Delhi High Court
Kishan Chand Saini vs Krishan Singh Saini on 3 June, 2010
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. No.88 of 2002 & C.M. Appl. Nos.12148 of 2005, 1071, 16006 of 2006
% 03.06.2010
KISHAN CHAND SAINI ...... Appellant
Through: Mr. K.R. Chawla & Mr. Aditya Sharma,
Advocates.
Versus
KRISHAN SINGH SAINI ......Respondent
Through: In person.
Reserved on: 18th May, 2010
Pronounced on: 3rd June, 2010
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
1. This second appeal was filed in the year 2002 by the appellant to set aside the judgment and decree dated 28th January, 1987 passed by Sub-Judge, First Class, Delhi and to set aside the judgment dated 31st January, 2002 passed by first appellate court upholding the order of Sub-Judge in R.C.A. No.17 of 2001. No questions of law were framed by the appellant in the memorandum of appeal. Only grounds of appeal were mentioned in general. The following grounds could be culled out by this court on the basis of which the order of first appellant court was assailed :-
a. That the court below passed the judgment and decree relying upon a document Ex. PW 3/D1 a Bank Statement which was inadmissible in evidence and not relying on the document Ex. PW 4/1 which was issued by the appellants bank.
b. That the court below misread the evidence as the court overlooked the fact that all the 3 witnesses produced by the respondent with regard to R.S.A. No.88/2002 Page No.1 of 7 the payment were interested witnesses.
c. The court wrongly held that since the document Ex. DW 3/Z1, DW 3/9, Ex. PW 3/12 & Ex. PW 3/13 were not confronted to the respondent so they cannot be used against him.
d. That the courts below did not discuss material and relevant documents such as deposit applications.
e. That the court below did not consider the reply dated 29.09.1977 in as much as the respondent admitted the fact that there was no dispute between the appellant and respondent as to payment of the decreetal amount.
2. This court in Modipon Limited Vs. Aruna Kohli & Anr.; R.S.A. No.12 of 2010 decided on 21st April, 2001 observed as under :-
"10. The first appeal is a matter of right of a litigant and in the first appeal, the court is supposed to re-appreciate the entire evidence in the light of the arguments of the appellant and the First Appellate Court can substitute its own findings of facts and findings of law, on being convinced that the order of the Trial Court was not in accordance with law or the findings of facts were not based on the evidence. However, the Second Appeal cannot be entertained in a casual manner. The policy of legislature is that there should be rest to the litigation and Second Appeal should not be entertained unless a substantial question of law is raised by the appellant and framed by the Court. In State Bank of India & Ors vs. S.N. Goyal (2008) 8 SCC 92, the Hon'ble Supreme Court laid down as to what was the substantial question of law in the following words:
"Second Appeals would lie in cases which involve substantial questions of law. 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 question 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. In the context of Section 100 CPC, 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 R.S.A. No.88/2002 Page No.2 of 7 outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this Court (or by the High Court concerned so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the High Court concerned), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the High Court concerned) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this Court (or the High Court concerned) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two viewpoints, it can be said that a substantial question of law arises or consideration. There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case."
11. It is also a settled law that in Second Appeal the High Court cannot set aside concurrent findings of facts given by the courts below, and can entertain an appeal only if the appeal raises a substantial question of law. In Veerayee Ammal Vs. Seeni Ammal; (2002) 1 SCC 134, the Hon'ble Supreme Court observed that amending Act of CPC was introduced on the basis of various Law Commission reports with an intention to minimize litigation and to give litigant a fair trial in accordance with the accepted principles of natural justice, to expedite the disposal of civil suits and proceedings so that justice is not delayed. The Hon'ble Supreme Court observed that it has noticed with distress that despite amendment, the provisions of Section 100 of the CPC were not being clearly followed and amendment was substantially being ignored or generously applied by some judges of the High Courts R.S.A. No.88/2002 Page No.3 of 7 with the result that objective intended to be achieved by the amendment of Section 100 appeared to have been frustrated. The Hon'ble Supreme Court in the above case observed as under:
"8. To the same effect are the judgments reported in Sinha Ramanuja jeer v. Ranga Ramanuja jeer, V. Ramachandra Ayyar V. Ramalingam Chettiar and Madamanchi Ramappa v. muthaluru Bojjappa. After its amendment, this Court in various judgments held that the existence of the substantial question of law is a condition precedent for the High Court to assume jurisdiction of entertaining the second appeal. The conditions specified in Section 100 of the Code are required to be strictly fulfilled and that the second appeal cannot be decided on merely equitable grounds. As to what is the substantial question of law, this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spinning & Manufacturing Co.Ltd. [AIR 1962 SC 1314] held that: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion or 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."
9. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors. [JT 1999 (3) SC 163] this Court again considered this aspect of the matter and held: "If the question of law termed as substantial question stands already decided by a large 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 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 substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be R.S.A. No.88/2002 Page No.4 of 7 raising a substantial question of law. But where it is found that the appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India & Anr. v. Ramakrishna Govind Morey (AIR 1976 SC 830) held that whether trial court should not have exercised its jurisdiction differently is not a question of law justifying interference."
3. There is no gain saying that if the appreciation of evidence is considered erroneous by the appellant that cannot be a ground for entertaining a second appeal (Thimmaiah vs. Ningamma; (2000) 7 SCC 409). Merely because on appreciation of evidence another view was equally possible, would not clothe the High Court to assume jurisdiction by terming the question of fact as a question of law [Paras Nath Thakur vs. Smt. Mohani Dasi (deceased); AIR 1959 SC 1204 and Veerayee Ammal vs. Seeni Ammal;
AIR 2001 SC 2920]. It has been the consistent view that High Court has no jurisdiction to entertain second appeal on the ground of erroneous finding of fact based on appreciation of relevant evidence although where the findings of fact are vitiated by total non-
consideration of the evidence available on record or by an illegal approach on the matter, the High Court may entertain a second appeal. However, this has to be very rare and in exceptional cases. The general rule is that the second appeal cannot be entertained on the issues of facts and the High Court cannot disturb findings of fact given by the courts below nor an appeal can be admitted unless a case was made out under Section 100 of CPC and a question of law was clearly spelled in the memorandum of appeal and at the time of admission, the High Court considered such question of law, as raised by the appellant, as a substantial question of law and framed the same for consideration at the R.S.A. No.88/2002 Page No.5 of 7 time of admission of the appeal. The rationale behind this is that the appreciation and re-
appreciation of evidence must come to an end with the first appellate court and only important legal issues could be taken up by the second appellate court. Before amendment of CPC, that is, prior to the year 1976, the cases decided by Privy Council and by the Supreme Court clearly restricted the scope of interference under Section 100 of CPC. The consistent position has been that the court should not interfere with the concurrent findings of fact. After the year 1976, scope of Section 100 CPC got further curtailed and narrowed down and the second appellate court could have jurisdiction to interfere under Section 100 of CPC only where substantial question of law was involved and such substantial questions of law was clearly formulated in the memorandum of appeal by the appellant and at the time of admission of second appeal by the High Court itself. It is bounden duty and obligation of the High Court to formulate substantial question of law and then only to proceed further with the second appeal.
4. Unfortunately in this case not only the appellant filed the second appeal casually without formulating question of law as required under Section 100 of CPC but this Court with equal casualness admitted the appeal with single word 'Admit' and the appeal has been dragged by the appellant on lame excuses deliberately and successfully right from the year 2002 till the year 2010 in order to deprive the respondent of the fruits of the decree.
5. Of the questions given in paragraph No.1 above, culled out from the grounds of appeal, none is a question of law. All of them are questions regarding appreciation of evidence and I consider that this appeal ought to have been dismissed on the very first day when it was presented to the court but the appellant had successfully carried this appeal for eight long years.
R.S.A. No.88/2002 Page No.6 of 76. Notice of the appeal was issued to the respondent by this court without considering if there was any question of law involved or not and trial court record was requisitioned. Thereafter, when the matter was taken up on 11th March, 2003 for arguments, counsel for the appellant sought adjournment on the ground that he had not been able to inspect the trial court record. On 9th July, 2003, counsel for the appellant submitted that he had not prepared the case and wanted time to study the same. On 3rd September, 2003, the second appeal was admitted without a question of law being raised or framed and was directed to be listed in due course. On 13th October, 2003 when the matter was taken up, none appeared for the appellant and the appeal was dismissed and thereafter an application for restoration was made which was allowed on 4th February, 2004 and thereafter this appeal has just been adjourned on one or the other ground. The appellant has seen to it that the appeal is not heard and he enjoys the stay as long as possible.
7. I consider that the appellant deliberately filed this frivolous appeal and dragged it for eight years. The appeal is liable to be dismissed with exemplary costs. The appeal is dismissed with costs of Rs.1 lac to the respondent.
SHIV NARAYAN DHINGRA J.
JUNE 03, 2010 'AA' R.S.A. No.88/2002 Page No.7 of 7