Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 746 (KAR)

N. S. NAGARAJ v. V. K. MAMATHA

2013-07-01

JAWAD RAHIM

body2013
Order Plaintiff is in second appeal assailing the judgment in R.A.348/07 on the file of Additional Civil Judge (Senior Divn.), Mysore, whereby the judgment of the trial court in O.S.1741/05 decreeing the suit in favour of the appellant as prayed granting damages in a sum of Rs.25,000/-, is set aside. 2. Upon prior notice, the respondent-defendant has entered contest. When the appeal came up for hearing, Mr. Ganesh Kumar would raise a preliminary objection about maintainability of this appeal on the basis of restriction imposed on the right of appeal under Section 102, C.P.C. 3. In support of the grounds to non-suit the appellant, he would submit the suit of the plaintiff was for damages in a sum of Rs.25,000/-; the trial court had decreed the suit while the appellate court has annulled the decree in his favour. Thus the appellant could not have resorted to second appeal as the subject matter of the suit was to grant damages in a sum of Rs.25,000/- and against such judgment and decree, no second appeal is permissible. He referred to the provision of Section 102, C.P.C. which envisages ‘No second appeal shall life from any decree when the subject-matter of the original suit is for recovery of money not exceeding twenty-five-thousand rupees.’ 4. Thus he submits second appeal is barred and seeks citational support to his contention relying on the following decisions: I) KRISHAN LAL vs. M/s MEET FINANCE COMPANY rendered by the Delhi High Court in which the learned single Judge, referring to the facts pleaded in the plaint seeking damages in a sum of Rs.16,170/- and also prayer for mandatory injunction for restoration of vehicle, opined thus: ‘10. Petitioner/plaintiff thereafter filed a Regular Second Appeal but a learned Single Judge of this Court was pleased to dismiss the appeal as not maintainable on the ground that subject matter of suit was for a recovery of an amount not exceeding Rs.25,000/-. The order of learned Single Judge dated 2nd May, 2007 is reproduced herein below for ready reference: “Heard counsel for the parties. Since the original suit was filed before the trial court for recovery of Rs. 16,170/-, this case is clearly barred under Section 102 CPC, wherein it is mentioned that no second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees. Since the original suit was filed before the trial court for recovery of Rs. 16,170/-, this case is clearly barred under Section 102 CPC, wherein it is mentioned that no second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees. It was also pointed out that relief of mandatory injunction was given up subsequently. In view of this position, counsel for the appellant submits that he will seek remedy somewhere else.’ RSA No.172/2006 is accordingly dismissed.” The second decision is: II) VICE CHANCELLOR & OTHERS vs. JAISY K. JOSEPH rendered by the Kerala High Court at Ernakulam in which the learned single Judge, in a case where the plaintiff had sought for a judgment and decree in a sum of Rs.15,000/- based on non-evaluation of mathematics paper, opined thus: “9. There is yet another reason for not interfering with the judgments of the courts below. A Second Appeal is not maintainable in the present case in view of Section 102 of the Code of Civil Procedure, which reads as follows: C.R.P. No. 368 of 2004 & quot; No the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees & quot; Section 102 was substituted by the Code of Civil Procedure(Amendment) Act 1999(Act 46 of 1999) wherein the amendment sought to be introduced was as follows: & quot; 102. No second appeal in certain cases: No second appeal shall lie from any decree, when the amount or value of the subject matter of the original suit does not exceed twenty-five thousand rupees. & quot; Subsequently, by the Code of Civil Procedure(Amendment) Act 2002 (Act 22 of 2002) which came into force on 01.07.2002, the amendment proposed to be effected by Act 46 of 1999 was substituted with the present Section 102. As per the amendment of Act 1999, irrespective of the nature of the suit, no Second Appeal would lie against the decision in a suit where the value of the subject matter is below Rs.25,000/-. By the amendment introduced by Act 22 of 2002, the bar under Section 102 is limited to suits where C.R.P.No.368 of 2004 the subject matter is for recovery of money not exceeding twenty five thousand rupees. By the amendment introduced by Act 22 of 2002, the bar under Section 102 is limited to suits where C.R.P.No.368 of 2004 the subject matter is for recovery of money not exceeding twenty five thousand rupees. A Second Appeal is maintainable only on a substantial question of law as provided under Section 100 of the Code of Civil Procedure. A Revision under section 115 of the Code of Civil Procedure lies where the subordinate court appears to have exercised jurisdiction not vested in it by law; or to have failed to exercise jurisdiction so vested; or to have acted in the exercise of its jurisdiction illegally or with material irregularity. The question is whether the High Court would be entitled to entertain a Civil Revision Petition, in a case where a second Appeal is barred under section 102 of the Code of Civil Procedure, on any ground which is less rigorous than that provided in Section 100 of the Code of Civil Procedure. Even in matters where the valuation exceed Rs.25,000/-, a Second Appeal could be entertained only on a substantial question of law. When section 102 provides that no Second Appeal would lie in respect of a suit where the subject matter is for recovery of money not exceeding Rs.25,000/-, it cannot be assumed the Parliament thought it fit to take such category of cases out of the rigour of Section 100 and to provide a less rigorous remedy in such cases. If so, it is to be taken that a revision under section 115 cannot be entertained on a ground which is less rigorous C.R.P.No.368 of 2004 than that provided in Section 100 of the Code of Civil Procedure. The purpose of substituting Section 102 C.P.C. was to restrict entertaining Second Appeals in cases where the subject matter of the suit is for recovery of money not exceeding Rs.25,000/-. The purpose sought to be achieved cannot be defeated by entertaining a revision under section 115 of the Code of Civil Procedure on a less rigorous test than that provided in Section 100 C.P.C. I am of the view that in cases where no Second Appeal lies in view of Section 102, a Revision can be entertained only if the court is satisfied that the decision of the subordinate court is vitiated by error of jurisdiction and also that a substantial question of law is involved in the case. For the aforesaid reasons, the Civil Revision Petition is dismissed. No order as to costs.’ 