J.Vaithilingam... v. A.Murugesan....

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:19.3.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.973 of 2008J.Vaithilingam... Appellant/Defendant vs.A.Murugesan.... Respondent/Plaintiff This second appeal is filed under section 100 of C.P.C. againstthe judgement and decree dated 23.2.2007 passed in A.S.No.93 of 2005by the Principal District Judge(FAC), I Additional District Judge,Salem, confirming the judgement and decree dated 29.6.2005 passed bythe Sub Judge, Attur, in O.S.No.203 of 2003.For Appellant : No appearanceFor Respondent : No appearanceJUDGMENTThis second appeal is focussed by the defendant, animadvertingupon the judgement and decree dated 23.2.2007 passed in A.S.No.93 of2005 by the Principal District Judge(i.c), Salem, confirming thejudgement and decree dated 29.6.2005 passed by the Sub Judge, Attur,in O.S.No.203 of 2003, which was filed for specific performance. 2. The defendant entered appearance and filed written statement,setting out various pleas inter alia to the effect that the saidagreement to sell emerged only as a security for the repayment ofloan and the sale price found set out in the agreement to sale isabysmally low., etc. (b) The trial Court framed the relevant issues. During trial,the plaintiff examined himself as P.W.1 apart from examining oneArumugam as P.W.2 and Ex.A1 to A.3 were marked. The defendantexamined himself as D.W.1 and also examined one Eswaran as D.W.2. andEx.B1 was marked.(c) Ultimately, the trial Court decreed the suit and as againstwhich, A.S.No.93 of 2005 was filed for nothing but to be dismissed bythe first appellate Court, confirming the judgement and decree of thelower Court. https://hcservices.ecourts.gov.in/hcservices/

3. 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:-(1) Whether the Ex.A1 is document of security for theloan borrowed by the defendant/appellant from the plaintiffor bona fide document of agreement of sale?(2) Whether the decree granted by the Courts below aresustainable in the eye of law in the absence of anydocumentary evidence to show that the plaintiff was readilyhaving the balance sale consideration of Rs.25,000/- by wayof fulfilling his part.?(3) In a plaint for specific performance whether it issufficient if a person merely claims that he is ready andwilling to perform his part without showing his bona fide byway of document or proof of evidence that he was having thebalance sale consideration.?(4) Whether the decree of the Courts below aresustainable?"4. Despite printing the names concerned, none appeared.5. A deep reading and poring over the typed set of papers,including the judgements of both the Courts below, would convey andproject the facts to the effect that the plaintiff and the defendantentered into an agreement to sell, whereby the latter agreed to sellin favour of the former, the immovable properties in the schedule ofthe plaint. However, the defendant committed default in performinghis part of the contract, which necessitated the plaintiff to filethe suit. Both the Courts below thoroughly considered the plea ofthe defendant and held that absolutely there was no shard or shred,scintilla or pint-sized, iota or molecule extent of evidence tosupport the case of the defendant that in connection with the allegedloan of Rs.2,25,000/- borrowed by the defendant from the plaintiff,the borrower paid any interest, as claimed by him. 6. The first appellate Court in Paragraph 12 of the judgementeven went to the extent of observing that had there been anysemblance of evidence to evince and indicate that the defendant paidinterest towards the alleged loan, as claimed by him, for eightmonths, at least there would be some probability of the Court drawinginference in favour of the plea of the defendant and in the absenceof any such evidence, the first appellate Court expressed its viewthat the plea of defendant's cannot be countenanced and upheld. 7. The first appellate Court also, in paragraph 11 of the https://hcservices.ecourts.gov.in/hcservices/ judgement, referred to the decision of the Honourable Apex Courtreported in AIR 1997 SC 2702 – (TAJ RAM V. PATTIRAM BHAGU) as wellas the decision of this Court in NANJAMMAL V. PALANIYAMMAL – 1993 IILAW WEEKLY 205 and held that quite antithetical to the terms andconditions, as found set out in the agreement to sell-Ex.A1-dated22.7.2002, the defendant would not be justified in pleading that thereal transaction was only a loan transaction. De hors thatproposition, absolutely no evidence was placed by the defendant tosubstantiate his plea and in such a case, I am at a loss tounderstand as to how the defendant can raise his accusative finger asagainst the judgements of both the Courts below.8. The proposed substantial question of law (1) is not at allreferring to any question of law much less the substantial questionof law, as it is only resembling with that of the issue No.2, framedby the trial Court.9. The suggested substantial question of law (2) and (3) arerelating to the readiness and willingness of the plaintiff to pay theremaining part of the sale consideration of Rs.25,000/-. 10. The preponderance of probabilities would govern theadjudication in civil cases. Here the admitted factual position wasthat the plaintiff parted with a huge sum of Rs.2,25,000/- even asearly as on 22.7.2000 in favour of the defendant and only there was apittance of Rs.25,000/- yet payable by the plaintiff to thedefendant. The nature of the plea taken by the defendant wouldclearly evidence that he was not willing to execute the sale deedunder one pretext or other. Put simply, believing the evidenceadduced on the side of the plaintiff, the trial Court held thatvirtually the plea of the defendant was only a whistle for a wind andthat the plaintiff was always ready and willing to pay the pittanceof Rs.25,000/- and get the sale deed executed. As such, there isabsolutely no substantial question of law, as found evinced in thesuggested substantial questions of law ( 2) and (3). 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. . . .. . . ." https://hcservices.ecourts.gov.in/hcservices/

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. . . . . . 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) https://hcservices.ecourts.gov.in/hcservices/ "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."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 also https://hcservices.ecourts.gov.in/hcservices/ refers 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 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, no https://hcservices.ecourts.gov.in/hcservices/ second appeal would lie.12. My discussion supra would connote and denote that hereabsolutely there is no merit in the second appeal and accordingly,the same is dismissed confirming the judgements and decrees of boththe Courts below. No costs. Consequently, connected miscellaneouspetition is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarMskTo1.The Principal District Judge(FAC), I Additional District Judge, Salem.2.The Subordinate Judge, Attur.Copy to the Section Officer, V.R.Section, High Court, Madras.1 CC To Mr.S.Mani, Advocate, SR NO.9053 S.A.No.973 of 2008ck(co)pmk/29.4.2009.