{"id":262454,"date":"2011-02-15T00:00:00","date_gmt":"2011-02-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chunibhai-vs-ambalal-on-15-february-2011"},"modified":"2015-12-30T20:54:19","modified_gmt":"2015-12-30T15:24:19","slug":"chunibhai-vs-ambalal-on-15-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chunibhai-vs-ambalal-on-15-february-2011","title":{"rendered":"Chunibhai vs Ambalal on 15 February, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Chunibhai vs Ambalal on 15 February, 2011<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSA\/346\/1983\t 16\/ 16\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSECOND\nAPPEAL No. 346 of 1983\n \n\n \n \n=========================================================\n\n \n\nCHUNIBHAI\nNATHABHAI PATEL & 4 - Appellant(s)\n \n\nVersus\n \n\nAMBALAL\nDAHYABHAI PATEL - Defendant(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nVC DESAI for\nAppellant(s) : 1 - 5. \nMR BR PARIKH for Defendant(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 15\/02\/2011 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
Heard
\n\tlearned advocate Mr. VC Desai on behalf of appellant, learned
\n\tadvocate Mr. BR Parikh appearing for respondents.  The present
\n\tappellants are original defendant and present respondent is original
\n\tplaintiff.\n<\/p>\n
The
\n\tbrief facts of present second appeal are as under:\n<\/p>\n
“The
\n\tPatel Ambalal Dahyabhai has filed regular civil suit no. 103\/1975
\n\tagainst present respondent on the ground that plaintiff is an owner
\n\tand in possession of land bearing survey no. 37\/1 and 36 situated at
\n\tBhatera, Taluka Kapadwanj.  The said land is belonging to plaintiff
\n\tand his name is also recorded in revenue records.  According to
\n\tplaintiff, on western side of his land, there is a land bearing
\n\tsurvey no. 34 belonging to defendants and in possession of
\n\tdefendants.  According to plaintiff, he has right of way to go to
\n\this land bearing survey no. 37\/1 and 36 through western sedha of
\n\tsurvey no. 30\/40\/3 and 40\/2 and then towards eastern sedha of survey
\n\tno. 32\/2 and then towards eastern sedha of survey no. 34 belonging
\n\tto defendants and thereafter turning to western sedha of survey no.
\n\t37\/2 and then towards his land bearing survey no. 37\/1 and 36.
\n\tAccording to plaintiff, he is using said way with carts, bullocks,
\n\tagricultural instruments since time immemorial without any
\n\tinterruption, peacefully as right of easement.  The plaintiff was
\n\tusing same within the knowledge of defendant upto period of two
\n\tyears preceding date of suit.\n<\/p>\n
The
\n\tplaintiff has alleged that defendant no. 1 has put thorns on
\n\tsouthern edge of survey no. 34 belonging to defendant no. 1 and
\n\tthereby defendant no. 1 had restrained plaintiff in using suit way.
