BENCH AT JAIPUR v. Sajid

Judgment

1. Sajid S/o Achchu Khan, R/o Payaga Moti Bag Road, Tonk, District Tonk (Rajasthan.)

2. Khalil S/o Achchu Kha, R/o Mohalla Payaga Moti Bag Road, Tonk, District Tonk (Rajasthan) (Deceased) 2/1. Mst. Farida Widow Of Khalil, R/o Mohalla Payaga Moti Bag Road, Tonk, District Tonk (Rajasthan) 2/2. Hasin S/o Achchu Khan, R/o Mohalla Payaga Moti Bag Road, Tonk District Tonk (Rajasthan) 2/3. Khurshid S/o Achchu Kha, R/o Mohalla Payaga Moti Bag Road, Tonk, District Tonk (Rajasthan) 2/4. Sannu S/o Achchu Khan, R/o Mohalla Payaga Moti Bag Road, Tonk, District Tonk (Rajasthan) 2/5. Saadat S/o Achchu Khan, R/o Mohalla Payaga Moti Bag Road, Tonk, District Tonk (Rajasthan) 2/6. Bitti S/o Achchu Khan, R/o Mohalla Payaga Moti Bag Road, Tonk, District Tonk (Rajasthan) 2/7. Aakil S/o Achchu Khan,, R/o Mohalla Payaga Moti Bag Road, Tonk, District Tonk (Rajasthan)

2/8. Yasrin D/o Achchu Khan, R/o Mohalla Payaga Moti Bag Road, Tonk, District Tonk (Rajasthan.) 2/9. Yasin S/o Achchu Khan, R/o Mohalla Payaga Moti Bag Road, Tonk, District Tonk (Rajasthan.)

3. Asalam S/o Achchu Khan, R/o Of Mohalla Payaga Moti Bag Road, Tonk District Tonk (Rajasthan)

4. Farid S/o Achchu Khan, R/o Mohalla Payaga Moti Bag [2025:RJ-JP:14896] (2 of 6) [CRES-27/2024] Road, Tonk, District Tonk (Rajasthan)

5. Addul Rashid S/o Sahabzada Abdul Mujib Khan, R/o Mujib Manzil, Moti Bag Road, At Present Mansarovar, Jaipur (Deceased) 5/1. Nasiruddin Widow Of Addul Rashid Khan, R/o Mujib Manzil Moti Bag Road, At Present Mansarovar Jaipur.

6. Habibunnishan W/o Mohammad Rafiq Khan, D/o Sahabzada Abdul Mujib Khan, R/o Gol Haveli Moti Bag Road, Tonk, Rajasthan, Presently Kumbelen 205, West -20 England. ----Respondents For Petitioner(s) : Mr. Banwari Singh for Mr. Sarvesh For Respondent(s) : Jain HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 02/04/2025 Order

2. Heard learned counsel for applicant. A perusal of record indicate that despite opportunities granted to the applicant plaintiff he has not taken care to ensure that the evidence is submitted before the trial court. As a result of non-examination of witness by plaintiff, evidence was closed. Later, the plaintiff has filed an application for further opportunity to submit the evidence but same was also declined by the learned trial court which resulted into dismissal of civil suit. The appellant plaintiff has further preferred an appeal under Section 96 of CPC and the appellate court after considering the submission has also dismissed the appeal preferred by the appellant. Now, when the second appeal is preferred before this Court, the matter was listed [2025:RJ-JP:14896] (3 of 6) [CRES-27/2024] as Item no.12 then the counsel did not take care to remain present before the Court.

3. If the counsel has taken care and remain present before this Court to plead his case, then the case may not be dismissed for non-prosecution. It means from trial court to this Court (from civil suit to second appeal) the plaintiff or his counsel remained negligent. If someone is not taking care of his litigation, how can same be continued for years.

4. Having gone through the reasons assigned by learned counsel for applicant, I am of the considered view that the reasons assigned in application are not sufficient and insufficiency is sufficient to dismiss the application for restoration.

5. Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a substantial question of law. Thus, the First Appellate Court is final court on facts and in second appeal normally cannot re-appreciate the evidence or facts.

6. Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd. AIR 1962 SC 1314, as under: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those [2025:RJ-JP:14896] (4 of 6) [CRES-27/2024] principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

7. Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the scope of Section 100 of CPC and summarised the law as under:

13. The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles. 13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction. 13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that: “At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; [2025:RJ-JP:14896] (5 of 6) [CRES-27/2024] (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the section is that the appeal shall be heard only on that question.” Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71 13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:- a) Not previously settled by law of land or a binding precedent. b) Material bearing on the decision of case; and (c) New point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. Therefore, it will depend on facts of each case. Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and Chandrabhan v. Saraswati 2022 SCC Online SC 1273.

16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 referring to various other cases held:- a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse. b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity. c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection.

8. In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC 405, Hon’ble Supreme Court explained the purpose of framing question of law in following manner: “a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question. b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon. c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.” [2025:RJ-JP:14896] (6 of 6) [CRES-27/2024]

9. Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following words:- “(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.”

10. In view of aforesaid, no case is made out for restoration of Civil Second Appeal, which was dismissed for non-prosecution on

06.11.2023. 11. Hence, the restoration application is hereby dismissed. CHETNA BEHRANI /69 (ASHOK KUMAR JAIN),J