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Madhya Pradesh High Court · body

2009 DIGILAW 1175 (MP)

Ponnamma John v. Vijaykumar Tanwar (deceased) through Legal Representatives

2009-10-07

SHANTANU KEMKAR

body2009
ORDER Shantanu Kemkar, J. 1. Initially the petitioner had filed this Misc. Civil Case under Order XLV Rule 2 of the Code of Civil Procedure (for short 'CPC') read with Article 133(1)(a) & (b) and Article 134A of the Constitution of India and under Rules 1 and 2 of Chapter XXI of the High Court of Madhya Pradesh Rules, 2008 seeking a certificate under Article 133(1)(a) and (b) of the Constitution in accordance with Form No. 31. However, on a preliminary objection being raised by the respondents, the petitioner prayed for amendment of the prayer made in the MCC and the said prayer to amend was allowed. Thereafter as amended the present MCC is treated and heard as a petition under Order XLV Rule 2 of the CPC read with Rules 1 and 2 of Chapter XXI of the High Court of Madhya Pradesh Rules, 2008 with a prayer to grant a certificate in terms of Rule 3 and Rule 7 of Order XLV of the CPC on the substantial questions of law stated in the memo of petition. 2. According to the petitioner following two substantial questions of law of general importance need to be decided by Hon'ble the Supreme Court: (1) The interpretation of Section 3 (1) (b) of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. (2) Omission to consider the effect of Article 54 of the Limitation Act, by which the suit cannot said to be time-barred. 3. Briefly stated the petitioner's second appeal filed under Section 100 of the CPC challenging the concurrent findings of fact recorded by the two Courts below was dismissed by this Court vide judgment dated 11-5-2009 passed in Second Appeal No. 154/1991. The operative paragraphs of the said judgment reads thus: On 28-1-1992, this appeal was admitted on the following substantial questions of law: (i) Whether the Courts below were in error in holding that plaintiffs suit was barred by limitation ? (ii) Whether the Courts below were legally in error in holding that the contract had become impossible under Sections 32 and 56 of the Contract Act, 1872 ? (iii) Whether Government order of exemption (Exh. D-4) is not binding on the plaintiff and does not affect his rights to claim specific performance ? (ii) Whether the Courts below were legally in error in holding that the contract had become impossible under Sections 32 and 56 of the Contract Act, 1872 ? (iii) Whether Government order of exemption (Exh. D-4) is not binding on the plaintiff and does not affect his rights to claim specific performance ? (iv) Whether the plaintiff is entitled in any case in the alternative to a decree for damages or return of money paid to defendant ? Thereafter on 8-7-2008, two more additional substantial questions of law have been framed which are as under: (i) Whether the Repeal Act has any retrospective effect to render the judgment and decree of the Courts below ineffective ? (ii) Whether after Repeal Act has come into force, the respondents could take the defence of Section 32 read with Section 56 of the Contract Act to avoid specific performance of the contract ? Shri Brajesh Pandya, learned Counsel for the appellant has argued that the finding recorded by the Courts below to hold the plaintiff's suit to be barred by limitation is not correct. According to him the plaintiff was denied the execution of the sale-deed by the defendants vide their reply dated 18-6-1986 of the notice issued by the plaintiff. In the circumstances, he argued that in view of Article 54 of the Limitation Act, the plaintiffs suit was required to be treated by the Courts below to be within limitation. In support of his contention he relied upon the judgment of this Court in the case of Basantilal Jagannath Mahajan v. Rameshwar Prasad Nanoolal Mahajan 1994 MPLJ 113 . His next contention was that the defendants took a plea of impossibility of performance of the contract in view of Sections 32 and 56 of the Contract Act. This plea according to him is not available to the defendants in view of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short 'the Repeal Act') which came into force in the State of M.P. on 17-2-2000. He argued that in view of the Repeal Act the judgment and decree passed by the Courts below have become ineffective and in view of this subsequent development the plaintiff right to get the decree for specific performance of the contract has been revived. He argued that in view of the Repeal Act the judgment and decree passed by the Courts below have become ineffective and in view of this subsequent development the plaintiff right to get the decree for specific performance of the contract has been revived. Smt. Meena Chaphekar, learned Counsel for the respondents while supporting the impugned judgment and decree passed by the two Courts below has argued that the plaintiff has not come with clean hands. She pointed out the discrepancies