\n\tAccording to plaintiff, he has no other way to go to his land
\n\tbearing survey no. 37\/1 except suit way. Therefore, suit was filed
\n\tby plaintiff for declaration that plaintiff has right of way to go
\n\tto his land bearing survey no. 37\/1 and 36 through suit way and to
\n\trestrain defendants from interfering and disturbing plaintiff in
\n\tusing suit way by permanent injunction.\n<\/p>\n
The
\n\tdefendants have filed their written statement exh 13 and denied
\n\taverment made by plaintiff in his plaint.  According to defendants,
\n\tplaintiff has right to go to his land bearing survey no. 37\/1 and 36
\n\tthrough survey no. 32\/2 and 38, 37\/2 and plaintiff had not used suit
\n\tway.  In written statement defendants have denied fact that they had
\n\tput thorns on southern side of survey no. 34 and had encroached
\n\tplaintiff in using suit way.\n<\/p>\n
On
\n\tthe basis of aforesaid pleadings, issues have been framed by Trial
\n\tCourt vide exh 54. The plaintiff Ambalal Dahyabhai Patel has deposed
\n\ton oath vide exh 74.  The copy of record of right are also produced
\n\ton record exh 75 and 76.  The defendant no. 1 was examined before
\n\tTrial Court vide exh 78 and produced copy of judgment in said suit
\n\tvide exh 65 and map prepared by Commissioner appointed by Court in
\n\tsaid suit is also produced by exh 64.  In said map, suit way is
\n\tshown in red line.  The map exh 80 is prepared by Commissioner
\n\tappointed by Court in present suit and panchkyas is also produced
\n\tvide exh 79.  Considering copy of record of right exh 75, 76 and 77
\n\tand evidence of plaintiff and defendants as well as map produced
\n\talong with panchnama exh 79, 64 and 80.\n<\/p>\n
The
\n\tTrial Court has considered evidence on record as well as considering
\n\texh 88 evidence of Chunibhai Nathabhai and thereafter judgment and
\n\tdecree is passed in favour of plaintiff and held that plaintiff has
\n\tright to use suit way with Cart, bullock etc as mentioned in para
\n\t10(A) of plaint and defendants are restrained from interfering and
\n\tdisturbing plaintiff in using suit way with cart, bullock and plough
\n\tetc by permanent injunction.  The judgment and decree passed by
\n\tTrial Court on 5\/1\/1980. Against which, Regular civil appeal no.
\n\t27\/80 preferred by defendants, which appeal has been dismissed by
\n\tLower Appellate Court on 24\/8\/1983 while confirming judgment and
\n\tdecree passed by Trial Court.  The reasoning given by Lower
\n\tAppellate Court in para 8 to 13 are quoted as under:\n<\/p>\n
\t“8.\tIt
\n\tis to be noted that the map of the situation of the suit way and the
\n\tland situated around there is prepared in this case and is produced
\n\tat Ex. 80.  The map which was produced in the Civil Suit no. 242\/66
\n\tis produced in this case at Ex. 64.  That suit was filed by one of
\n\tthe adjoining land owner against the present defendants alleging
\n\tthat the defendants have no right to pass from the suit way but they
\n\thave to pass for going to their field from the way which parallel is
\n\tthe suit way.  Both these maps are an alogus to each other so far as
\n\tthe position of the suit way is concerned.  However, it is the say
\n\tof the defendants that the plaintiff has a right to pass from the
\n\tsuit way upto the land bearing S. No. 39 and from there the
\n\tplaintiff has to pass from the land bearing S. No. 32\/2 of the Patel
\n\tShankerbhai Kalidas and from there the plaintiff has to enter to his
\n\tfields bearing S. No. 36 and 37 by passing through the field bearing
\n\tS. No. 38 and not from the field of the defendants bearing S. No.\n<\/p>\n
\t34.  It is not the case of the defendants also in the pleadings or
\n\tin the documentary evidence that the plaintiff has other way for
\n\treaching his fields.  Under circumstances all that we have to as
\n\tcertain is as to whether the plaintiff has a right of way from the
\n\tfield bearing S. No. 34 of the defendants or has the right of way
\n\tfrom the field bearing S. No. 38 of Ishwarbhai Gelabhai who is the
\n\towner of the field bearing S. No. 38.\n<\/p>\n
\t9.\tNow
\n\tit is to be noted that P.W. Ishwarbhai Gelabhai Ex. 81 who is the
\n\towner of the land bearing S. No. 38 whown  in the maps at Ex. 80 and
\n\tEx. 64 has stated in his deposition that the plaintiff has a right
\n\tof way from the field bearing S. No. 34 of the defendants and not
\n\tfrom his field bearing S. No. 38.  Now it is to be noted that
\n\tnothing appears from the deposition of this witness Ishwarbhai
\n\tGelabhai that the plaintiff has ever passed from the field bearing
\n\tS. No. 38 of this witness for going to his field.  Of course, P.W.
