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2017 DIGILAW 214 (ALL)

Jagat Narayan Gupta v. K. C. Ashthana

2017-01-16

P.K.S.BAGHEL

body2017
JUDGMENT Pradeep Kumar Singh Baghel, J. -- This is defendant's appeal under section 100,C.P.C. 2. The plaintiff was a practising lawyer in civil courts, Jalaun. He instituted a civil suit for declaration and damages. His case was that the defendants had issued a notification dated 5.11.2011 notifying date for election of office bearers of the bar. It is stated that a list of members was issued by the elder committee wherein name of the plaintiff was not shown, therefore, he moved an application before the appropriate authority- the third defendant to correct the electoral roll. It is averred in the plaint that the third defendant assured him that the mistake would be rectified. Alongwith the plaintiff, several other lawyers whose names were not included in the electoral roll, had also similarly approached the elder committee for rectifying the mistake. The elder committee has rectified the electoral roll in respect of other advocates except the plaintiff. 3. The trial court decreed the suit partly and awarded compensation of Rs. 5000/- against all the defendants. Aggrieved by the said order, the defendants preferred regular appeal before the District Judge which has also been dismissed. 4. I have heard learned counsel for the appellant and perused the record. 5. Learned counsel for the appellant submits that there was no positive evidence to indicate that plaintiff was entitled for damages and the trial court was not justified in granting damages to the plaintiff. He further submits that if damages could have been awarded, it ought to have been awarded against the bar association and not against members of the elder committee. 6. The plaintiff has filed several documentary evidence and he himself got examined. However, the defendants-member of the elder committee did not cross examine him. In his examination, the plaintiff has given detailed facts regarding omission of his name in the electoral roll. Defendant no. 3 was examined but he did not appear for cross examination. The view of the courts below that his evidence cannot be considered, is a correct view. 7. From the record, I am satisfied that the defendants did not rebut the evidence filed by the plaintiff and there was no justification as to why plaintiff's name was not included in the electoral roll. 8. The Supreme Court in State Bank of India and others Vs. S.N. Goyal, ( AIR 2008 SC 2594 ), in paragraph no. 7. From the record, I am satisfied that the defendants did not rebut the evidence filed by the plaintiff and there was no justification as to why plaintiff's name was not included in the electoral roll. 8. The Supreme Court in State Bank of India and others Vs. S.N. Goyal, ( AIR 2008 SC 2594 ), in paragraph no. 9 of the judgment, has considered as to what is a substantial question of law Relevant extract of the judgment is as under : "9.1) Second appeals would lie in cases which involve substantial questions of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this court (or by the concerned High Court so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the concerned High Court), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the concerned High Court) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this court (or the concerned High Court) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two view points, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a strait-jacket definition as to when a substantial question of law arises in a case..." 9. I find that no substantial question of law arises in this appeal. 10. The appeal lacks merit and is accordingly dismissed.