in the plaint averments and the oral and documentary evidence led by the plaintiff/appellant about the size of the plot and the nature of agreement. She placed reliance on Section 3 (1) (b) of the Repeal Act and contended that in view of the repeal of the Ceiling Act the validity of the order granting exemption under Sub-section (1) (b) of the Section 20 or the action taken thereunder are saved. She argued that the defendants were bound by the conditions imposed in the sanction order passed by the Competent Authority under the Ceiling Act. She submitted that in view of the conditional sanction the performance of the contract was impossible for the defendants. She further submitted that the defendants have already acted upon in terms of the sanction (Exh. D-4) and their action is saved in view of Section 3 (1) (b) of the Repeal Act. Having heard learned Counsel for the parties and after going through the evidence adduced by the parties and judgments passed by the two Courts below in my considered view no case is made out to interfere into the judgment and decree passed by the Courts below. Both the Courts below have rightly held that the initial agreement was in respect of one plot of 50 x 30 ft. and not of plot size 60 x 30 ft. From the evidence on record it is clear that the plaintiff agreed to purchase one plot bearing No. 54 old No. 110 from the defendants. The sale-deed of the said plot was executed in her favour on 6-3-1976. It is also duly proved that the plot No. 55, which was to be sold to Smt. Agnis Joseph was subsequently agreed to be sold by the defendants to the plaintiff and the plaintiff made the final payment of the said plot on 13-1-1980. The sale-deed of the said plot was executed in her favour on 6-3-1976. It is also duly proved that the plot No. 55, which was to be sold to Smt. Agnis Joseph was subsequently agreed to be sold by the defendants to the plaintiff and the plaintiff made the final payment of the said plot on 13-1-1980. The evidence on record clearly establishes that it was in the knowledge of the plaintiff that the sale-deed of the plot No. 55 could not be executed in her favour in view of coming into force of Ceiling Act w.c.f. 9-9-1976. The conditional sanction was received by the defendants on 20-12-1983 (Exh. D-4). It has also been found to be proved by both the Courts below that the plaintiff was in the constant contact with the defendants in respect of the outcome of the sanction which was to be received from the Competent Authority. The Courts below on appreciation of the evidence of plaintiff herself stating therein that she was knowing from the year, 1983 itself about the receipt of conditional sanction have rightly treated the plaintiff's suit to be barred by limitation having being filed on 3-8-1987. It has also been found proved that in view of conditional sanction parties were not in a position to execute the sale-deed as the plaintiff was already holding one plot bearing No. 54 in the same colony. In view of this, plaintiff's contention that she could have filed the suit within 3 years from the date of receipt of reply (Exh. P-7) of the defendants refusing to execute the sale-deed cannot be accepted. The Courts below have rightly held that the suit filed by the plaintiff was barred by limitation having been filed after more than 3 years from the date of receipt of Exh. D-4 when the defendants expressed their inability to the plaintiff to execute the sale-deed in view of the conditional sanction (Exh. D-4). The contention of the plaintiff that during the pendency of this appeal the Ceiling Act has been repealed by the Repeal Act and in view of Section 4 of the Repeal Act, the proceedings have been abated and the condition imposed in the sanction order (Exh. D-4). The contention of the plaintiff that during the pendency of this appeal the Ceiling Act has been repealed by the Repeal Act and in view of Section 4 of the Repeal Act, the proceedings have been abated and the condition imposed in the sanction order (Exh. D-4) has come to an end and now there is no bar for the plaintiff to get the decree of specific performance of the contract and the defence about the impossibility of the performance of the contract is not available to the defendants cannot be accepted. Section 3(1) (b) of the Repeal Act saves the validity of any order granting exemption under Sub-section (1) of Section 20 or any action taken there under notwithstanding any judgment of any Court to the contrary. Thus, in my considered view, the repeal of Ceiling Act will not revive the plaintiff's right to get the sale-deed executed on the ground that the condition imposed in the sanction is not available in view of the Repeal Act. The repeal of the Ceiling Act will not help the plaintiff to claim specific performance of the contract. The plaintiffs reliance on the judgment passed by this Court in the case of Basantilal Jagannath Mahajan v. Rameshwar Prasad Nanoolal Mahajan (supra), is of no use in view of the fact that from