Ramasamy v. Mariappan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:11.3.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.1090 of 2008andM.P.No.1 of 2008 Ramasamy.. Appellant/Defendantvs.Mariappan.. Respondent/Plaintiff This second appeal is filed against the order dated 30.4.2007passed in A.S.No.11 of 2007 by the Additional District Court(FTC-IV),Bhavani, confirming the order dated 28.11.2003 passed in O.S.No.331of 2002 by the II Additional District Munsif, Bhavani District.For Appellant : * Mr.VijaysankarFor Respondent : * Mr.N.ManokaranJUDGMENTThis second appeal is focussed by the original defendant,animadverting upon the judgement and decree dated 30.4.2007 passed inA.S.No.11 of 2007 by the Additional District Court(FTC-IV), Bhavani,confirming the judgement of the trial Court, namely, the IIAdditional District Munsif, Bhavani District, in O.S.No.331 of 2002,which was a suit for permanent injunction, so as to restrain thedefendant from interfering with the peaceful possession and enjoymentof the suit path way by the plaintiff. For convenience sake, theparties are referred to hereunder according to their litigativestatus before the trial Court.2. Broadly but briefly, narratively but precisely, the relevantfacts, which are absolutely necessary and germane for the disposal of https://hcservices.ecourts.gov.in/hcservices/ this second appeal, could be portrayed thus in view of the fact thatboth the Courts below elaborately detailed and delineated therelevant facts in their respective judgements.The plaintiff earlier filed the suit O.S.No.460 of 1999 beforethe II Additional District Munsif, Bhavani, seeking declaration ofhis title and permanent injunction relating to two items ofproperties, one to an extent of 48 cents and another to an extent of1¼ cents, which includes the present suit property also. The saidsuit was dismissed. However the fact remains that in the earliersuit, the written statement filed by the same defendant herein,marked as Ex.A6 in this suit, would demonstrate and evidence, expressand expatiate in unmistakable terms, as correctly pointed out by thelower Court in its judgement, that the defendant candidly andcategorically admitted the existence of common path way in the suitproperty herein. Ultimately, the earlier suit was dismissed on theground that the prayer of the plaintiff for declaration of titleover the said property and for injunction was untenable. Per contra,the present suit is for obtaining injunction so as to restrain thedefendant from interfering with the plaintiff's right to use the suitcommon path way, found described in the schedule of the plaint. Assuch, the lower Court, adverting to various other facts and evidenceheld that the suit was not barred by res judicata and the appellateCourt also confirmed the order of the lower Court. Beingdisconcerted and aggrieved by the judgements of both the Courtsbelow, the defendant in the grounds of second appeal suggested thefollowing substantial questions of law:-"A. Whether the judgements and decrees of the Courts beloware vitiated by non framing of proper and relevant issueshaving regard to the nature of controversy between theparties. By not framing relevant issues the courts belowhave posed wrong and irrelevant issues for considerationaffecting their judgement.B. Whether the judgements and decrees of the courts beloware vitiated on account of non consideration of the factthat the present suit in O.S.No.331 of 2002 was barred byres judicata in as much as in the earlier suit inO.S.No.640 of 1999 for the relief of declaration andpermanent injunction over the same suit property inS.No.683/2 had been dismissed by judgment and decree dated21.1.2002.C. Whether the judgement and decree of the courtsbelow are vitiated by their throwing the burden of proofwrongly on the defendant ignoring the basic principles oflaw that it was the plaintiff who had to prove andsubstantiate his case. https://hcservices.ecourts.gov.in/hcservices/ D. Whether the judgement and decrees of the courtsbelow are vitiated by their drawing of unnecessary andunwarranted of inference/assumptions from the evidence ofthe parties including the report of the AdvocateCommissioner."3. A bare poring over and perusal of the judgement of the lowerCourt, as found enclosed in the typed set of papers, woulddemonstrate and display that as many as four issues were framed bythe trial Court as under:-(i) Whether the plaintiff is entitled for permanentinjunction;(ii) Whether the suit was bad for want of the prayerfor declaration of title;(iii) Whether there is no cause of action for filingthe suit; and(iv) to what relief is the plaintiff entitled to?4. In my considered opinion, no doubt, the lower Court couldhave framed issues in a much better manner by delving deep into thefactual aspects of the