defendants 2 and 3 is not in any way supporting the version of 14 Dr.GRR, J sa_1249_2004 the defendant about the repayment of the loan amount to the plaintiff as neither of these two witnesses deposed about the payment of the amount under Ex.B1 by the defendant to the plaintiff and on the other hand, DW.2 made clear that no amount was paid by the defendant to the plaintiff in his presence of the amount covered under Ex.B1. So, in all these circumstances, when the relations between the plaintiff and the defendant were strained even by February, 1996 itself and when the plaintiff was very much available on 18-4-1996 and he passed receipt Ex.A3, failure on the part of the defendant in getting the receipt Ex.B1 also being taken in the hand writing of plaintiff himself, clearly goes against the plea of discharge taken by the defendant. The plaintiff in admitting the signature found on Ex.B1 on one revenue stamp, took the plea that his signature contained on one rupee revenue stamp affixed in the acquittance register was taken by the defendant and with the help of that revenue stamp, Ex.B1 was prepared, gains strength as neither of the witnesses DWs.2 and 3 deposed about the alleged payment under Ex.B1 by the defendant to the plaintiff. So, in these circumstances, I answer the issue with the finding that the defendant failed to establish the repayment of discharge pleaded by her of the amount covered under Ex.A1.
21. The Lower Appellate Court also on considering the pleadings and evidence of the witnesses, held that:
9. In this case the case of plaintiff is that he worked as a clerk in the school being run by the defendant and that for running that school the defendant borrowed Rs.40,000/- and executed Ex.Al promissory note and Ex.A2 receipt on 27-7-1993 and as the defendant failed to repay the debt he filed the suit. As per the admitted case the plaintiff was not regular in duties. The defendant terminated the services of the plaintiff by the issuing Ex.A4 termination order dated 25-3-1996, and paid the due amount of salary up to February, 1996 under original of Ex.3 receipt dated 18-4-1996. The defendant is pleading that on 18-4-1996, she paid entire due amount of Ex.Al and A2 under Ex.B1 receipt dt.18-4-1996. To prove Ex.B1, the defendant herself examined an DW.1. one Hyma Rao a driver of the defendant school bus who is attestor of the Ex.B1 as Dw.2 and one P.Kistaiah, scribe of Ex.B1 as DW.3. The case of the plaintiff is that the defendant created Ex.B1 by lifting a revenue stamp containing his signature, from acquittance register of the school of defendant. The trial court believed the version of plaintiff and dismissed the suit. I have also carefully perused the revenue stamps affixed on Ex.B1. stamps affixed on Ex.B1.
There are two one rupee revenue affixed on Ex.B1. The 15 Dr.GRR, J sa_1249_2004 signature of the plaintiff is on the first stamp. There is under line under the signature of the plaintiff and it extended to the second revenue stamp. There is a date underneath the said under line. The date 18 is on the first stamp and the month 4 and the year 96 are on the second revenue stamp. With regard to the presence of two one rupee stamps DW.1 in his cross- examination in page No.5 deposed as follows:
"It is true that in the acquittance register only one rupee stamp is used for the payments salary of the employee. It is not true to suggest that the second revenue stamp on Ex.B1 was pasted and as such the line drawn under the signature of plaintiff is not coming in the same line. It is not true to suggest that the date put on the revenue stamp in Ex.B1 was put subsequently".
DW.2 one of the attestors of Ex.B1 in his cross-examination deposed as followed:
"The plaintiff put his signature of one revenue stamp of document and the defendant asked me to get one more revenue stamp for affixing the same on Ex.B1. For that purpose I left that place and I brought another revenue stamp and same was also affixed on the receipt and the plaintiff put another signature on the second revenue stamp".
But there is no signature of the plaintiff on the second revenue stamp. This witness is stating that the second revenue stamp was affixed subsequently. Dw.3 scribe of Ex.B1 in his cross- examination deposed that:
"The plaintiff put his signature on the two stamps found on Ex.B1. The witnesses volunteers that one stamp was affixed first and another stamp was affixed later on and the plaintiff put his signature on both the stamps".