the evidence which has been rightly appreciated by the two Courts below it has been duly proved that the plaintiff had notice of the sanction order (Exh. D-4) due to which the specific performance of the contract was impossible in view of the fact that the plaintiff had already been allotted one plot bearing No. 54 vide registered sale-deed. The judgment passed by the Supreme Court in the case of Govindbhai Gordhanbhai Patel and Ors. v. Gulam Abbas Mulla Allibhai and Ors. AIR 1977 SC 1019 , is entirely on different footing. In that case, a request was made by the parties to the District Deputy Collector seeking permission to sell and purchase of land. It was informed to them that their request to sell could not be granted as intending purchaser had not obtained the certificate from the Collector to the effect that he intends to take the profession of agriculture and is capable of cultivating land personally. It was informed to them that their request to sell could not be granted as intending purchaser had not obtained the certificate from the Collector to the effect that he intends to take the profession of agriculture and is capable of cultivating land personally. Thereafter on obtaining the requisite certificate the seller tried to repudiate the contract on the ground that it became impossible for performance on 8-12-1959 when the requisite certificate was not filed and the subsequent order of Collector was not legal. Noticing these facts the Supreme Court has held that the order dated 8-12-1958 by which the permission was refused did not put any fetter on the purchaser to apply to the Collector for requisite permission for sell and purchase of land after obtaining requisite certificate. The Supreme Court observed that initially the permission was not denied on merits but merely on account of a formal defect and in the circumstances the principles of res judicata will not debar the authorities from subsequent proceedings and passing appropriate orders on merits. In view of the aforesaid finding recorded by the two Courts below and in view of Section 3 (1) (b) of the Repeal Act in my considered view no case for grant of decree in favour of plaintiff and against the defendants for specific performance of contract is made out. No case for interference in the concurrent finding recorded by the two Courts below is made out. However, in my considered view, the Courts below ought to have passed a decree for return of money paid by the plaintiff to the defendants for purchase of Plot No. 55. Accordingly, the appeal is partly allowed only to the extent that the plaintiff shall be entitled for return of money paid to the defendants in respect of Plot No. 55 old No. 111 with interest at the rate of 6% per annum. The appeal is partly allowed and the plaintiff's suit is decreed but only to the extent indicated above. Parties to bear their own costs. 4. The contention of the learned Senior Counsel for the petitioner is that the question of limitation holding the petitioner's suit to be barred by limitation has wrongly been decided by this Court. The appeal is partly allowed and the plaintiff's suit is decreed but only to the extent indicated above. Parties to bear their own costs. 4. The contention of the learned Senior Counsel for the petitioner is that the question of limitation holding the petitioner's suit to be barred by limitation has wrongly been decided by this Court. According to him the suit was not barred by limitation since for the first time on 18-8-1986 the defendants/ respondents refused execution of the sale-deed in favour of the petitioner and the suit was filed on 3-8-1987 in the circumstances it was well within jurisdiction. He submits that this Court has not properly construed the provision contained in Article 54, which led to dismissal of the petitioner's second appeal. He submits that the question about correct application of Article 54 of the Limitation Act being a question of public importance the petitioner has made out a case under Order XLV Rule 2 of the CPC. In regard to the second question he submits that this Court has not correctly interpreted saving clause of Section 3 (1) (b) of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 and has ignored that on coming into force in the State of M.P. the Urban Land (Ceiling and Regulation) Repeal Act, 1999 the judgment and decree passed by the Courts below had become ineffective and in the circumstances, in view of the said saving clause the petitioner was entitled to get the decree in her favour. Thus, according to him, the interpretation of the Section 3 (1) (b) of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 requires consideration and decision by the Supreme Court and as such in exercise of powers under Order XLV the appropriate orders be passed. 