pleadings; nevertheless the perusal of thetyped set of papers, would evince and set forth that understandingthe real controversy between the parties, the trial Courtentertained overwhelming or overbrimming oral and documentaryevidence on either side, even touching upon the previous litigationin O.S.No.460 of 1999. Surprisingly and shockingly, the defendantmiserably and grossly failed and abstained from raising the plea ofres judicata in the written statement filed by him.5. It is a common or garden principle of law in addition to itbeing a rudimentary principle of practice and pleading that the pleaof res judicata should be raised as a specific plea in the writtenstatement and it is the bounden duty of the defendant, who press intoservice the plea of res judicata, to produce the certified copies ofthe pleadings, issues and the judgement in support of his plea.However, in the written statement filed by the defendant before thetrial Court, even though the very plea of res judicata has not beentaken, nonetheless by at least barely referring to the proceedingsin the previous suit, there could have been some statement, but it isconspicuous of its missing. The lower Court considered that aspectalso in its judgement and held that the suit is not barred by resjudicata. The plaintiff himself, as revealed by the records,exhibited Ex.A5 to A8, the certified copies of the plaint, writtenstatement and sketch relating to the previous suit O.S.No.460 of1999. The defendant marked Exs.B5 and B6-the certified copies of thejudgement and decree in the previous suit O.S.No.460 of 1999. Assuch both the Courts below au fait with law and au courant with https://hcservices.ecourts.gov.in/hcservices/ facts, considered the legal as well as the factual aspects and heldthat the present suit was not barred by res judicata.6. At this juncture I would like to highlight and spotlight thefact that the previous suit, indubitably and indisputably,incontrovertibly and unassailably, was for declaration of plaintiff'stitle and possession in respect of the larger extent of land,including the suit property, but it was dismissed. But here it isquite obvious and axiomatic, pellucid and palpable, so to say, asplain as day, that the present suit is for injunction, as as torestrain the defendant from interfering with the plaintiff's right touse the path way. As has been already highlighted supra, as perEx.A6, the written statement filed by the defendant in the previoussuit, he supinely and plainly admitted the existence of such commonpath way. Claiming absolute right and ownership over the suit pathway is different from claiming right of usage as path way. There isabysmal difference between the two prayers. As such, by citing theprevious judgement, the appellant herein cannot try to canvas theplea of res judicata and thereby try to achieve success in thelitigative battle. I would make it clear that any amount ofevidence without pleadings should be eschewed. 7. Here even considering the plea of res judicata on merits, inview of my discussion supra, I could see no reason to interfere withthe findings of both the Courts relating to the plea concerning resjudicata. Absolutely there is nothing to indicate that any questionof law much less substantial question of law is involved in this case.8. At this juncture my mind is reminiscent and redolent of thefollowing decisions of the Honourable Apex Court:(i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH(MINOR) VS. SESHAMMAL, certain excerpts from its would runthus:-"17. After the amendment a second appeal can be filedonly if a substantial question of law is involved in thecase. The memorandum of appeal must precisely state thesubstantial question of law involved and the High Court isobliged to satisfy itself regarding the existence of such aquestion. If satisfied, the High Court has to formulatethe substantial question of law involved in the case. Theappeal is required to be heard on the question soformulated. However, the respondent at the time of hearingof the appeal has a right to argue that the case in theCourt did not involve any substantial question of law. Theproviso to the section acknowledges the powers of the HighCourt to hear the appeal on a substantial point of law,though not formulated by it with the object of ensuring https://hcservices.ecourts.gov.in/hcservices/ that no injustice is done to the litigant where such aquestion was not formulated at the time of admission eitherby mistake or by inadvertence.18. It has been noted time and again that withoutinsisting for the statement of such a substantial questionof law in the memorandum of appeal and formulating the sameat the time of admission, the High Courts have been issuingnotices and generally deciding the second appeals withoutadhering to the procedure prescribed under Section 