\n\tIshwarbhai Gelabhai was subjected to a very lenghty cross
\n\texamination before the lower court by showing that the relations of
\n\tthis witness are not cordial with the defendants.  However, it is to
\n\tbe noted even it it can be said that the relations of this witness
\n\tare not cordial with the defendants, the same would not go to show
\n\tthat this witness is telling a false story.\n<\/p>\n
\t10.\tIn
\n\tthis connection, it would be pertinent to note that in para 6 of the
\n\twritten statement at Ex. 13 it is an ambiguously stated by the
\n\tdefendants that the plaintiff has not passed from the suit road
\n\texcept since last more than 15 to 20 years and therefore the suit of
\n\tthe plaintiff is time barred under the law of limitation.  It is to
\n\tbe noted that the learned pleader Shri Patel for the appellants has
\n\tfailed to satisfy me as to how the law of limitation will come in
\n\tthe way of the plaintiff.  On the contrary it clearly appears from
\n\tthis statements in para 6 of the written statement of the defendants
\n\tthat the plaintiff is passing from the suit road since last 15 to 20
\n\tyears.  This lands assurance to the deposition of the plaintiff
\n\tAmabalal Dahyabhai at Ex. 74 that he is passing from the suit road
\n\tand entering his fields from the way of the field of the defendants
\n\tsince very beginning.\n<\/p>\n
\t11.\tThe
\n\tlearned pleader Shri Patel for the appellant has argued before me
\n\tthat the plaintiff has cut off the “vad” and has
\n\tthereafter obtained temporary injunction. Now it is to be noted that
\n\tthere is nothing on record to substantiate that the plaintiff has
\n\tcut off “vad” in order to establish falsely his right of
\n\tway from the land of the defendants.  Had it been so, the defendants
\n\twould not have stated in their written statement para 6 as I have
\n\tstated above, that the plaintiff is passing from the suit road since
\n\tlast 15 to 20 years.  Under these circumstances, I am unable to
\n\tagree with Shri Patel for the appellants that the plaintiff has cut
\n\toff the “vad” to set a right of way falsely from the
\n\tland of the defendants.\n<\/p>\n
\t12.\tIt
\n\tis important to note that one Bai Masur who is the adjoining land
\n\towner had filed a Civil suit no. 242\/66 against the present
\n\tdefendants.  In that case it is an admitted fact that the defendants
\n\thave claimed their right of way from the suit way. It can therefore
\n\tbe said without any hesitation that if the defendants can claim
\n\ttheir right of way from the suit way it would not lie in their mouth
\n\tto say that the plaintiff has no right of way from the suit way
\n\tespecially when the land of the plaintiff is situated adjacent to
\n\tthe land of the defendants and especially when there is no evidence
\n\tto shown that the plaintiff has ever passed from the land bearing S.
\n\tNo. 38 of one Ishwarbhai Gelabhai for entering on his land. As I
\n\thave stated above, there is nothing on record to show that the
\n\tplaintiff can enter the land of his ownership from any other way
\n\texcept by passing from the field bearing S. No. 34 of the defendants
\n\tor by passing the field bearing S. No. 38.  As, I have stated above,
\n\tas there is no evidence to show that the plaintiff was passing from
\n\tthe field bearing S. No. 38 in order to reach his field and also in
\n\tview of para 6 of the written statement of the defendants at Ex. 13.
\n\t I am of the opinion that the only way for the plaintiff to enter
\n\this land is from the land of the defendants bearing S. No. 34 under
\n\tthese circumstances it can be said without any hesitation that the
\n\tplaintiff has a right of way from the land of the defendants bearing
\n\tS. No. 34 for going to his field.  The defendant No. 1 has stated in
\n\this deposition in the Civil Suit No. 242\/66 that he has a right to
\n\tpass from the field of Patel Shankerbhai Kalidas bearing S. No. 32\/2
\n\tfor going to his field.  Under these circumstances when it is the
\n\tcase of the defendants in prior Civil suit no. 242\/66 that they can
\n\treach to their field by passing through the field bearing S. No.
\n\t32\/2 of Patel Shankerbhai Kalidas the story of the defendants can
\n\tnot be relied on to say that the plaintiff has no right to pass from
\n\tthat road and the plaintiff is passing from the field bearing S. No.