5. Smt. Meena Chaphekar, learned Counsel appearing on behalf of the respondents on the other hand submitted reply of the MCC and raised preliminary objections by placing reliance on Section 109 of the CPC. She argued that in view of the provisions contained in Section 109 of the CPC and Article 133 (3) of the Constitution of India present petition filed by the petitioner is not maintainable. According to her, the order in question has been passed by Single Judge of this Court and, therefore, in view of bar contained in Article 133 (3) of the Constitution this MCC is not maintainable. According to her, the order in question has been passed by Single Judge of this Court and, therefore, in view of bar contained in Article 133 (3) of the Constitution this MCC is not maintainable. According to her the substantial questions of law which were framed in the second appeal have rightly been decided vide judgment dated 11-5-2009 passed by this Court. She argued that in the said judgment it has been correctly held that Section 3 (1) (b) of the Repeal Act saves the validity of any order granting exemption under Sub-section (1) of Section 20 or any action taken thereunder notwithstanding any judgment of any Court to the contrary. She submits that it was also correctly held by this Court that the repeal of the Ceiling Act will not revive the plaintiff's right to get the sale-deed executed on the ground that the ban imposed in the sanction is not available now in view of the Repeal Act. She also submits that the second question as extracted in Paragraph 2 above is purely a question of fact. She argued that this Court after appreciating the evidence led by the parties has rightly held that the plaintiff's suit was barred by limitation. This question is also according to her is not of any general importance which needs decision by the Supreme Court. She argued that against the concurrent finding of fact recorded by two Courts below and upheld by this Court, if the petitioner had any grievance it was open for her to have approached the Supreme Court by filing a Special Leave Petition. 6. In order to appreciate the controversy involved in this petition it would be appropriate to extract few provisions of law on which reliance has been placed by the learned Counsel for the parties. Section 109 of the CPC reads thus: 109. 6. In order to appreciate the controversy involved in this petition it would be appropriate to extract few provisions of law on which reliance has been placed by the learned Counsel for the parties. Section 109 of the CPC reads thus: 109. When appeal lie to the Supreme Court.- Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies: (i) that the case involves a substantial question of law of general importance; and (ii) that in the opinion of the High Court the said question needs to be decided by the Supreme Court. Order XLV of the CPC reads thus: 1. "Decree" defined.- In this Order, unless there is something repugnant in the subject or context, the expression "decree" shall include a final order. 2. Application to Court whose decree complained of.- (1) Whoever desires to appeal the Supreme Court shall apply by petition to the Court whose decree is complained of. (2) Every petition under Sub-rule (1) shall be heard as expeditiously as possible and endeavour shall be made to conclude the disposal of the petition within sixty days from the date on which the petition is presented to the Court under sub- rule (1). 3. Certificate as to value or fitness.- (1) Every petition shall state the grounds of appeal and pray for a certificate: (i) that the case involves a substantial question of law of general importance, and (ii) that in the opinion of the Court the said question needs to be decided by the Supreme Court. (2) Upon receipt of such petition, the Court shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted. 4. Consolidation of suits.- Omitted by the Code of Civil Procedure (Amendment) Act, 1973 (49 of 1973), Section 4. 5. Remission of dispute to Court of first instance.- Omitted by Section 4, ibid. 6. Effect of refusal of certificate.- Where such certificate is refused, the petition shall be dismissed. 7. 4. Consolidation of suits.- Omitted by the Code of Civil Procedure (Amendment) Act, 1973 (49 of 1973), Section 4. 5. Remission of dispute to Court of first instance.- Omitted by Section 4, ibid. 6. Effect of refusal of certificate.- Where such certificate is refused, the petition shall be dismissed. 7. Security and deposit required on grant of certificate.- (1) Where the certificate is granted, the applicant shall within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date;- (a) furnish security in cash or in Government securities for the costs of the respondent, and (b) deposit the amount required to defray the expense of translating, transcribing, indexing, printing and transmitting to the Supreme Court a correct copy of the hole record of the suit, except: (1) formal documents directed to be excluded by any rule of the Supreme Court in force for the time being; (2) papers which the parties agree to exclude; (3) accounts, or portions of accounts, which officer empowered by the Court for that purpose considers unnecessary, and which the parties have not specifically asked to be included; and (4) such other documents as the High Court may direct to be excluded: Provided that the Court at the time of granting the certificate may, after hearing any opposite party who appears, order on the ground of special hardship that some other form of security may be furnished: Provided further, that no adjournment shall be granted to an opposite party to contest the nature of such security. 