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SA/37/1981 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 37 of 1981
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BALUBHAI
BHAGABHAI & 1 - Appellant(s)
Versus
NATVARLAL
NATHUBHAI & 11 - Defendant(s)
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Appearance
:
MR
ARUN H MEHTA for
Appellant(s) : 1 - 2.
MR SN SHELAT for Defendant(s) : 1 -
12.
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 31/01/2011
ORAL
ORDER
1. Present
Second Appeal has been preferred by the petitioners-original
defendants posing the substantial questions of law as follow:
2. The
facts of the case briefly stated are that respondent-original
plaintiff filed Regular Civil Suit No.219 of 1972 before the Court of
learned Civil Judge (S.D.), Bardoli, which came to be dismissed vide
judgment and order dated 30.08.1978 on appreciation of evidence
before the Court with regard to strip of land. It was specifically
observed that the plaintiff has not been able to prove that the suit
Nal just touching the
southern walls of the property of defendants belong to plaintiff.
Therefore, Regular Civil Appeal No.187 of 1978 was came to be
preferred by the plaintiff challenging the aforesaid judgment of the
trial Court. The said appeal was allowed by lower appellate Court
vide judgment and order dated 20th
November 1980 where on appreciation of evidence, the lower appellate
Court had made observations which have been focused in para:10 and
11. It was also observed on appreciation of evidence particularly the
Commissioner’s report that claim regarding ownership of land by the
defendant has been made at later stage and on appreciation of
evidence, appeal was allowed. It is against this judgment, present
Second Appeal has been preferred by the appellant-original defendant
posing the substantial question of law.
3. Heard
learned advocate Ms.Nisha M. Thakkar for Mr.A.H.Mehta, learned
advocate for the appellant and Ms.Dhara Shah, learned advocate for
Mr.S.N.Shelat, learned senior advocate for the respondent.
4. Having
heard learned counsel for the parties and having perused paper-book
which has been supplied and on considering the material evidence on
record as it is evident that the question of law which has been posed
is only with regard to absence of evidence on factual aspects which
cannot be said to be any substantial questions of law. Therefore, as
there is no substantial question of law which can be said to have
been involved, this Court, in exercise of discretion under section
100 of Code of Civil Procedure, is not inclined to interfere
and entertain the present appeal.
5. It
is well settled that scope of exercising discretion under section 100
of CPC in Second Appeal is very limited and the Court has to exercise
only when there is substantial question is involved. The Hon’ble Apex
Court in catena of judicial pronouncement including the judgment
reported in the case of (2007) 1 SCC 546 in
the case of Gurdev Kaur and ors. vs. Kaki and ors
wherein the Hon’ble Apex
Court has also observed that the amendment clearly indicates that
legislature never intended Second Appeal to become third trial on
facts and the High Court can interfere only when substantial
questions of law are involved. Referring to scope, the guidelines
have been laid down and it has been specifically observed in para-70
that after the amendment in CPC in 1976, the High Court can interfere
under section 100 of CPC only in case where substantial questions are
involved. Therefore, in light of these guidelines and the
observations of the Hon’ble Apex Court, as there is no substantial
questions of law, which can be said to have been involved, present
Second Appeal deserves to be
dismissed and accordingly stands dismissed. Rule is discharged.
Interim relief, if any, granted earlier, shall stand vacated.
(RAJESH
H SHUKLA, J.)
Amit
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