A.A. Abdul Jabbar v. M/s.Prasad Associates & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21..04..2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.907 of 2001A.A.Abdul Jabbar... Appellant/Plaintiffvs.1.M/s.Prasad Associates, rep.by its Partner, M.V.Prasad2.Mudra Devi... Respondents/DefendantsThis second appeal is filed against the judgement and decreedated 31.3.2000 passed by the learned Principal District Judge,Salem, in A.S.No.152 of 1999, confirming the judgement and decreedated 12.7.1999 passed by the learned I Additional District Munsif,Salem, in O.S.No.1052 of 1994.For Appellant : Mrs.P.T.Asha for M/s.Sarvabhauman AssociatesFor Respondents : Mr.D.Shivakumaran JUDGMENTThis second appeal has been filed by the plaintiff,animadverting upon the judgement and decree dated 31.3.2000 passed bythe learned Principal District Judge, Salem, in A.S.No.152 of 1999,confirming the common judgement and decree dated 12.7.1999 passed bythe learned I Additional District Munsif, Salem, in O.S.No.1052 of1994. For convenience sake, the parties are referred to here underaccording to their litigative status before the trial Court.2. A summation and summarisation of the relevant facts, whichare absolutely necessary and germane for the disposal of this secondappeal, would run thus:(a) The appellant/plaintiff filed the suit O.S.No.1052 of 1994as against the defendants, seeking permanent injunction, as as torestrain the defendants from interfering with his peaceful possession https://hcservices.ecourts.gov.in/hcservices/ and enjoyment of the suit properties and the goods stocked in theshops 9, 10 and 11 at Divya Towers, as against which, the defendantsfiled the written statement and resisted the suit.(b) During enquiry, the trial Court framed the relevant issues.The plaintiff examined herself as P.W.1 along with one C.Muthukumaras P.W.2 and Exs.A1 to A.8 were marked. One Madra Devi was examinedas D.W.1 and Exs.B1 to B7 were marked. Exs.C1 to C3 were marked asCourt documents.(c) Ultimately the trial Court dismissed the suit, as againstwhich, the defendant filed the A.S.No.152 of 1999, for nothing but tobe dismissed by the first appellate Court, confirming the judgementand decree of the trial Court.(d) Being disconcerted and aggrieved by the judgments anddecrees of both the Courts below, this second appeal has beenfocussed by the plaintiff on various grounds suggesting thefollowing substantial questions of law, which are extracted hereunder:a) Whether the Courts below are correct in law intheir construction of Ex.A1-Lease Deed?b) Whether the Courts below are correct in law intheir interpretation of Section 108(c) and (o) of theTransfer of Property Act, 1882?c) When the tenant is entitled to use the leasedpremises within the four boundaries given in the leasedeed, whether the Courts below are justified in law inholding that '7' feet frontage, situate within fourboundaries, does not form part of the lease hold premises?"(extract as found in the memorandum of second appeal)3. Heard the learned counsel appearing for theplaintiff/appellant and the learned counsel appearing for thedefendants/respondents.4. A deep analysis and poring over of the typed set of papers,including the certified copies of the judgements and decrees of boththe Courts below and the submissions made on both sides, woulddemonstrate and display that the plaintiff filed the suit forinjunction on the ground that the landlord/first defendant wasattempting to interfere with the demised premises bearing Door Nos.9,10 and 11. https://hcservices.ecourts.gov.in/hcservices/

5. The first defendant/landlord entered appearance and resistedthe suit by pointing out that the averments and the prayer in theplaint were couched in such a language that they were capable ofhiding their agenda behind it; in fact the plaintiff wanted to storeand pileup his goods on the corridor, which he was not expected to doas per clause-4 of the agreement between the plaintiff and the firstdefendant. Accordingly, the defendants prayed for the dismissal ofthe suit.6. The trial Court as well as the first appellate Court gave acategorical finding as against the plaintiff after analysing theevidence placed before it. 7. At this juncture my mind is reminiscent and redolent of thefollowing decisions of the Hon'ble 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. . . .. . . ."18. . . . . . 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. . . . . . "(ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAMSINGH AND ANOTHER.(iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL.A plain reading of those precedents would reveal and demonstrate https://hcservices.ecourts.gov.in/hcservices/ that under Section 100 of the Code of Civil Procedure, Second Appealcannot be entertained, unless there is substantial question of lawinvolved. Here as held supra, there is no substantial question oflaw is found exemplified. 8. The learned counsel for the defendants would invite theattention of this Court to the judgements of both the Courts belowand advance his argument to the effect that both the Courts belowconsidered Ex.C1-the Commissioner's report and Ex.C2-theCommissioner's plan and clearly spotlighted and highlighted the factthat the Commissioner himself noted that infront of those shop Nos.9,10 and 11, the plaintiff/tenant was misusing the verandah inviolation of clause-4 of the agreement, virtually. As such, both theCourts below understanding the real motive of the plaintiff,dismissed the suit, warranting no interference by this Court.9. However, at the time of argument, both sides in unison made asubmission to the effect that the landlord/first defendant also filedR.C.O.P. in the year 2008 for evicting the plaintiff from the demisedpremises and in such a case, it is crystal clear that the findings ofboth the Courts below that there was no cause of action for the suit,warrants no interference by this Court. Accordingly, I could see noquestion of law much less substantial question of law involved inthis matter.10. In the result, the second appeal is dismissed. No costs.Consequently, connected miscellaneous petition is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarmskTo1.The Principal District Judge, Salem.2.The I Additional District Munsif, Salem.Copy toThe Section Officer,VR Section, High Court, Madras+1cc to Mr.D.Shivakumaran, Advocate Sr 16304TS(CO)km/10.6.S.A.No.907 of 2001