8. Admission of appeal and procedure thereon.- Where such security has been furnished and deposit made to the satisfaction of the Court, the Court shall: (a) declare the appeal admitted, (b) give notice thereof to the respondent, (c) transmit to the Supreme Court under the seal of the Court a correct copy of the said record, except as aforesaid, and (d) give to either party one or more authenticated copies of any of the papers in the suit on his applying therefore and paying the reasonable expenses incurred in preparing them. 9. 9. Revocation of acceptance of security.- At any time before the admission of the appeal the Court may upon cause shown, revoke the acceptance of any such security, and make further directions thereon. 9-A. Power to dispense with notices in case of deceased parties.- Nothing in these rules requiring any notice to be served on or given to an opposite party or respondent shall be deemed to require any notice to be served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree is complained of or at any proceedings subsequent to the decree of that Court: Provided that notices under Sub-rule (2) of Rule 3 and under Rule 8 shall be given by affixing the same in some conspicuous place in the Court-house of the Judge of the district in which the suit was originally brought, and by publication in such newspapers as the Court may direct. 10. Power to order further security or payment.- Where at any time after the admission of an appeal but before the transmission of the copy of the record, except as aforesaid, to the Supreme Court such security appears inadequate, or further payment is required for the purpose of translating, transcribing, printing, indexing or transmitting the copy of the record, except as aforesaid, the Court may order the appellant to furnish, within a time to be fixed by the Court, other and sufficient security or to make, within like time, the required payment. 11. Effect of failure to comply with order.- Where the appellant fails to comply with such order, the proceedings shall be stayed, and the appeal shall not proceed without an order in this behalf of the Supreme Court, and in the meantime execution of the decree appealed from shall not be stayed. 12. Refund of balance deposit.- When the copy of the record, except as aforesaid, has been transmitted to the Supreme Court, the appellant may obtain a refund of the balance if any of the amount which he has deposited under Rule 7. 13. Powers of Court pending appeal.- (1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs. 13. Powers of Court pending appeal.- (1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs. (2) The Court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to the Court: (a) impound any movable property in dispute or any part thereof, or (b) allow the decree appealed from to be executed, taking such security from the respondents as the Court thinks fit for the due performance of any order which the Supreme Court may make on the appeal, or (c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the decree appealed from, or of any decree or order which the Supreme Court may make on the appeal, or (d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise. 14. Increase of security found inadequate.- (1) Where at any time during the pendency of the appeal the security furnished by either party appears inadequate, the Court may, on the application of the other party, require further security. (2) In default of such further security being furnished as required by the Court: (a) if the original security was furnished by the appellant, the Court may, on the application of the respondent, execute the decree, appealed from as if the appellant had furnished no such security. (b) if the original security was furnished by the respondent, the Court shall, so far as may be practicable, stay the further execution of the decree, and restore the parties to the position in which they respectively were when the security which appears inadequate was furnished, or give such direction respecting the subject-matter of the appeals as it thinks fit. 15. Procedure to enforce orders of the Supreme Court.- (1) Whoever desires to obtain execution of any decree or order of the Supreme Court shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to the Supreme Court was preferred. 15. Procedure to enforce orders of the Supreme Court.