5. On the basis of case laws, he would submit the decisions cited supra lay down the law that by amendment to the Code of Civil Procedure, that is, Act No.22 of 2002 which came into effect from 1.7.2002, the amendment has come into effect retrospectively to the date of filing of the suit and on that basis, no second appeal would lie against the decision of the suit where the value of the subject matter is below Rs.25,000/. By the amendment introduced, he contends the bar under Section 102, C.P.C. is limited to suits like CRP.368/04 where the subject matter is for recovery of money not exceeding twenty-five thousand rupees, and second appeal is maintainable only on the substantial questions of law as provided under Section 100, C.P.C. According to him, revision under Section 115, C.P.C. lies when the sub-ordinate court appears to have exercised jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. On this basis, it is urged second appeal was not maintainable but C.R.P. was maintainable. 6. In negation of these contentions, Sri Murali, learned counsel for the appellant would contend, the provision of Section 102, C.P.C. does not bar second appeal as the suit filed by the appellant was to declare that the utterances of the defendant were slanderous and had tarnished his image for which he sought damages quantified at Rs.25,000/. He would submit, the provision of Section 102, C.P.C. though amended, it brings a change bringing within its mischief the judgment and decree passed by other courts of competent jurisdiction and not of the Court of Small Causes which was the position of law earlier to the amendment. He would submit, the provision of Section 102, C.P.C. though amended, it brings a change bringing within its mischief the judgment and decree passed by other courts of competent jurisdiction and not of the Court of Small Causes which was the position of law earlier to the amendment. He would rely on the decision of the Kerala High Court in the case of KODERI VALAPPIL NABEESSA & ANOTHER .vs. ACHERIYATHU ABDUL MAJEED reported in (AIR 2006 KERALA 381) wherein the learned single Judge, considering a case where the plaintiff had filed the suit claiming the schedule property was in his possession and that the mortgagee had constructed a shop thereon for which he sustained loss due the illegal acts of the adversary, the learned single Judge opined that the original suit was one for injunction coupled with claim for recovery of articles as well as recouping the loss suffered in another suit. Thus it was held Section 102, C.P.C. was not applicable to a case where such relief was sought. 7. Keeping in mind the contentious issues raised by both sides, it could be said that the interpretation of Section 102, C.P.C. is the only exercise that needs to be done to decide maintainability of the appeal for which purpose the provision as it stood before repeal as also the amended provision needs reference. The repealed provision reads thus: ‘No appeal would lie from any decree when the amount or value of the subject matter of the original suit does not exceed twenty-five thousand rupees.’ The amended provision reads thus: ‘No second appeal shall lie from any decree when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.’ 8. From the language of the repealed provision it could be seen, no second appeal shall lie from any decree when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees. Earlier no appeal would lie from any decree when the amount or value of the subject matter of the original suit does not exceed twenty-five thousand rupees. Thus the words ‘when the amount or value of the subject matter’ as it appeared in the repealed provision is conspicuous by its absence in the amended provision. If we take note of this change in law, the Legislature’s intention becomes clear. Thus the words ‘when the amount or value of the subject matter’ as it appeared in the repealed provision is conspicuous by its absence in the amended provision. If we take note of this change in law, the Legislature’s intention becomes clear. Earlier the amount or value of the subject matter of the original suit was the decisive factor whereas the amended provision contains the words ‘when the subject matter of the suit is for recovery of money…’ Thus the reasonable conclusion would be Section 102, C.P.C. bars second appeal where the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees. It does not apply where adjudication is on issues touching the rights of the parties. 9. Thus the reasonable conclusion would be, Section 102 bars second appeal where the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees. In a case of this nature, the relief sought by the plaintiff for damages entirely depends on the decision of the court where the utterances were slanderous affecting the image and reputation of the plaintiff. If the decision is in the affirmative, he is entitled to damages which amount would be quantified. If it is in the negative, it does not arise. 10. If the plaintiff had not sought for damages his suit would still remain for adjudication as to whether the utterances were slanderous or not. Any decision in such a case would be amenable to second appeal under Section 100, C.P.C. This is a countercheck to the proposition that if more than one issue arises for consideration, whether or not it touches the right of the party from whom the claim germinates, then such judgment and decree is amenable to appeal under section 100 despite restriction under Section 102, C.P.C. 11. The decisions of the Delhi High Court and Kerala High Court referred by the learned counsel for the respondent though give a different proposition of law, it is difficult to accept it. I therefore concur with the opinion expressed in the second decision of the Kerala High court (2006 KERALA 381) which is in line with the opinion expressed by me in this order. Thus I hold second appeal against the judgment and decree in the instant case is maintainable and the contentions to the contrary are overruled. Call in the week after next.