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2024 DIGILAW 402 (CHH)

Surendra Kumar Arora S/o Shree Jeevandamal Arora v. Prabandh Sanchalak

2024-05-08

ARVIND KUMAR VERMA

body2024
JUDGMENT : 1. The instant second appeal has been preferred by the appellant/plaintiff against the judgment and decree dated 25.06.2014 passed by the 3rd Additional District Judge, Raipur, in Civil Appeal No.74-A/2011 which has been dismissed and the judgment and decree of the learned trial Court in Civil Suit No.388-A/2006 dated 30.04.2010 has been confirmed. 2. Brief facts of this case is that the plaintiff has instituted a civil suit for declaration and permanent injunction in respect of the disputed land situated at Rawabhata, Raipur bearing plot No.6 and plot No.5 admeasuring area 70,000 sq. feet (1.61 acres) and 60,000 sq. feet (1.39 acres). The relief of declaration and permanent injunction was sought to the effect that the order dated 12.04.1985 passed by defendant No.1 and order dated 13.12.1985 passed by defendant No.2 regarding cancellation of lease deed dated 17.12.1981 be declared null and void and the defendants be restrained to alienate the disputed land or execute lease deed in favour of any third party and also restrained to interfere with possession of the plaintiff over the suit land. It is undisputed fact that the State Government granted lease of disputed land to the plaintiff under small scale industry scheme for establishing the industries in name & style of Raipur Plastic and Trimurti Industries. The lease deed was executed by and between the paries on 17.12.1981. As per Clause 7 and 7-A of the lease deed, the plaintiff had to establish both industries within a year of delivery of possession and fully expanded his industries within five years of delivery of possession and use the whole land. It is also undisputed fact that due to some reasons, plaintiff could not established his industries within stipulated period. Therefore, defendant No.1 vide its order dated 12.04.1985, cancelled the allotment/lease deed of disputed land against which the plaintiff filed appeal before defendant No.2 which was also rejected vide order dated 13.12.1985. Accordingly, suit was executed before the trial Court which was dismissed on 30.04.2010 then, the plaintiff has filed appeal against the judgment and decree of trial Court before the First Appellate Court which was also dismissed on 25.06.2014. 3. Learned counsel appearing for the appellant/plaintiff contended that the learned Courts below having justifying in dismissing the civil suit as well as first appeal filed by the plaintiff/appellant and failed to consider the facts and oral & documentary evidence available on record. 3. Learned counsel appearing for the appellant/plaintiff contended that the learned Courts below having justifying in dismissing the civil suit as well as first appeal filed by the plaintiff/appellant and failed to consider the facts and oral & documentary evidence available on record. He further contended that the learned Courts below failed to appreciate the terms and conditions of Clause 7, 7-A & 7-B of the lease deed in its correct prospective. He further contended that the learned trial Court has justified in holding the plaintiff was not willing to establish his industries and the learned trial Court has also not justified in holding that show cause notices were given to the plaintiff/appellant before cancellation of lease deed. 4. Learned State counsel contended that there is no substantial question of law in this case, therefore, this Court should not interfere with the concurrent finding of facts of the Courts below. 5. Section 100 of the Code of Civil Procedure, 1908 provides as under : “i. 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. ii. An appeal may lie under this section from an appellate decree passed ex-parte. iii. In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. iv. Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. v. 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 subsection 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.” 6. I have heard learned counsel for the respective parties and perused the material available on record with utmost circumspection 7. I have heard learned counsel for the respective parties and perused the material available on record with utmost circumspection 7. It is undisputed fact that the State Government granted lease of disputed land to the plaintiff/appellant under small scale industry scheme for establishing the industries in name and style of Raipur Plastic and Trimurti Industries lease deed was executed by and between the parties on 17.12.1981 and according to the Clause 7 and 7-A of the lease deed, the plaintiff had to establish both industries within one year of delivery of possession and fully expanded his industries within five years of delivery of possession and use the whole land. 8. It is also undisputed fact that the appellant/plaintiff failed to establish his industries within stipulated period and after giving notice to the appellant, the appellant has failed to establish industries within stipulated period. Therefore, respondent No.1 vide order dated 12.04.1985 cancelled the allotment/lease deed of suit land and the plaintiff has filed appeal before defendant No.2 which was also rejected vide order dated 13.12.1985. Both the Courts below has given concurrent finding of the fact. 9. It is pertinent to mentioned here that under Section 100 of the CPC has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. It is also important that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the second appeal lie before the High Court. Therefore, it is quite clear that the power of the Court while exercising the jurisdiction under second appeal is limited and Court will not disturb the concurrent finding of the facts as general principle of law. 10. The scope of exercise of the jurisdiction under Section 100 of the C.P.C is limited to the substantial question of law. In this case, there is no substantial question of law involved and concurrent finding of facts given by the Courts below, therefore, the instant second appeal filed by the appellant/plaintiff stands deserves to be and is hereby dismissed on admission stage. 11. In the given facts and circumstances of the case, the Second Appeal fails and is accordingly dismissed. In this case, there is no substantial question of law involved and concurrent finding of facts given by the Courts below, therefore, the instant second appeal filed by the appellant/plaintiff stands deserves to be and is hereby dismissed on admission stage. 11. In the given facts and circumstances of the case, the Second Appeal fails and is accordingly dismissed. No order as to cost(s).