100 CPC.It has further been found in a number of cases that noefforts are made to distinguish between a question of lawand a substantial question of law. In exercise of thepowers under this section in several cases, the findings offact of the first appellate court are found to have beendisturbed. It has to be kept in mind that the right ofappeal is neither a natural nor an inherent right attachedto the litigation. Being a substantive statutory right, ithas to be regulated in accordance with law in force at therelevant time. The conditions mentioned in the sectionmust be strictly fulfilled before a second appeal can bemaintained and no court has the power to add or to enlargethose grounds. The second appeal cannot be decided onmerely equitable grounds. The concurrent findings of factswill not be disturbed by the High Court in exercise of thepowers under this section. Further, a substantial questionof law has to be distinguished from a substantial questionof fact. This Court in Sir Chunilal v. Mehta and Sons,Ltd., v. Century Spg.&Mfg.Co.Ltd.held that (SCR pp.557-58)"The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importance orwhether it directly and substantially affects the rights ofthe parties and if so whether it is either an open questionin the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is notfree from difficulty or calls for discussion of alternativeviews. If the question is settled by the highest court orthe general principles to be applied in determining thequestion are well settled and there is a mere question ofapplying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law."21. The phrase "substantial question of law", asoccurring in the amended Section 100 CPC is not defined inthe Code. The word substantial, as qualifying "question oflaw", means – of having substance, essential, real of sound https://hcservices.ecourts.gov.in/hcservices/ worth, important or considerable. It is to be understoodas something in contradistinction with-technical, of nosubstance or consequence, or academic merely. However, itis clear that the legislature has chosen not to qualify thescope of "substantial question of law" by sufficing thewords "of general importance" as has been done in manyother provisions such as Section 109 of the Code or Article133(1)(a) of the Constitution. The substantial question oflaw on which a second appeal shall be heard need notnecessarily be a substantial question of law of generalimportance. In Guran Ditta v. Ram Ditta the phrase"substantial question of law' as it was employed in thelast clause of the then existing Section 100 CPC (sinceomitted by the Amendment Act, 1973) came up forconsideration and their Lordships held that it did not meana substantial question of general importance but asubstantial question of law which was involved in the case.In Sir Chunilal case the Constitution Bench expressedagreement with the following view taken by a Full Bench ofthe Madras High Court in Rimmalapudi Subba Rao v. NoonyVeeraju(Sir Chunilal case, SCR p.557)"When a question of law is fairly arguable, wherethere is room for difference of opinion on it or where theCourt thought it necessary to deal with that question atsome length and discuss alternative views, then thequestion would be a substantial question of law. On theother hand if the question was practically covered by thedecision of the highest court or if the general principlesto be applied in determining the question are well settledand the only question was of applying those principles tothe particular fact of the case it would not be asubstantial question of law."This Court laid down the following test as proper test, fordetermining whether a question of law raised in the case issubstantial:(Sir Chunilal case, SCR pp.557-58)"The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importance orwhether it directly and substantially affects the rights ofthe parties and if so whether it is either an open questionin the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is notfree from difficulty or call for discussion of alternativeviews. If the question is settled by the highest court orthe general principles to be applied in determining thequestion are well settled and there is a mere question of https://hcservices.ecourts.gov.in/hcservices/ applying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law."23. To be "substantial" a question of law must bedebatable, not previously settled by law of the land or abinding precedent, and must have a material bearing on thedecision of the case, if answered either way, insofar asthe rights of the parties before it are concerned. To be aquestion of law "involving in the case" there must be firsta foundation for it laid in the pleadings and the questionshould emerge from the sustainable findings of fact arrivedat by court of facts and it must be necessary to decidethat question of law for a just and proper decision of thecase. An entirely new point raised for the first timebefore the High Court is not a question involved in thecase unless it goes to the root of the matter. It will,therefore, depend on the facts and circumstance of eachcase whether a question of law his a substantial one andinvolved in the case or not, the paramount overallconsideration being the need for striking a judiciousbalance between the indispensable obligation to do justiceat all stages and impelling necessity of avoidingprolongation in the life of any lis.