Lakshmi v. Raman

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:19.3.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.104 of 2009Lakshmi... Appellant/Defendant vs.Raman.... Respondent/PlaintiffThis second appeal is filed under Section 100 of C.P.C. againstthe judgement and decree dated 15.11.2007 passed in A.S.No.125 of2007 by the Principal Subordinate Court, Salem, confirming thejudgement and decree dated 4.4.2007 passed by the II Addl. DistrictMunsif, Salem, in O.S.No.2423 of 2004. For Appellant : No appearance JUDGMENTThis second appeal is focussed by the defendant, animadvertingupon the judgement and decree dated 15.11.2007 passed in A.S.No.125of 2007 by the Prl. Sub Court, Salem, confirming the judgement anddecree dated 04.04.2007 passed by the II Additional District Munsif,Salem, in O.S.No.2423 of 2004, which was filed for permanentinjunction as against the defendant, restraining him from interferingwith the plaintiff's peaceful possession and enjoyment of the suitimmovable property. For convenience sake, the parties are referred tohereunder according to their litigative status before the trial Court.(b) The trial Court framed the relevant issues. During trial, onthe plaintiff's side one Raman was examined as P.W.1; Semban wasexamined as P.W.2 and Vairavel was examined as P.W.3 and Exs.A1 toA47 were marked. On the defendant's side no one was examined and nodocument was marked. Ex.C1 to Ex.C3 were marked as Court documents.(c) Ultimately, the trial Court decreed the suit and as againstwhich, A.S.No.125 of 2007 was filed for nothing but to be dismissedby the first appellate Court, confirming the judgement and decree of https://hcservices.ecourts.gov.in/hcservices/ the lower Court.2. Being disconcerted and aggrieved by the judgements and decreesof both the Courts below, this second appeal is focussed by thedefendant on various grounds and also setting out the followingsubstantial questions of law:-a) Whether the Courts below are justified in holdingthat the suit is not bared by res judicata and decreeing thesuit for permanent injunction as prayed for?b) Whether the suit for permanent injunction withoutseeking the relief of declaration of title of therespondent/plaintiff is maintainable in law in view of thepermanent injunction granted in favour of theappellant/defendant herein in the earlier suit in O.S.No.754of 2000 filed by her?3. Despite printing the names concerned, none appeared.4. A bare poring over and perusal of the typed set of papers,including the judgements of both the Courts below, would exemplifyand expatiate, demonstrate and display that earlier the suitO.S.NO.754 of 2000 was filed as against six persons, including therespondent/plaintiff herein, namely, Raman, by citing him as D3therein and in respect of the 'A' scheduled property therein, theprevious suit was dismissed and in respect of the 'B' scheduledproperty, the suit was decreed.5. The 'B' scheduled property in the said suit O.S.No.754 of2000, was described as one bearing Survey No.13/4C2, comprising of 27cents. However, in the present suit O.S.No.2423 of 2004, the SurveyNumber is 28/3E2 measuring an extent of 0.41.5 ares.6. It is therefore ex facie and prima facie clear that the suitproperty in the present suit is different from the suit property inthe earlier suit and in such a case, a fortiori the plea of resjudicata cannot be pressed into service. It is obvious and axiomaticthat a subsequent suit is barred between the same parties if at allthe dispute is with regard to one and the same item of property. Thelower Court, au fait with law and au courant with facts appropriatelyand appositely referred to the above said point and decided that theprinciple of res judicata is not applicable and no more dilation onthat point is required, as it is quite obvious and axiomatic. Assuch, the suggested substantial question of law (a), based on resjudicata, does not arise.7. The suggested substantial question of law (b) also is centeredon the same plea to the effect that the injunction granted in theprevious suit O.S.No.754 of 2000 would be a bar for the respondent https://hcservices.ecourts.gov.in/hcservices/ herein to pray for injunction in the present suit concerned. 8. To the risk of repetition, without being tautalogous, I wouldlike to highlight that in the present suit, the Survey Number is28/3E2A, which is, as correctly found out by the lower Court, coveredby the plaintiff's sale deed Ex.A1-dated 17.2.1994; wherefore thequestion of the plaintiff praying for the declaration of title doenot arise and the plaintiff correctly thought fit to pray only forinjunction in respect of a land, over which he is having ownershipright, as per Ex.A1-his title deed and that too when indubitably andindisputably the defendant does not claim ownership right over thesubject matter of Ex.A1, which is the suit property herein.9. No doubt, the trial Court also pointed out that there isboundary dispute between the plaintiff and the defendant. Butneither of the parties took steps to get the boundary dispute settledby filing comprehensive suit. Put simply, one fact is clear that theplaintiff and the defendant in the suit do not claim each othersland, but there is some boundary dispute and it is for the parties,as correctly pointed out by the trial Court, to seek necessary remedyto get the boundary dispute settled once and for all. As such, basedon documentary and oral evidence, the trial Court as well as thefirst appellate Court thought fit to grant injunction in favour ofthe plaintiff, recognising the possession of the plaintiff over thesuit property, warranting no interference by this Court.10. Both the Courts below, after discussing the evidence, bothoral and documentary, held that the plaintiff, on the date of filingof the suit, was in possession of the suit property, as contemplatedin Ex.A1 and accordingly, granted injunction and this Court, inSecond appeal cannot be called upon to re-appreciate those detailsrelating to possession.11. At this juncture, my mind is redolent and reminiscent of thefollowing decisions of the Honourable Supreme Court:(i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS.SESHAMMAL, certain excerpts from its 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 right https://hcservices.ecourts.gov.in/hcservices/ attached 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. . . . . . 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 our https://hcservices.ecourts.gov.in/hcservices/ opinion, 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."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." https://hcservices.ecourts.gov.in/hcservices/ (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 withoutadhering 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."A plain reading of the above judgements would leave no doubt thatunless there is substantial question of law involved in a matter, nosecond appeal would lie.12. My discussion supra would connote and denote that here https://hcservices.ecourts.gov.in/hcservices/ absolutely there is no merit in the second appeal and accordingly,the same is dismissed. No costs. Consequently, connectedmiscellaneous petition is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarMskTo1.The Principal Subordinate Judge, Salem2.The II Addl. District Munsif, Salem.1 CC To Mr.V.R.Rajasekaran, Advocate, SR NO.8601 S.A.No.104 of 2009rsm(co)pmk/31.3.2009.