{"id":69416,"date":"2007-09-17T00:00:00","date_gmt":"2007-09-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/boodireddy-chandraiah-and-ors-vs-arigela-laxmi-and-anr-on-17-september-2007"},"modified":"2019-02-27T20:32:38","modified_gmt":"2019-02-27T15:02:38","slug":"boodireddy-chandraiah-and-ors-vs-arigela-laxmi-and-anr-on-17-september-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/boodireddy-chandraiah-and-ors-vs-arigela-laxmi-and-anr-on-17-september-2007","title":{"rendered":"Boodireddy Chandraiah And Ors vs Arigela Laxmi And Anr on 17 September, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Boodireddy Chandraiah And Ors vs Arigela Laxmi And Anr on 17 September, 2007<\/div>\n
Author: . A Pasayat<\/div>\n
Bench: Dr. Arijit Pasayat, D.K. Jain<\/div>\n
           CASE NO.:\nAppeal (civil)  4306 of 2007\n\nPETITIONER:\nBoodireddy Chandraiah and Ors\n\nRESPONDENT:\nArigela Laxmi and Anr\n\nDATE OF JUDGMENT: 17\/09\/2007\n\nBENCH:\nDr. ARIJIT PASAYAT & D.K. JAIN\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
CIVIL APPEAL NO. 4306 OF 2007
\n(Arising out of SLP (C) No. 25543 of 2004)<\/p>\n
Dr. ARIJIT PASAYAT, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tThe appellants call in question legality of the judgment of
\na learned Single Judge of the Andhra Pradesh High Court
\nallowing the Second Appeal filed by the respondents in terms
\nof Section 100 of the Code of Civil Procedure, 1908 (in short
\nthe ‘CPC’).  Though many points were urged in support of the
\nappeal, primarily it was contended that the  Second Appeal
\nwas allowed without formulating any substantial question of
\nlaw which is mandatory in law.\n<\/p>\n
3.\tLearned counsel for the respondents submitted that
\nthough no question has rightly been formulated, but the basic
\nfactors have been taken into account and after considering the
\nmaterials on record the second appeal was allowed.\n<\/p>\n
4.\tAfter the amendment a second appeal can be filed only if
\na substantial question of law is involved in the case.  The
\nmemorandum of appeal must precisely state the substantial
\nquestion of law involved and the High Court is obliged to
\nsatisfy itself regarding the existence of such a question.  If
\nsatisfied, the High Court has to formulate the substantial
\nquestion of law involved in the case.  The appeal is required to
\nbe heard on the question so formulated.  However, the
\nrespondent at the time of hearing of the appeal has a right to
\nargue that the case in the court did not involve any
\nsubstantial question of law.  The proviso to the section
\nacknowledges the powers of the High Court to hear the appeal
\non a substantial point of law, though not formulated by it with
\nthe object of ensuring that no injustice is done to the litigant
\nwhere such a question was not formulated at the time of
\nadmission either by mistake or by inadvertence.\n<\/p>\n
5.\tIt has been noted time and again that without insisting
\nfor the statement of such a substantial question of law in the
\nmemorandum of appeal and formulating the same at the time
\nof admission, the High Courts have been issuing notices and
\ngenerally deciding the second appeals without adhering to the
\nprocedure prescribed under Section 100 of the CPC.  It has
\nfurther been found in a number of cases that no efforts are
\nmade to distinguish between a question of law and a
\nsubstantial question of law.  In exercise of the powers under
\nthis section in several cases, the findings of fact of the first
\nappellate court are found to have been disturbed.  It has to be
\nkept in mind that the right of appeal  is neither a natural nor
\nan inherent right attached to the litigation.  Being a
\nsubstantive statutory right, it has to be regulated in
\naccordance with law in force at the relevant time.  The
\nconditions mentioned in the section must be strictly fulfilled
\nbefore a second appeal can be maintained and no court has
\nthe power to add or to enlarge those grounds.  The second
\nappeal cannot be decided on merely equitable grounds.  The
\nconcurrent findings of facts will not be disturbed by the High
\nCourt in exercise of the powers under this section. Further, a
\nsubstantial question of law has to be distinguished from a
\nsubstantial question of fact.  This Court in Sir Chunilal V.