\n\t32\/2 of one Patel Shankerbhai Kalidas.  Under these circumstances
\n\twhen the plaintiff is passing from the field bearing S. No. 32\/2 the
\n\tnext field for him to reach his field is the field bearing S. No. 34
\n\tof the defendants.  Under these circumstances the lower court was
\n\tjustified in not relying on the deposition of the defendant
\n\tChunibhai Nathabhai at exh. 88.\n<\/p>\n
\t13.\tThe
\n\tlearned pleader Shri Patel for the appellants has cited before me
\n\tthe case of Dwijesh Chandra V\/s. Naresh Chandra, reported in A.I.R.
\n\t1945, Calcutta 492.  It was held by the Calcutta High Court in that
\n\tcase that,<\/p>\n
\t“A
\n\tmap by itself is nothing but statements made by the maker by means
\n\tof lines and pictorial representation instead of by word of mouth as
\n\tto the state or configuration of a particular site and the objects
\n\tstanding thereon.  To admit in evidence statements made by a third
\n\tparty who is not called as a witness.  In other words, it amounts to
\n\tadmitting hearsay.  Mere proof of the map by itself is only proof of
\n\tthe fact that he map was prepared by the maker thereof.  It is no
\n\tproof of the correctness of its contents, and therefore, the mere
\n\tproof of the map under S. 11 cannot make it admissible in evidence,
\n\tas to the correctness of its contents without calling the maker
\n\tthereof.  The mere fact that a map, inadmissible in evidence in a
\n\tcase has been subsequently relayed by the commissioner in that case
\n\tcannot make it relevant and admissible in that case.”\n<\/p>\n
\tThe
\n\tlower court has considered the oral and documentary evidence on
\n\trecord to come to its conclusion regarding the right of way of the
\n\tplaintiff from the filed of the defendants. Under these
\n\tcircumstances though the ratio of the decision cited above by Shri
\n\tPatel for the appellants lays down a very sound principle of law,
\n\tthe same is not applicable to the facts and circumstances of the
\n\tcase according to my opinion.  Even if we ignore the maps produced
\n\tin this case it can be said from other oral and documentary evidence
\n\ton record
\n\tand from the pleadings of the parties that the plaintiff has
\n\testablished his right of way from the field of the defendants
\n\tbearing S. No. 34.  Under these circumstances the lower court was
\n\tjustified in decreeing the suit of the plaintiff respondent.  It is
\n\ttherefore no necessary for me to interfere with the findings arrived
\n\tat by the lower court in its impugned judgment.  I, therefore, hold
\n\tthat there are no merits in this appeal and therefore the same
\n\tdeserves to be dismissed.”\n<\/p>\n
In
\n\tview of aforesaid reasoning given by Lower Appellate Court, I have
\n\tconsidered submission made by both learned advocates vehemently and
\n\talso considering following substantial question of law
\n\tframed\/formulated by this Court at the time of admitting second
\n\tappeal on 20\/1\/1984:\n<\/p>\n
\t“(A) From
\n\tExh: 88 (Deposition of Appellant No. 1 in Civil Suit No. 242\/66) and
\n\tExh: 60 & Exh: 80 (Being map prepared by Commissioner in C.S.
\n\tNo. 242\/66 & C.S. No. 103\/75) whether courts below have erred in
\n\tinterpreting that after leaving the north west corner of Survey No.
\n\t32\/2, “Suit way” means from the eastern sedha of Survey
\n\tNo. 34 & thereafter towards western sedha of Survey No. 37\/2 &
\n\tthereafter towards suit Survey numbers?\n<\/p>\n
\t(B) Looking to
\n\tthe existence and situation of tree of “Samadi” in
\n\tSurvey No. 34 and looking to the contents of Panchakyas  Exh 79,
\n\twhether courts below have erred in holding that “suit way”
\n\tfor present suit is from Survey No. 34 as alleged by respondent?”\n<\/p>\n
I
\n\thave considered original record of Below Court which has been
\n\treceived by this Court and also considering map produced on record
\n\tbefore Trial Court, which has been produced by Court Commissioner in
\n\tpursuance to order passed by Trial Court.  The map suggests that
\n\tplaintiff is having clear suit way being old one, right of easement
\n\thas been proved and this being a shortest way to reach to
\n\tplaintiff’s land survey no. 36 and 37\/1 and 37\/2.  The land
\n\tsuggested by defendants can not be accepted because on the basis of
\n\tevidence which are on record and documents which has been produced
\n\tby respective parties and considering panchkyas as well as two
\n\treport produced by Commissioner with map, both Below Courts have
\n\trightly examined matter on the basis of evidence which can not be
\n\tconsidered that findings given by Below Court is baseless and
\n\tperverse.  There is no perversity of finding given by Below Court.
