Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 1054 (ALL)

Banshi Lal v. Radhey Shyam

2013-04-08

SUDHIR AGARWAL

body2013
Sudhir Agarwal, J.— 1. Heard Sri V.S.Singh, learned counsel for the appellant and Sri R.N.Singh, learned counsel for the respondents. 2. This second appeal was presented through memo of appeal dated Nil without specifying any substantial question of law, which according to appellant is/are involved in this appeal, which is requirement under Section 100(3) of Code of Civil Procedure, 1908 (hereinafter referred to as the "Code"), as amended by Act 104 of 1976, Section 37, w.e.f. 1st February, 1977. Besides, the appeal was admitted on 1st March, 1978 but without formulating any substantial question of law, which is the requirement under Section 100(4) of Act, 1908. 3. Whether such a memo of appeal having not been presented in accordance with mandatory requirement of Section 100(3) of Act, 1908 and there is no amendment sought in memo of appeal, can be said to be maintainable in view of requirement of Section 100 of Act, 1908. 4. Under Section 100 of Code, a second appeal can be entertained by this Court only if it involves substantial question of law. In other words it does not confer any jurisdiction on this Court to interfere with pure questions of fact, which have been considered and adjudicated by courts below after appreciation of evidence recording well considered findings. If there is a finding of fact, based on proper appreciation of evidence, and, material on record, and no perversity, illegality or irregularity in those findings are found, the second appeal is not at all entertainable by this Court under Section 100 of the Code. Even mere illegality or irregularity in findings would not permit interference. They require something more. 5. There are two situations in which, ordinarily, interference with findings of fact is permissible, namely, (a) when material or relevant evidence is not considered, which if considered, would have led to opposite conclusion, and (b) where a finding has been arrived at by court below by placing reliance on inadmissible evidence, which if would have been omitted, an opposite conclusion would have been possible. I derive these principles from some of the authorities of Apex Court and, briefly, it would be appropriate to refer the same. 6. In Dilbagrai Punjabi Vs. I derive these principles from some of the authorities of Apex Court and, briefly, it would be appropriate to refer the same. 6. In Dilbagrai Punjabi Vs. Sharad Chandra, AIR 1988 SC 1858 , the Court affirmed the observations of High Court that First Appellate Court is under a duty to examine entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue, and the error which arises is of magnitude that it gives birth to a substantial question of law, the High Court would be entitled to set aside the finding. 7. In Jagdish Singh Vs. Nathu Singh, AIR 1992 SC 1604 , it was said, where finding by court of facts is vitiated by non consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper finding. 8. In Sri Chand Gupta Vs. Gulzar Singh, AIR 1992 SC 123 the Court upheld interference by High Court in second appeal where the Lower Appellate Court relied an admission of third party treating it as binding on the defendant though it was inadmissible against the said defendant. 9. In Sundra Naicka Vadiyar Vs. Ramaswami Ayyar, AIR 1994 SC 532 the Court said where certain vital documents for deciding the question of possession were ignored, such as compromise, an order of revenue Court relying on oral evidence was unjustified. 10. In Ishwar Dass Jain (Dead) through Lrs. Vs. Sohan Lal (Dead) through Lrs., 2000(1) SCC 434 the Court in paras 11 and 13 of the judgment clearly mentioned two situations in which inference with findings of fact is permissible. It is said: "11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. . . . ." "13. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. . . ." 11. In Govindaraju Vs. Mariamman, 2005(2) SCC 500 the Court said that existence of substantial question of law is the sine qua non for exercise of jurisdiction under Section 100 of the Code. . . ." 11. In Govindaraju Vs. Mariamman, 2005(2) SCC 500 the Court said that existence of substantial question of law is the sine qua non for exercise of jurisdiction under Section 100 of the Code. If a second appeal is entertained under Section 100 without framing substantial questions of law then it would be illegal and would amount to failure or abdication of duty cast on the Court. The Court relied on its earlier decisions in Kshitish Chandra Purkait Vs. Santosh Kumar Purkait & Ors., 1997(5) SCC 438 ; Panchugopal Barua Vs. Umesh Chandra Goswami 1997(4) SCC 413 ; and, Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar 1999(3) SCC 722 . 12. Section 100 of the Code, first of all, places an obligation upon appellant to precisely state in the memorandum of appeal a substantial question of law involved therein which he proposes to urge before the Court. After hearing him this Court has to satisfy itself that a substantial question of law is involved in the case and it shall formulate that question. This is the next stage. This Court after hearing appellant may come to the conclusion that the question stated in memorandum of appeal itself constitutes a substantial question of law but then it has to be formulated by Court on its own. It will become a substantial question of law only when the Court has satisfied itself and put its seal by formulating it. The mere substantial question of law is not sufficient but it must be one such question which is involved in the case. An abstract question of law may be substantial but unless it is one which is involved in the case concerned, it will not satisfy the requirement of Section 100(4) of the Code. 13. In Santosh Hazari Vs. Purushottam Tiwari, 2001(3) SCC 179 the Court considered what the phrase "substantial question of law" means. It says that the phrase 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 substances or consequence, or academic merely. 14. A Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. 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 substances or consequence, or academic merely. 14. A Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, AIR 1951 Madras 969 considered this term and said, "when a question of law is fairly arguable, where there is room for difference of opinion or where the Court thought it necessary to deal with that question at some length and discuss an alternative view, then the question would be a substantial question of law. On the other hand, if the question was practically covered by decision of highest Court or if general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of case, it could not be a substantial question of law." 15. The above observations were affirmed and concurred by a Constitution Bench in Sir Chunilal Mehta and Sons Ltd. Vs. The Century Spinning and Manufacturing Company Ltd. AIR 1962 SC 1314 . Referring to above authorities, the Court in Santosh Hazari (supra) said: "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, in so far 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. 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." 16. In my view, the appeal as presented, is not maintainable. Even otherwise, having heard learned counsel for the appellant, I do not find any substantial question of law is involved in this appeal. 17. The appeal is accordingly dismissed. _____________