IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR JUDGMENT S.B. Civil Second Appeal No. 548/2011 Ram Kumar & Others Vs. Revad Ram. DATE OF JUDGMENT: 04.08.2011 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Dhanesh Saraswat, for the appellants. Mr. Sanjay Rahar, for the respondent. BY THE COURT:
Heard learned counsel for the appellants.
2. Plaintiff-respondent’s suit for permanent injunction in respect of disputed property has been decreed by both the courts below. Hence, the defendants-appellants have preferred this second appeal.
3. The issues involved in the present case are relating to questions of facts and there is concurrent finding of facts by both the courts below. Learned counsel for the appellants is unable to point out any illegality or perversity in the findings recorded by both the courts below, so as to interfere with the same.
4. Second appeal can be entertained only on substantial question of law, which, in my view, is not involved in the present second appeal.
5. 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.
6. 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 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. …..
7. 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:
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.
8. Since no substantial question of law is involved in this second, hence, it is dismissed in limine.
(NARENDRA KUMAR JAIN),J.
Manoj,
S.No.S.127.