\n\tThe entire matter has been examined by Below Court on the basis of
\n\tfacts.  The substantial question of law, which has been formulated
\n\tby this Court is in fact based on fact and no real substantial
\n\tquestion of law is having general importance.\n<\/p>\n
\tThis aspect has been
\n\texamined by Apex Court in case of Gurudev Kaur V. Kaki &
\n\tOrs<\/a> reported in AIR 2006 SC 1975 where following head note
\n\tare quoted as under:\n<\/p>\n
“A.\tEven
\nprior to amendment, the consistent position has been that the Courts
\nshould not interfere with the concurrent findings of facts. After
\n1976 Amendment, the scope of S.100 has been drastically curtailed and
\nnarrowed down. The High Court would have jurisdiction of interfering
\nunder S.200, CPC only in a case where substantial question of law are
\ninvolved and those questions have been clearly formulated in the
\nmemorandum of appeal. At the time of admission of the second appeal,
\nit is the bounden duty and obligation of the High Court to formulate
\nsubstantial questions of law and then only the High Court is
\npermitted to proceed with the case to decide those questions of law.
\nThe language used in the amended section specifically incorporates
\nthe words as ‘substantial question of law’ which is indicative of the
\nlegislative intention. It must be clearly understood that the
\nlegislature never wanted second appeal to become ‘third trial on
\nfacts’ or ‘one more dice in the gamble’. The effect of the amendment
\nmainly, according to the amended section, was : (i) The High Court
\nwould be justified in admitting the second appeal only when a
\nsubstantial question of law is involved ; (ii) The substantial
\nquestion of law to precisely state such question; (iii) A duty has
\nbeen cast on the High Court to formulate substantial question of law
\nbefore hearing the appeal; (iv) Another part of the Section is that
\nthe appeal shall be heard only on that question. (Paras 68, 69)<\/p>\n
\tThe
\nrationable behind allowing a second appeal on a question of law is,
\nthat there ought to be some Tribunal having a jurisdiction that will
\nenable it to maintain, and, where necessary, re-establish, uniformity
\nthroughout the State on important legal issues, so that within the
\narea of the State, the law, insofar as it is not enacted law, should
\nbe laid down, or capable of being laid down, by one Court whose
\nrulings will be binding on all Courts, Tribunals and authorities
\nwithin the area over which it has jurisdiction. This is implicit in
\nany legal system where the higher Courts have authority to make
\nbinding decisions on question of law. (Para 67)<\/p>\n
\tIn
\njudicial hierarchy finality is absolutely important because that
\ngives certainty to the law. Even in the interest of litigants
\nthemselves it may not be unreasonable to draw a line in respect of
\nthe two different categories of litigation where procedure will say
\nat a certain stage that questions of fact have been decided by the
\nlower Courts and the matter should be allowed to rest where it lies
\nwithout any further appeal. This may be somewhat harsh to an
\nindividual litigant; but, in the larger interest of the
\nadministration of justice, this view is juristically sound and
\npragmatically wise. (Para 60)<\/p>\n
\tThe
\nfact that, in a series of cases, the Supreme Court was compelled to
\ninterfere was because the true legislative intendment and scope of
\nS.100 CPC have neither been appreciated nor applied. A class of
\nJudges while administering law honestly believe that, if they are
\nsatisfied that, in any second appeal brought before them evidence has
\nbeen grossly misappreciated either by the lower appellate Court or by
\nboth the Courts below, it is their duty to interfere, because they
\nseem to feel that a decree following upon a gross misappreciation of
\nevidence involves injustice and it is the duty of the High Court to
\nredress such injustice. It is clear that the justice has to be
\nadministered in accordance with law.”\n<\/p>\n
10.\tThe
\nscope of Second Appeal under Section 100 has been considered by Apex
\nCourt in case of Hero
\nVinoth (Minor) v. Seshammal<\/a> reported
\nin (2006)
