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2013 DIGILAW 786 (MP)

Jagdish Chandra v. Ramsahay

2013-07-10

S.C.Sharma

body2013
ORDER 1. The appellant before this Court has filed this present second appeal arising out the judgment and decree dated 9.2.12 passed in Civil Regular Appeal No.1-A/09 by the learned Additional District Judge, Khachrod District Ujjain. The 1st appellate court has affirmed the findings arrived at by the trial Court in Civil Suit No.11-A/06 by the learned Civil Judge Class-I dated 29.11.2008. 2. The facts of the case reveal that the plaintiff namely Jagdish Chandra and Mohan Lal, who were the owners of the house situated at Vadipura, Ajadpura, Birlagram, Nagda filed a suit for specific performance of contract. The facts further reveal that the suit property was sold by a registered sale deed dated 18.1.94 in favour of Ramsahay. It was stated in the plaint that on the same day i.e. 18.1.94 an agreement of sale was also executed between the parties, wherein it was agreed upon that the same house in question, after 9 years will be sold back to Jagdish Chandra and Mohan Lal (plaintiffs). The civil suit was preferred on the strength of agreement of sale dated 18.1.94. It is pertinent to note that the suit premises was sold later on by Ramsahay on 9.5.2000 by a registered sale deed in favour of one Subhash Chandra. The trial Court has framed various issues and the issue No.1 is in respect of sale deed dated 18.1.94 and it has been held that the house in question was sold by a registered sale deed dated 18.1.94 in favour Ramsahay (defendant No.1). In respect of the subsequent agreement, which is also dated 18.1.94 (agreement of sale), issues were framed and the trial Court has arrived at a conclusion, based upon the evidence on record that the document dated 18.1.94 is a forged and fabricated document. 3. It has been vehemently argued by learned counsel appearing for the appellants that the house was sold in favour of Ramsahay and Ramsahay has stated before the trial Court that as per the subsequent agreement dated 18.1.94 executed between the parties, there was a condition to execute the sale deed in favour of the plaintiffs namely Jagdish Chandra and Mohan Lal. 4. 4. On the other hand, learned counsel appearing for the respondents has drawn the attention of this Court towards the so called statement made by Ramsahay and his contention is that the property was sold to one Subhash Chandra on 9.5.2000 and thereafter so called statement has been made on 14.12.2001. Not only this, the trial Court after taking into account the statement of other witnesses and after taking into account the so called agreement has arrived at a conclusion that the agreement on the basis of which, the suit for specific performance of contract was filed itself is a forged and fabricated document and based upon the findings of fact, the suit has been dismissed. The findings of fact arrived at by the trial Court has been affirmed by the first appellate Court. 5. This Court has carefully scanned the entire evidence on record as well as the judgment passed by the trial Court and by the first appellate Court. This Court is of the considered opinion that the findings arrived at by the trial Court as well first appellate Court, are certainly the findings of fact, do not warrant any interference by this Court specially in light of the judgment delivered by the Supreme Court in the case of Gurudev Kumar and Others v. Kaki and Others, reported in (2007) 1 SCC 546 . 6. The apex Court in the case of Gurudev Kumar (supra) in paragraphs 45, 49, 51, 70 and 72 has held as under :- 45. The Amendment Act of 1976 has introduced drastic changes in the scope and ambit of section 100 CPC. A second appeal under section 100 CPC is now confined to cases where a question of law is involved and such question must be a substantial one. Section 100, as amended, reads as under: “100. Second appeal. (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.” 49. A mere look at the said provision shows that the High Court can exercise its jurisdiction under section 100 CPC only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the learned Single Judge. It is held by a catena of judgments by this Court, some of them being, Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438 and Sheel Chand v. Prakash Chand (1998) 6 SCC 683 that the judgment rendered by the High Court under section 100 C.P.C. without following the aforesaid procedure cannot be sustained. On this short ground alone, this appeal is required to be allowed. 51. Again in Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. (2001) 3 SCC 179 , another three-Judge Bench of this Court correctly delineated the scope of section 100 CPC. The Court observed that an obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the Court. In the said judgment, it was further mentioned that the High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. In the said judgment, it was further mentioned that the High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. According to the Court 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 substance or consequence, or academic merely. However, it is clear thatthe legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as section 109 of the Code and Article 133(1) (a) of the Constitution. 70. Now, after 1976 Amendment, the scope of section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under section 100 CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the section is that the appeal shall be heard only on that question. 72. When section 100 CPC is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law.” 7. 72. When section 100 CPC is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law.” 7. Resultantly, this Court is of the considered opinion that as the judgment of the trial Court as well as the first appellate Court are based upon the findings of fact and in the present second appeal no substantial question of law arises for adjudication by this Court. Hence, no case for interference in the matter is made out. The present second appeal is dismissed summarily.