Saraswathi v. Radhakrishnan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.03.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.1303 of 2008Saraswathi ..Appellants/Plaintiffsvs.Radhakrishnan ..Respondent/RespondentThis second appeal is filed under Sec.100 CPC against the judgmentand decree dated 30.04.2008 in A.S.No.26 of 2007 on the file ofSubordinate Court, Vellore confirming the judgment and decree dated13.03.2007 in O.S.No.780 of 2005 on the file of Additional DistrictMunsif Court, Vellore.For Appellants : No appearanceFor Respondent: No appearanceJ U D G M E N TThis second appeal is focussed by the original plaintiff,animadverting upon the judgement and decree dated 30.04.2008 passedin A.S.No.26 of 2007 by the Subordinate Court, Vellore, confirmingthe judgment and decree of the trial Court, namely, AdditionalDistrict Munsif Court, Vellore, in O.S.No.780 of 2005. Forconvenience sake, the parties are referred to hereunder according totheir litigative status before the trial Court.2. Pithily and precisely, tersely and briefly, avoidingdiscursive delineation of facts in view of the case of both sideshaving been set out in detail in the judgments of both the Courtsbelow, I would like to set out the germane facts thus:The second appellant/plaintiff herein filed the suit O.S.No.780of 2005 seeking the relief of declaration of title and permanentinjunction in respect of an immovable property. While so, thedefendant entered appearance and filed the written statement settingout the relevant facts including the pendency of E.A.No.478 of 2005in the Court concerned regarding the same subject matter of the suitproperty. Whereupon, the trial Court took up preliminary issue as tothe maintainability of the suit in view of Order 21 Rules 97 and 101of CPC. Ultimately, the lower Court dismissed the suit on the ground https://hcservices.ecourts.gov.in/hcservices/ that in view of the pendency of such E.A. proceedings, separate suitis not tenable and as against it, an appeal was filed, for nothingbut to be dismissed by the First Appellate Court, confirming thejudgment and decree of the trial Court. 3. Being disconcerted and aggrieved by the judgments and decreesof both the Courts below, this Second Appeal has been filed onvarious grounds as set out in the memorandum of appeal and alsosuggesting the following proposed substantial questions of law:"1. When the plaintiff seeks for relief with referenceto 2 items of property and the application filed under 21Rule 97 concerning only one item, still are the Courtsbelow right in dismissing the suit as not maintainable?2. Is the learned Subordinate Judge right indismissing the application under Order 21 Rule 97 CPC onthe ground that the memo filed was not pressed especiallywhen under the Memo, the plaintiff wanted both the suitand application under Order 21 Rule 97 to be triedtogether?"4. Despite printing the names concerned, none appeared.5. A bare perusing of and poring over the relevant recordsincluding the typed set of papers and the certified copies ofjudgments of both the Courts below, would display and demonstrate,expatiate and convey that in a different suit, viz., O.S.No.301 of2004, which was one for specific performance, a decree was passed.Whereupon, E.P.No.32 of 2005 emerged by way of executing the decreein O.S.No.301 of 2004 and at that time, the plaintiff/secondappellant herein filed E.A.No.478 of 2005 setting up claim over thesuit property involved in O.S.No.301 of 2004. Nonetheless, the sameplaintiff/second appellant herein filed the present suit concernedO.S.No.780 of 2005 seeking declaration and possession. It is exfacie and prima facie clear that both the Courts below adverting tothe relevant provisions of Order 21 Rules 97 and 101 of CPC, clearlyand categorically held that a separate suit was not maintainable andthere could be no second thought over it, in view of the settledlegal position.6. As such, the plaintiff/second appellant herein veryconveniently in order to bye pass such proposition of law would comeforward with a plea as though in the suit O.S.No.780 of 2005concerned initially only one property was found set out which was thesubject matter of the earlier suit in O.S.No.301 of 2004 andconsequently the subject matter of E.A.No.478 of 2005, and that oneother property was included in O.S.No.780 of 2005, and to thateffect, a memo was filed before the appellate Court, but theappellate Court dismissed it. https://hcservices.ecourts.gov.in/hcservices/

7. A perusal of the appellate Court's judgment would reveal thatI.A.No.35 of 2008 was filed before the appellate Court seekingpermission of the Court to file copy of the memo which was filedbefore the lower Court, presumably for adding one more property asper the plaintiff/second appellant. But the appellate Courtcorrectly dismissed that I.A. with a finding that no order was passedin that memo by the trial Court itself. 8. I am at a loss to understand as to how a litigant, namely,the plaintiff/second appellant herein after filing the suit totallyantithetical to the embargo contained in Order 21 Rules 97 and 101 ofCPC, subsequently as an afterthought try to include one otherproperty, so as to give an impression as though even though the suitmight be hit by Order 21 Rules 97 and 101 of CPC, it will not hit bysuch provision if a new property is added in the suit. If at all,the plaintiff/second appellant is having a case with regard to oneother item which was not included in the main suit, he ought to havetaken steps to initiate appropriate legal action and he cannot tinkerwith the illegally instituted suit in violation of Order 21 Rules 97and 101 of CPC and try to give artificially life to it. 9. At this juncture, my mind is redolent and reminiscent of thefollowing decision of the Hon'ble Apex Court reported in (2006) 5Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL, certainexcerpts from it would run thus:-"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. . . .. . . ."18. . . . . . It has to be kept in mind that theright of appeal is neither a natural nor an inherenth 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. . . . . . https://hcservices.ecourts.gov.in/hcservices/

21. . . . . However, it is clear that the legislaturehas chosen not to qualify the scope of "substantialquestion of law" by sufficing the words "of generalimportance" as has been done in many other provisions suchas Section 109 of the Code or Article 133(1)(a) of theConstitution. The substantial question of law on which asecond appeal shall be heard need not necessarily be asubstantial question of law of general importance. InGuran Ditta v. Ram Ditta the phrase "substantial questionof law' as it was employed in the last clause of the thenexisting Section 100 CPC (since omitted by the AmendmentAct, 1973) came up for consideration and their Lordshipsheld that it did not mean a substantial question of generalimportance but a substantial question of law which wasinvolved in the case. In Sir Chunilal case theConstitution Bench expressed agreement with the followingview taken by a Full Bench of the Madras High Court inRimmalapudi Subba Rao v. Noony Veeraju(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 ofapplying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law." https://hcservices.ecourts.gov.in/hcservices/

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) One other decision of the Hon'ble Apex Court could also be citedas under:2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER, anexcerpt 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 withoutadhering to the procedure prescribed under Section 100 ofthe Code. It has further been found in a number of cases https://hcservices.ecourts.gov.in/hcservices/ that 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."It is therefore crystal clear that without any substantialquestion of law, second appeal cannot be entertained. Here mydiscussion supra would evince that absolutely there is no question oflaw, much less substantial question of law involved in this matter.As such, this Second Appeal is dismissed. No costs. sd/-Asst.Registrar/true copy/Sub Asst.Registrargms https://hcservices.ecourts.gov.in/hcservices/ To1.The Subordinate Judge, Vellore.2.The Additional District Munsif Court, Vellore.S.A.No.1303 of 2008SSR (CO)GSK 15.04.2009.