- (1) Whoever desires to obtain execution of any decree or order of the Supreme Court shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to the Supreme Court was preferred. (2) Such Court shall transmit the decree or order of the Supreme Court to the Court which passed the first decree appealed from, or to such other Court as the Supreme Court by such decree or order may direct and shall upon the application of either party give such directions as may be required for the execution of the same; and the Court to which the said decree or order is so transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of its original decrees. (4) Unless the Supreme Court otherwise directs, no decree or order of that Court shall be inoperative on the ground that no notice has been served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree was complained of or at any proceedings subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before the death took place. 16. Appeal from order relating to execution.-The orders made by the Court which executes the decree or order of the Supreme Court, relating to such execution, shall be appealable in the same manner and subject to the same rules as the orders of such Court relating to the execution of its own decrees. Article 133 of the Constitution of India reads thus: 133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters.- (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under Article 134-A,- (a) that the case involves a substantial question of law of general importance; and (b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court. (2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under Clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided. (3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court. 7. On a deep scrutiny of the aforesaid provisions, it is revealed that Section 109 of the CPC deals as to when appeal would lie to the Supreme Court. Section 109 is subject to the provisions in Chapter IV of Part V of the Constitution of India and such Rules as may from time to time be made by the Supreme Court regarding appeals from the Courts of India and subject to subsequent provisions of the CPC. In the circumstances, neither Section 109 nor Order XLV of the CPC can be read in isolation as has been suggested by learned Senior Counsel for the petitioner. His argument that in view of the Article 366 read with Article 372 (2) of the Constitution of India the existing law contained in Order XLV of the CPC would continue as Section 109 of the CPC was inserted subsequently cannot be accepted. By insertion of Section 109 in the CPC the powers of grant of certificate by the High Court for appeal to the Supreme Court are made subject to Chapter IV of Part V of the Constitution of India. In the circumstances, when the powers under Section 109 of the CPC are subject to the provisions contained in Chapter IV of Part V of the Constitution of India, then in view of the fact that the judgment against which certificate is sought being passed by the Single Judge, the relief claimed through this MCC for grant of certificate under Order XLV cannot be granted having regard to the bar contained in Article 133 (3) of the Constitution of India. 8. Even otherwise on merits I am of the, view that none of the questions framed by the petitioner as extracted above are substantial questions of law of general importance and the said questions in my opinion needs no decision by the Supreme Court. 9. 8. Even otherwise on merits I am of the, view that none of the questions framed by the petitioner as extracted above are substantial questions of law of general importance and the said questions in my opinion needs no decision by the Supreme Court. 9. In the case of The State Bank of India v. Shri N. Sundara Money (1976) 1 SCC 822 , it has been held by the Supreme Court that a certificate can be granted only if the Court is satisfied that the case involves a substantial question of law of general importance and that the question needs to be decided by the Supreme Court. The Supreme Court has observed that grant of such constitutional passport to the Supreme Court by the High Court is not a matter of easy insouciance but anxious advertence to the dual vital requirements built into Article 133 (1) by specific amendment. Failure here stultifies the scheme of the Article and floods the Supreme Court with cases of lesser magnitude with illegitimate entry. The existence of substantial question of law is sine qua non to certify fitness for hearing by the Apex Court. Nay more, the question, however important and substantial must be of such pervasive import and deep significance that in the High Court's judgment it imperatively needs to be settled at the national level by the highest bench. In my considered view, in the present case, the questions raised by the petitioner are not falling in the parameters of Order XLV of the CPC and the law laid by the Supreme Court. 10. Having regard to the aforesaid, I am of the view that no case is made out to accept the petitioner's prayer made through this MCC. 11. Accordingly, the MCC deserves to be and is hereby dismissed. No orders as to the costs.