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2015 DIGILAW 206 (ALL)

Lok Nath Singh v. Sanjai Kharwar

2015-02-02

SUDHIR AGARWAL

body2015
JUDGMENT Sudhir Agarwal,J. 1. Deficiency of Court fee of Rs.8/- has been made good today itself. Delay in filing court fee is hereby condoned. Let the appeal be registered with regular number and the old number shall also continued to be shown in bracket for finding out details of case, whenever required by parties with reference to either of the two numbers. 2. As requested by learned counsel for the appellant, I proceed to hear the appeal under Order 41, Rule 11 C.P.C. today itself. 3. Heard Sri R.N.Pandey, learned counsel for the appellant. Sri M.A.Qadeer, Senior Advocate, is present for the respondent. 4. This is defendant's second appeal under Section 100 C.P.C. The plaintiff Sanjai Kharwar instituted Original Suit No.458 of 2002 for specific performance of contract for enforcing agreement dated 9.12.1999. The suit was contested by defendant by filing written statement. Thereafter Trial Court formulated 8 issues and issues no.1, 2, 5 and 7, substantial for adjudication of the dispute in the aforesaid suit, read as under : ^^1- D;k izfroknh }kjk oknxzLr lEifRr dks oknh dks 50]000@& : i;k cspus ds fy, 30]000@& : i;k vfxze ysdj ds iz'uxr ,djkjukek oknh ds i{k esa fnukad 9-12-99 dks fu"ikfnr fd;k x;k gS] tSlk fd okni= esa dgk x;k gS\ 2- D;k oknh iz'uxr ,djkjukek ds vuqlkj vius nkf;Ro dk fuoZgu djus ds fy, lnSo rRij jgk gS vkSj vkt Hkh gS\ 5- D;k iz'uxr ,djkjukek dtZ dh lqj{kk ds lEcU/k esa izfroknh }kjk fu"ikfnr fd;k x;k gS] tSlk fd izfrokni= esa dgk x;k gS\ 7- D;k nkok /kkjk 16 fof'k"V vuqrks"k vf/kfu;e ls ckf/kr gS\** English Translation by the Court "1. Whether the agreement in question to sell the suit property has on 09.12.1999 been made in favour of the plaintiff by the defendant after accepting Rs. 30,000/- as advance out of the total consideration of Rs. 50,000/- as stated in the plaint? 2. Whether the plaintiff has always been and is still ready and willing to discharge his obligation as per the agreement in question? 5. Whether the agreement in question has been made by the defendant for security of loan, as contended in the written statement? 7. Whether the claim is barred by Section 16 of The Specific Relief Act?" 5. Issues no.1 and 2 were considered along with issue no.3 and 4 and returned in favour of plaintiff. 5. Whether the agreement in question has been made by the defendant for security of loan, as contended in the written statement? 7. Whether the claim is barred by Section 16 of The Specific Relief Act?" 5. Issues no.1 and 2 were considered along with issue no.3 and 4 and returned in favour of plaintiff. Issues no.5 and 7 were also answered against defendant. The Trial Court, therefore, decreed the suit vide judgment and decree dated 27.2.2007 passed by Civil Judge (Senior Division) Ballia whereagainst defendant-appellant preferred Civil Appeal No.06 of 2007. The Lower Appellate Court, having concurred with the finding of Trial Court, has dismissed the appeal vide judgment and decree dated 6.3.2010. 6. Learned counsel for the appellant contended that Court below has not considered that instead of granting relief of specific performance of execution of sale deed, plaintiff should have been awarded compensation by virtue of Section 20 of Specific Relief Act. It is said that this aspect has not been considered. However, from the judgment of lower Appellate Court it is evident that it has considered the question under Section 20 and answered against defendant-appellant. 7. Learned counsel for the appellant further submitted that both the Courts below have not examined evidence properly and the view taken by Courts below is not correct. 8. So far as contention that evidence has not been examined, despite repeated query, learned counsel for the appellant could not point out as to which evidence has been misread or relevant evidence has been omitted or impermissible evidence has been taken into account. Except of oral argument he could not point out anything from record. 9. Similarly the contention that view taken by Courts below is not correct by itself will not give rise to even a question of law what to say of a substantial question of law. This Court will not sit as if it is considering a regular first appeal so as to examine the entire matter on facts and law both. The scope of appeal under Section 100 C.P.C. is very limited and this Court shall enter upon the matter only when there has arisen a substantial question of law and not otherwise. What is "substantial question of law" is no more res integra, having been settled by Apex Court in Santosh Hazari Vs. Purushottam Tiwari, 2001(3) SCC 179 . The scope of appeal under Section 100 C.P.C. is very limited and this Court shall enter upon the matter only when there has arisen a substantial question of law and not otherwise. What is "substantial question of law" is no more res integra, having been settled by Apex Court in Santosh Hazari Vs. Purushottam Tiwari, 2001(3) SCC 179 . The decision in Santosh Hazari (supra) has been followed in Thiagarajan and others Vs. Sri Venugopalswamay B. Koll and others, AIR 2004 SC 1913 and Govindaraju Vs. Mariamman, 2005(2) SCC 500 . This aspect has also been considered recently by Apex Court in Vijay Kumar Talwar Vs. Commissioner of Income Tax, New Delhi (2011) 1 SCC 763 and Union of India Vs. Ibrahim Uddin & Anr. (2012) 8 SCC 148 . The above authorities have also been followed by this Court recently in State of U.P. & Ors. Vs. Shanti Devi & Ors., 2013 (4) ALJ 383 . 10. In the case in hand, both the Courts below have considered the issues and recorded concurrent findings of fact. Learned counsel for the appellant could not point out any manifest error or illegality in the judgments impugned in this second appeal which may give rise to any substantial question of law warranting adjudication by this court. Since no substantial question of law has been shown to have arisen in this matter, this appeal deserves to be dismissed at this stage under Order 41 Rule 11 C.P.C. 11. Dismissed accordingly.