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2003 DIGILAW 711 (RAJ)

Rameshwar S/o Nathu Lal v. Ram Ratan S/o Lala Ram

2003-05-09

HARBANS LAL

body2003
JUDGMENT 1. - This civil second appeal under section 100 CPC has been preferred against the judgment and decree dated 4.4.2001 passed by the learned District Judge, Tonk in Civil Regular Appeal No. 11/96 whereby the appeal has been dismissed and the judgment and decree of the learned Addl. Civil Judge (JD), Tonk dated 2.4.1996 in Civil Original Suit No. 10/79 has been affirmed. 2. Briefly stated, the relevant facts are that plaintiff (respondent No. 1 herein) instituted a suit for redemption of mortgage of property in the trial Court stating therein that Ramesh Chand S/o Rampal had mortgaged the property in question for a consideration of Rs. 1,000/- with the appellant-defendant on 3.7.1971. The said property was then purchased by plaintiff vide registered sale-deed dated 15.3.1978. So, he was entitled for redemption of the mortgaged property. The defendant (appellant herein) pleaded that the said property was purchased by him on 7.2.1971 through an agreement for sale and he was in possession of the said property since 1964. It was also pleaded that a suit being Civil Original Suit No. 8/78 was filed by him before the Court of District Judge, Tonk for specific performance of the contract which was though dismissed, yet, the appeal preferred by the defendant (appellant herein) being S.B. Civil First Appeal No. 127/84 was pending in the High Court. As the above-said appeal was pending in the High Court, the trial Court had no jurisdiction to decide the suit for redemption of mortgage. But after due trial of the suit, the suit was decreed on 2.4.1996, the judgment and decree were affirmed in appeal which appellate judgment and decree are under challenge in this appeal. 3. I have heard learned counsel for the parties on the admission of this appeal. 4. Learned counsel for the appellant has contended that Rampal having not been impleaded as a party to the suit for redemption of mortgaged property which has been decided during the pendency of the appeal in this High Court, there are `substantial questions of law' as suggested in para 2(i) to 2(iv) of the memorandum of appeal involved in this appeal on the basis of which this appeal should be admitted for hearing. 5. Learned counsel for the respondent No. 1 has supported the judgments of the Courts below and has vehemently opposed the contention of the learned counsel for the appellant. 6. 5. Learned counsel for the respondent No. 1 has supported the judgments of the Courts below and has vehemently opposed the contention of the learned counsel for the appellant. 6. I have perused the impugned judgment as also the record. 7. It is now well settled that a second appeal can be entertained only on a `substantial question of law'. The Hon'ble Apex Court has been taking a very serious view of the matter emphasising time and again that the High Court should not entertain a second appeal under section 100 CPC unless it raises a 'substantial question of law'. 8. In Panchugopal Barua & Ors. v. Umesh Chandra Goswami & Ors., AIR 1997 SC 1041 , the Hon'ble Supreme Court has laid down that while entertaining the second appeal, the Court should not over-lock (sic over-look) the change brought about by the CPC (Amendment Act of 1976) restricting the scope of second appeal drastically. The existence of a `substantial question of law' is a sine qua non for the exercise of jurisdiction under the amended provision of Section 100 CPC. It has also been laid down that the Courts of law are under an obligation to further the clear intendment of the Legislature and not to frustrate it by ignoring the same. 9. The Hon'ble Apex Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213 , has held that the right of appeal is a creation of statute. So, it has to be regulated in accordance with law in force, ensuring full compliance of the conditions mentioned in the provision. The Court has no power to enlarge the scope of those grounds mentioned in the statutory provision. Similar view has been taken in Kashibai v. Parwatibai, (1995) 6 SCC 273 . 10. A second appeal can, however, be entertained even on question of fact provided the Court is satisfied that the findings of the Courts below were vitiated by non-consideration of material evidence on record or the approach of the Court below to the matter was palpably erroneous or perverse. 11. When the second appeal is examined in the light of the aforesaid guidelines handed down by the Hon'ble Supreme Court, it is obvious that there is no pith and substance in the contention of the learned counsel for the appellant. No substantial question of law is involved in this appeal. 11. When the second appeal is examined in the light of the aforesaid guidelines handed down by the Hon'ble Supreme Court, it is obvious that there is no pith and substance in the contention of the learned counsel for the appellant. No substantial question of law is involved in this appeal. The suggested substantial questions of law in para 2(i) to (iv) pertain to concurrent findings of fact. There is neither any omission to consider material evidence on record nor misreading of evidence. It also cannot be said that the approach of the Courts below is erroneous or perverse. Thus, in the instant case, no interference in the concurrent findings of facts is called for, justified and warranted. So, no case for admission of this second appeal is made out.This second appeal, therefore, deserves to be and is hereby dismissed at admission age. Appeal dismissed. *******