S.B. CIVIL SECOND APPEAL No. 317 of 2011 · Rajasthan High Court

Hon'ble Mr. Narendra Kumar Jain,J. Mr.Anil Jain, for appellants. BY THE COURT:

Heard the learned counsel for appellants.

Plaintiffs-appellants filed a suit for permanent injunction, which was decreed by trial court and the judgment and decree passed by trial court has been affirmed by first appellate court vide its judgment and decree dated 30th October, 2010. The present second appeal has been preferred on behalf of the defendants.

I have examined the finding of both the courts below and I am of the view that question involved in the present case is purely a question of fact and there 2 S.B. Civil Second Appeal No.317/2011 is concurrent finding of facts by both the Courts below, which cannot be interferred with by this Court in second appeal under Section 100 CPC.

A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram vs. Ameerchand- (1981) 2 SCC 414, considered the effect of amendment made in Section 100 of the CPC in 1976, and held as under:

......The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law.

The Hon'ble Supreme Court, in Ramaswamy Kalingaryar Vs. Mathayan Padayachi-AIR 1992 SC 115, while considering the scope of Section 100 CPC, held as under:

......Suggested shortcomings in the findings of fact 3 S.B. Civil Second Appeal No.317/2011 recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of S.100, C.P.C., which defines the contours of the power of the High Court in second appeal. .....

The Hon'ble Supreme Court in Gurdev Kaur & Others Vs. Kaki & Others-(2007) 1 SCC 546, considered the true import, scope and ambit of Section 100 CPC by referring the Section 100 CPC, before and after amendment of 1976, various declarations of law by Privy Council and Supreme Court, Legislative background in the 54th Report of the Law Commission of India submitted in 1973, Historical perspective, Rational behind permitting second appeal on substantial question of law, and held as under: Despite “81. repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to 4 S.B. Civil Second Appeal No.317/2011 the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly legislative intention. violates

82. In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.”

No substantial question of law is involved in this second appeal and the same is, accordingly dismissed in limine. (Narendra Kumar Jain),J. Sanjay93