w w w . L a w y e r S e r v i c e s . i n



Nand Lal v/s Jaipur Vidhut Vitran Nigam Limited through Chairman & Others

    Civil Second Appeal No. 532 of 2011

    Decided On, 25 July 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE MOHAMMAD RAFIQ

    For the Plaintiff: Ashwani Chobisa, Counsel. For the Defendants: --------



Judgment Text

1. Heard learned counsel for plaintiff-appellant.

2. Plaintiff-appellant filed a suit for injunction, which was dismissed by trial court. Being aggrieved thereby, an appeal was preferred by plaintiff, which was dismissed by first appellate court. Hence this second appeal.

3. Learned counsel for appellant, in support of his case, has cited judgments of Supreme Court in Deoki Nandan v. Murlidhar and Others , AIR 1957 SC 133, and Messrs. Trojan and Co. v. RM. N.N. Nagappa Chettiar, AIR 1953

Please Login To View The Full Judgment!

SC 235, which, in the facts of present case, are not applicable.

4. Questions, which have been raised by appellant as questions of law, are not even questions of law what to say substantial questions of law. They are all questions of fact. Both the courts below have concurrently decided those issues in favour of defendant-respondents and against plaintiff-appellant.

5. Issues involved in present case are all questions of fact and there is concurrent finding of facts by both the Courts below thereabout, which cannot be interfered with by this Court in second appeal under Section 100 CPC.

6. A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram v. 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."

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

"......Suggested shortcomings in the findings of fact 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. ....."

8. The Hon'ble Supreme Court in Gurdev Kaur and Others v. Kaki and 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:

"81. Despite 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 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 violates the legislative intention.

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."

9. The Supreme Court in Dinesh Kumar v. Yusuf Ali, reported in (2010) 12 SCC 740, held that a second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. The High Court should not entertain a second appeal unless it raises a substantial question of law. It is obligation on the court of law to further the clear intendment of the legislature and not to frustrate it by ignoring the same.

10. The Supreme Court in Kondiba Dagadu Kadam v. Savitri Bai Sopan Gujar, (1999) 3 SCC 722, has held that the second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The question of law has to be distinguished from a substantial question of fact.

11. I have gone through the finding recorded by first appellate court on all the issues, which are of factual in nature and do not raise any question of law muchless any substantial question of law.

12. No substantial question of law is involved in this second appeal and same is dismissed at admission stage itself.

Appeal dismissed.
O R