\n5 SCC 545,
\nwherein, it is held as under
\n:\n<\/p>\n
\t“The
\nHigh Court should be satisfied that the case involved a substantial
\nquestion of law, and not a mere question of law. Also, a substantial
\nquestion of law has to be distinguished from a substantial question
\nof fact. The phrase “substantial question of law”, as
\noccurring in the amended Section 100 CPC is not defined in CPC. The
\nword substantial, as qualifying “question of law”, means\n<\/p>\n
– of having substance, essential, real, of sound worth,
\nimportant or considerable. It is to be understood as something in
\ncontradistinction with – technical, of no substance or
\nconsequence, or academic merely. A question of law having a material
\nbearing on the decision of the case (that is, a question, answer to
\nwhich affects the rights of parties to the suit) will be a
\nsubstantial question of law, if it is not covered by any specific
\nprovisions of law or settled legal principle emerging from binding
\nprecedents, and, involves a debatable legal issue. The question of
\nlaw raised will not be considered as a substantial question of law,
\nif it stands already decided by a larger bench of the High Court
\nconcerned or by the Privy Council or by the Federal Court or by the
\nSupreme Court. A substantial question of law will also arise in a
\ncontrary situation, where the legal position is clear, either on
\naccount of express provisions of law or binding precedents, ut the
\ncourt below has decided the matter, either ignoring or acting
\ncontrary to such legal principle. In the second type of cases, the
\nsubstantial question of law arises not because the law is still
\ndebatable, but because the decision rendered on a material question,
\nviolates the settled position of law. [Paras 18, 20, 21, 23 and
\n24(ii)] <\/p>\n
\tSir
\nChunilal v. Mehta<\/a> and Sons Ltd., v. Century Spg. & Mfg. Co. Ltd.,
\n1962 Supp (3) SCR 549 : AIR 1962 SC 1314, followed <\/p>\n
\tRimmalapudi
\nSubba Rao v. Noony Veeraju<\/a>, AIR 1951 Mad 969 : (1951) 2 MLJ 22 –
\n(FB), approved<\/p>\n
\tHowever,
\nit is clear that he legislature has chosen not to qualify the scope
\nof “substantial question of law” by suffixing the words
\n“of general importance” as has been done in many other
\nprovisions such as Section 109 CPC or Article 133(1)(a)<\/a> of the
\nConstitution. The substantial question of law on which a second
\nappeal shall be heard need not necessarily be a substantial question
\nof law of general importance. But a substantial question of law which
\nwas involved in the case. (Para 21)<\/p>\n
\tGuran
\nDitta v. Ram Ditta<\/a>, (1927-28) 55 IA 235 : AIR 1928 PC 172; Dy.Commr.
\nv. Rama Krishna Narain, 1954 SCR 506 : AIR 1953 SC 521, relied on<\/p>\n
\tTo
\nbe a question of law “involved in the case” there must be
\nfirst a foundation for it laid in the pleadings and the question
\nshould emerge from the substainable findings of fact arrived at y
\ncourt of facts and it must be necessary to decide that question of
\nlaw for a just and proper decision of the case. Where the facts
\nrequired for a point of law have not been pleaded, a litigant should
\nnot be allowed to raise that question as a substantial question of
\nlaw in second appeal. An entirely new point raised for the first time
\nbefore the High Court is not a question involved in the case unless
\nit goes to the root of the matter. (Paras 20 and 23)<\/p>\n
\tSantosh
\nHazari v. Purushottam Tiwari<\/a>, (2001) 3 SCC 179, relied on<\/p>\n
\tIt
\nwill, therefore, depend on the facts and circumstances of each case
\nwhether a question of law is a substantial one and involved in the
\ncase or not, the paramount overall consideration being the need for
\nstriking a judicious balance between the indispensable obligation to
\ndo justice at all stages and impelling necessity of avoiding
\nprolongation in the life of any lis. (para 23)”\n<\/p>\n
\tRecently, in Second
\n\tappeal, existence of Substantial question of law is considered to be
\n\tcondition precedent and whether non framing of question causes
\n\tprejudice to party or not, it becomes irrelevant, has been examined
\n\tby Apex Court in case of Municipality Committee, Hoshiarpur V.