But the signature of plaintiff is not on the second stamp. I have carefully perused the underline, which is underneath the signature of plaintiff, by using a magnifying glass and found the said line is not one line. The line which is on the second revenue stamp starts from the first stamp. But there are clear signs that the second line was drawn subsequently. The starting point of second line was not mixed with the first line and there is clear sign of drawing second line from the first stamp and extended to the second stamp. The date put under the signature is 18/4/96, the figures 4 and 96 in Ex.B1 are different to that of 16 Dr.GRR, J sa_1249_2004 the admitted figures written by the plaintiff in Ex.A3. Thus the evidence of DWs. 2 and 3 physical features of the underline and the date put under the signature in Ex.B1 clearly goes to show that the defendant created Ex.B1 by using a revenue stamp containing the signature of plaintiff in acquittance register. Thus it is proved beyond reasonable doubt that the defendant created Ex.B1 by using a revenue stamp containing the signature of plaintiff in acquittance register. So, I am of the opinion that the learned Senior Civil Judge rightly discarded Ex.B1. In the absence of Ex.B1, the defendant has no case to contest the suit. So the learned Senior Civil Judge rightly decreed the suit. Thus, there is nothing to interfere with the judgment and decree passed by the learned Senior Civil Judge and this appeal is liable to be dismissed with costs of plaintiff."
22. Thus, both the courts below on considering the oral and documentary evidence on record came to the conclusion that Ex.B1 was not a genuine document and that the same was created by the defendant by using a revenue stamp containing the signature of plaintiff in the acquittance register.
23. The Hon'ble Apex Court in Gurudev Kaur and Others v. Kaki and Others (cited supra), held that:
"70. Now, after the 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble".
The effect of the amendment mainly, according to the amended section, was:
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(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such question;
(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;
(iv) Another part of the Section is that the appeal shall be heard only on that question.
72. When Section 100 C.P.C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law.
37. In Durga Chowdharani v. Jawahar Singh [ILR (1891) 18 Cal 23 (PC), the Privy Council held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may seem to be. The clear declaration of law was made in the said judgment as early as in 1891. This judgment was followed in the case of Ramratan Shukul v. Mussumat Nandu [ILR (1892) 19 Cal 249 (PC) and many others. The Court observed:
"It has now been conclusively settled that the third court...cannot entertain an appeal upon question as to the soundness of findings of fact by the second court, if there is evidence to be considered, the decision of the second court, however unsatisfactory it might be if examined, must stand final."
38. In Ram Gopal v. Shakshaton [ILR (1893) 20 Calcutta 93 (P.C.)], the Court emphasized that a court of second appeal is not competent to entertain questions as to the soundness of a finding of facts by the courts below.
24. In Randhir Kaur v. Prithvi Pal Singh and Others (cited supra) also, the Hon'ble Apex Court held that:
"In Kshitish Chandra Bose v. Commissioner of Ranchi [(1981) 2 SCC 102] - three Judges, of this Court held that the 18 Dr.GRR, J sa_1249_2004 High Court has no jurisdiction to entertain second appeal on findings of fact even if it was erroneous. The Court held as follows:-
"11. On a perusal of the first judgment of the High Court we are satisfied that the High Court clearly exceeded its jurisdiction under Section 100 in reversing pure concurrent findings of fact given by the trial court and the then appellate court both on the question of title and that of adverse possession. In Kharbuja Kuer v. Jangbahadur Rai [AIR 1963 SC 1203 : (1963) 1 SCR 456], this Court held that the High Court had no jurisdiction to entertain second appeal on findings of fact even if it was erroneous. In this connection this Court observed as follows:
"5. It is settled law that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact.
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7. ... As the two courts approached the evidence from a correct perspective and gave a concurrent finding of fact, the High Court had no jurisdiction to interfere with the said finding."
To the same effect is another decision of this Court in the case of R. Ramachandran Ayyar v. Ramalingam Chettiar [AIR 1963 SC 302 : (1963) 3 SCR 604] where the Court observed as follows:
"12. ... But the High Court cannot interfere with the conclusions of fact recorded by the lower appellate court, however erroneous the said conclusions may appear to be to the High Court, because, as the Privy Council observed, however, gross or inexcusable the error may seem to be there is no jurisdiction under Section 100 to correct that error."
25. Thus, the above pronouncements lay down that there is no jurisdiction to entertain a Second Appeal on findings of facts, even though the same were 19 Dr.GRR, J sa_1249_2004 erroneous. But, however, as both the courts below appreciated the evidence in a correct perspective and gave concurrent finding on facts, this Court considers that there are no grounds to interfere with the said finding and any substantial questions of law arising from out of it.
26. In the result, the Second Appeal is dismissed with costs confirming the judgments of the courts below in A.S.No.106 of 2003 dated 24.03.2004 and O.S.No.70 of 1996 dated 16.04.2003.
As a sequel, miscellaneous applications pending in the appeal, if any shall stand closed.
____________________ Dr. G. RADHARANI, J Date: 24th January, 2025 Nsk.