Maharashtra State Electricity Board v. Sambhaji

Mr. H.M. Karwal, counsel for the applicant Mr. G.G. Suryawanshi, counsel for respondents ... CORAM: V.R.KINGAONKAR, J. DATE: 4th December, 2009 PER COURT

#2. Heard counsel for the parties. The delay condonation application is considered on strength of the statements in the application. There is only 19 days delay. The applicant is a Board. The applicant has expressed official 2 difficulties. Considering the explanation given in the application, the delay is condoned. Civil Application No. 6472 of 2008 is allowed.

#3. Immediately, the second appeal is taken up for consideration of admission under Section 100 of the Civil Procedure Code. By consent, heard on the question of admission.

#4. Mr. H.M. Karwa would submit that the xerox-copies of the transfer documents in respect of ownership of the five she- buffalos, which were electrified, were inadmissible. He would submit that both the Courts below utterly failed to consider this substantial question of Law and accepted the xerox-copies as gospel truth. He contended that the tortuous liability of the appellant is not duly proved.

#5. I find it difficult to countenance the submissions of Mr. Karwa. First, though the xerox-copies of transfer-deeds could not be admitted in evidence, yet the ownership of the five she-buffalos, which were electrocuted, is proved, in view of the fact that oral evidence was tendered by the plaintiff, there was evidence of veterinary officer Mr. Godbole (PW 2) and also admissions of the appellant’s own witness i. e. D.W.5 Tukaram. He admits that after due inquiry, it was revealed that all the five she-buffalos belonged to plaintiffs. In other words, the plaintiff probabilized their case regarding ownership of the five she-buffalos. The Courts below have 3 rendered findings of facts based on material. Obviously, mere error of admitting the xerox-copies of the transfer documents by itself cannot be regarded as substantial question of Law in this second appeal. The second appeal is outside the scope of Section 100 of Code of Civil Procedure. The Apex Court in “Gurdev Kaur and others V. Kaki and others” (A.I.R. 2006 Supreme Court 1975) held that even if there is gross error in the process of findings of facts, then also it cannot be treated as substantial question of Law and the second appeal cannot be entertained. In this view of the matter, the second appeal is dismissed. srm/ca6472.09 ( V.R. KINGAONKAR, J. ) 4