\n\tPunjab State Electricity Board & Ors<\/a> reported in 2010 AIR SCW
\n\t7020. The relevant Head Note is quoted as under:\n<\/p>\n
“(A)\t\tA
\nsecond appeal cannot be decided merely on equitable grounds as it
\nlies only on a substantial question of law which is something
\ndistinct from a substantial question of fact. The Court cannot
\nentertain a second appeal unless a substantial question of law is
\ninvolved as the second appeal does not lie on the ground of erroneous
\nfindings of fact based on an appreciation of the relevant evidence.
\nThe existence of a substantial question of law is a condition
\nprecedent for entertaining the second appeal, on failure to do so the
\njudgment cannot be maintained. The existence of a substantial
\nquestion of law is a sine qua non for the exercise of jurisdiction
\nunder the provisions of Section 100, C.P.C. It is the obligation on
\nthe Court to further the clear intent of the Legislature and not to
\nfrustrate it by ignoring the same. (Paras 13, 25)<\/p>\n
\tIt
\nis not necessary for the party to show that non-framing of
\nsubstantial question of law by High Court, caused prejudice to it.
\n(Para 38)<\/p>\n
(B)\t\tThe
\nissue of perversity itself is a substantial question of law and
\ntherefore, S.103 can be held to be supplementary to S.100 and does
\nnot supplant it altogether. Reading it otherwise would render the
\nprovisions of S.100 redundant. It is only an issue that involves a
\nsubstantial question of law that can be adjudicated upon by the High
\nCourt itself of remanding the case to the Court below provided there
\nis sufficient evidence on record to adjudicate upon the said issue
\nand other conditions mentioned therein stand fulfilled. Thus the
\nobject of the section is to avoid remand and adjudicate the issue if
\nthe finding of fact recorded by the Court below is found to be
\nperverse. The Court is under an obligation to give notice to all the
\nparties concerned for adjudication of the said issue and decide the
\nsame after giving them full opportunity of hearing. (para 25)\t”\n<\/p>\n
In
\n\tview of observation made by Apex Court in above referred cases and
\n\tconsidering substantial question of law which has been formulated by
\n\tthis Court, according to my opinion, in present second appeal,
\n\tsubstantial question of law is not involved which would require
\n\tconsideration by this Court.  This two question of law, which has
\n\tbeen formulated by this Court on 20\/1\/1984 are based on facts can
\n\tnot consider to be substantial question of law.\n<\/p>\n
Learned
\n\tadvocate Mr. VC Desai is not able to point out to this Court that
\n\tfactually finding given by Below Courts are incorrect or contrary to
\n\trecord.  Therefore, contention raised by learned advocate Mr. Desai
\n\tappearing for appellant can not be accepted. Hence rejected.
\n\tAccording to my opinion, there is no substance in second appeal
\n\tpreferred by appellant original defendants and there is no
\n\tsubstantial question of law involved in appeal and no perversity of
\n\tfinding given by Below Court.  Therefore, present second appeal is
\n\taccordingly dismissed.\n<\/p>\n
\t\t\t\t\t\t\t\t(H.K.RATHOD,
\nJ)<\/p>\n
asma<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Chunibhai vs Ambalal on 15 February, 2011 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print SA\/346\/1983 16\/ 16 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 346 of 1983 ========================================================= CHUNIBHAI NATHABHAI PATEL & 4 – Appellant(s) Versus AMBALAL DAHYABHAI PATEL – Defendant(s) ========================================================= Appearance : MR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-262454","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nChunibhai vs Ambalal on 15 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chunibhai-vs-ambalal-on-15-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chunibhai vs Ambalal on 15 February, 2011 - 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