(See Santosh Hazari v.Purushottam Tiwari).24. . . . (iii) The general rule is that High Court will notinterfere with the concurrent findings of the Courts below.But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below haveignored material evidence or acted on no evidence; (ii) thecourts have drawn wrong inferences from proved facts byapplying the law erroneously; or (iii) the courts havewrongly cast the burden of proof. When we refer to"decision based on no evidence", it not only refers tocases where there is a total dearth of evidence, but alsorefers to any case, where the evidence, taken as a whole,is not reasonably capable of supporting the finding."(ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAMSINGH AND ANOTHER, an excerpt from it would run thus- "9. It has been noted time and again that withoutinsisting for the statement of such a substantial questionof law in the memorandum of appeal and formulating the sameat the time of admission, the High Courts have been issuingnotices and generally deciding the second appeals without https://hcservices.ecourts.gov.in/hcservices/ adhering to the procedure prescribed under Section 100 ofthe Code. It has further been found in a number of casesthat no efforts are made to distinguish between a questionof law and a substantial question of law. In exercise ofthe powers under this Section in several cases, thefindings of fact of the first appellate Court are found tohave been disturbed. It has to be kept in mind that theright of appeal is neither a natural nor an inherent rightattached to the litigation. Being a substantive statutoryright, it has to be regulated in accordance with law inforce at the relevant time. The conditions mentioned inthe section must be strictly fulfilled before a secondappeal can be maintained and no court has the power to addor to enlarge those grounds. The second appeal cannot bedecided on merely equitable grounds. The concurrentfindings of facts will not be disturbed by the High Courtin exercise of the powers under this Section. Further, asubstantial question of law has to be distinguished from asubstantial question of fact. This Court in Sir Chunilalv. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR 1962SC 1314) held that:"The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importance orwhether it directly and substantially affects the rights ofthe parties and if so whether it is either an open questionin the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is notfree from difficulty or calls for discussion of alternativeviews. If the question is settled by the highest court orthe general principles to be applied in determining thequestion are well settled and there is a mere question ofapplying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law."9. A plain reading of the above judgements would leave no doubtthat unless there is substantial question of law involved in amatter, no second appeal would lie. The trial Court also, in itselaborate judgement considered all the pleas of the defendant, whichwere put forth during trial and arguments, and suitably dealt with bypointing out that the said suit path way is running from East to Weststarting from Paruvachi Sethunampalayam Main Road on the East towardsWest. The trial Court relied on the oral as well as the documentaryevidence adduced on both sides and rendered its judgement and theappellate Court correctly confirmed it. Hence, I could see no meriton the part of the defendant in trying to pursue this second appealand as such at the admission stage itself I would like to dismiss it. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the second appeal is dismissed. No costs. Consequently,connected miscellaneous petition is dismissed.Sd/Asst.Registrar 31.3.2009*(Amended as per the Order of this Court dated 12.8.2009and made herein)Sd/-Asst.Registrar 17.8.2009/true copy/Sub Asst.RegistrarMskTo1. The Additional District Court(FTC-IV), Bhavani |Amended Order to be2. The II Additional District Munsif, |Substituted to the Bhavani District. |Judgement already |despatched |1 CC To Mr.V.Vijay Shankar, Advocate, SR NO.7651/09 S.A.No.1090 of 2008rs1(co)pmk/2.4.2009.pmk/18.8.2009.