Research › Search › Judgment

Rajasthan High Court · body

2015 DIGILAW 1476 (RAJ)

Raja Ram Chela v. LRs. of Smt. Vimla Devi

2015-08-07

P.K.LOHRA

body2015
JUDGMENT 1. - Appellant-defendant having lost the legal battle before both the Courts below has laid this second appeal under Section 100 CPC. 2. The facts, necessary and germane to the matter, are that respondent-plaintiffs instituted a civil suit before Additional Civil Judge (Senior Division) No.2, Jodhpur (for short, 'learned trial Court') for specific performance of contract against the appellant. In the plaint, it was, interalia, averred that appellant entered into agreement to sale on 20.08.1976 for plots No. 36, 67, 70 and other three plots situated in Damodar Colony, outside Nagori Gate, Jodhpur for a consideration of Rs. 48,000/- mentioning the dimensions and neighbourhood of the plots in the plaint. The respondent-plaintiffs set out a case that all of them collectively paid the entire consideration amount to the appellant who after receiving the amount agreed to get No Objection Certificate from the concerned department for facilitating execution of registered sale-deeds. For showing cause of action, it is averred in the plaint that appellant has not obtained requisite No Objection Certificate and further no endeavour was made by him to execute the sale-deeds. In the suit, prayer was made for specific performance of contract and in the alternative, it was also prayed that appellant be directed to refund the amount of Rs. 48,000/- with interest @ 18% per annum. 3. The appellant and the performa respondent did not appear despite receipt of summons and therefore, learned trial court proceeded ex-parte against them. One of the defendants, Narendra Singh, passed away during pendency of the suit, therefore, his name was deleted. In that background, while considering the written statement of Narendra Singh, learned trial Court settled five issues for determination. On behalf of respondents-plaintiffs, three witnesses appeared and documents were also submitted. 4. Learned trial Court, after examining the evidence available on record, decided all the issues in favour of respondents and against the appellant. Finally, learned trial Court passed the decree for specific performance of contract against the appellant and the performa respondent. 5. Feeling aggrieved by the judgment and decree of the learned trial Court, appellant laid first appeal before the District and Sessions Judge, Jodhpur and the same was subsequently transferred to Additional District and Sessions Judge (Fast Track) No.4, Jodhpur (for short, 'learned lower appellate Court'). 5. Feeling aggrieved by the judgment and decree of the learned trial Court, appellant laid first appeal before the District and Sessions Judge, Jodhpur and the same was subsequently transferred to Additional District and Sessions Judge (Fast Track) No.4, Jodhpur (for short, 'learned lower appellate Court'). The learned lower appellate Court made sincere endeavour to appreciate all the factual aspects and analysed the evidence which was available on record threadbare. 6. After thoroughly examining the materials available on record and exercising its powers under Order 41, Rule 31 CPC, learned lower appellate Court, by its elaborate judgment, dismissed the appeal of the appellant. 7. During pendency of this appeal, on a request being made by learned counsel for the appellant, the appeal was dismissed as not pressed against the legal representatives of first respondent as well as respondent Nos. 2 & 4. The Court passed following order on 17.10.2011:- "Learned counsel for the appellant states that appellant and respondent having compromised the matter, appellant not interested in pursuing the appeal. Counsel for the appellant states that in relation to respondent No.1 (LRs), 2 & 4, the appellant does not press the appeal and the appeal be dismissed against the respondents. Decree is accorded in a suit and for executing registered document and selling the piece of land and also for injunction. Looking to the nature of the suit and the matter is said to have been compromised against some of the respondents mentioned, only appropriate order is to get verify the same and put in on record. The compromise be verified before the Dy. Registrar (Judicial) and keeping on record, the matter be posted for hearing." 8. I have heard learned counsel for the parties, perused the impugned judgments of both the Courts below and scanned the entire record of the case. 9. Upon perusal of the impugned judgments there remains no quarrel that both the Courts below have recorded a concurrent findings of fact against the appellant. It is an admitted fact that appellant did not appear in the witness-box before the learned trial Court, rather ex-parte proceedings were taken against him. In these circumstances, as a matter of fact, no defence was put-forth by the appellant before the learned trial Court. It is an admitted fact that appellant did not appear in the witness-box before the learned trial Court, rather ex-parte proceedings were taken against him. In these circumstances, as a matter of fact, no defence was put-forth by the appellant before the learned trial Court. Even one of the defendants, who had tendered his written statement, passed away during trial and therefore, in that background, learned trial Court has relied upon the evidence tendered by the respondents. 10. Taking into account the fact that evidence tendered by the respondents was in-impeachable, learned trial Court decreed the suit. Learned lower appellate Court thereafter thoroughly examined the matter and fully concurred with the findings and conclusions of the learned trial Court. One of the redeeming feature of this case is that the appellant, who had entered into agreement to sale with the respondents, has not pressed his appeal against legal representatives of first respondent as well as respondent Nos. 2 & 4 who were party to the agreement to sale, therefore, in that background, vis-a-vis these respondents, the decree passed by the learned trial Court and affirmed by the learned first appellate Court has attained finality. 11. Therefore, in totality, continuing proceedings of this appeal against the sole respondent, respondent No. 3, is under serious cloud. The main hurdle of the appellant is that he is faced with a situation wherein he is pitted against concurrent finding of fact by both the Courts below. 12. It is trite that, while exercising second appellate jurisdiction, this Court is not obliged to re-appreciate the evidence for arriving at a different conclusion. The first appellate Court, being the last Court of fact, if has taken pains to thrash out the matter in its entirety and there is no infirmity or perversity in its conclusions on finding of fact, it is not worthwhile to exercise jurisdiction under Section 100 CPC to upset the said finding. It is also pertinent to note that second appeal is not a routine proceeding and jurisdiction under Section 100 CPC is to be exercised with great care and circumspection. The existence of substantial question of law is sine qua non for maintainability of a second appeal. 13. In totality, I am unable to lay my hands on any substantial questions of law involved in this appeal. The existence of substantial question of law is sine qua non for maintainability of a second appeal. 13. In totality, I am unable to lay my hands on any substantial questions of law involved in this appeal. The substantial question of law proposed in the memo of appeal are merely technical and not of substance so as to be categorized as substantial questions of law. 14. Therefore, viewed from any angle, I am not persuaded to interfere with the concurrent finding of fact sans substantial question of law. Resultantly, the second appeal fails and the same is hereby dismissed.Appeal Dismissed. *******