\nMehta and Sons Ltd. v. Century  Spg. & Mfg. Co. Ltd. (AIR<\/a>
\n1962 SC 1314) held that :\n<\/p>\n
\t“The proper test for determining whether a
\nquestion of law raised in the case is substantial
\nwould, in our opinion, be whether it is of general
\npublic importance or whether it directly and
\nsubstantially affects the rights of the parties and
\nif so whether it is either an open question in the
\nsense that it is not finally settled by this Court or
\nby the Privy Council or by the Federal Court or is
\nnot free from difficulty or calls for discussion of
\nalternative views.  If the question is settled by the
\nhighest court or the general principles to be
\napplied in determining the question are well
\nsettled and there is a mere question of applying
\nthose principles or that the plea raised is
\npalpably absurd the question would not be a
\nsubstantial question of law.”\n<\/p>\n
6.\tIt is not within the domain of the High Court to
\ninvestigate the grounds on which the findings were arrived at,
\nby the last court of fact, being the first appellate court.  It is
\ntrue that the lower appellate court should not ordinarily reject
\nwitnesses accepted by the trial court in respect of credibility
\nbut even where it has rejected the witnesses accepted by the
\ntrial court, the same is no ground for interference in second
\nappeal when it is found that the appellate court has given
\nsatisfactory reasons for doing so.  In a case where from a given
\nset of circumstances two inferences of fact are possible, one
\ndrawn by the lower appellate court will not be interfered by the
\nHigh Court in second appeal.  Adopting any other approach is
\nnot permissible.  The High Court will, however, interfere where
\nit is found that the conclusions drawn by the lower appellate
\ncourt were erroneous being contrary to the mandatory
\nprovisions of law applicable or its settled position on the basis
\nof pronouncements made by the Apex Court, or was based
\nupon inadmissible evidence or arrived at by ignoring material
\nevidence.\n<\/p>\n
7.\tThe question of law raised will not be considered as a
\nsubstantial question of law, if it stands already decided by a
\nlarger Bench of the High Court concerned or by the Privy
\nCouncil or by the Federal Court or by the Supreme Court.
\nWhere the facts required for a point of law have not been
\npleaded, a litigant should not be allowed to raise that question
\nas a substantial question of law in second appeal.  Mere
\nappreciation of facts, the documentary evidence or the
\nmeaning of entries and the contents of the documents cannot
\nbe held to be raising a substantial question of law.  But where
\nit is found that the first appellate court has assumed
\njurisdiction which did not vest in it, the same can be
\nadjudicated in the second appeal, treating it as a substantial
\nquestion of law.  Where the first appellate court is shown to
\nhave exercised its discretion in a judicial manner, it cannot be
\ntermed to be an error either of law or of procedure requiring
\ninterference in second appeal.  This Court in Reserve Bank of
\nIndia v. Ramkrishna Govind Morey<\/a> (1976 (1) SCC 803) held
\nthat whether the trial court should not have exercised its
\njurisdiction differently is not a question of law justifying
\ninterference.([See: Kondiba Dogadu Kadam v. Savitribai Sopan
\nGujar and Others<\/a> (1999(3) SCC 722)].\n<\/p>\n
8.\tThe phrase “substantial question of law”, as occurring in
\nthe amended Section 100 of the CPC is not defined in the
\nCode.  The word substantial, as qualifying “question of law”,
\nmeans  of having substance, essential, real, of sound worth,
\nimportant or considerable.  It is to be understood as
\nsomething in contradistinction with  technical, of no
\nsubstance or consequence, or academic merely.  However, it is
\nclear that the legislature has chosen not to qualify the scope of
\n“substantial question of law” by suffixing the words “of general
\nimportance” as has been done in many other provisions such
\nas Section 109 of the CPC or Article 133(1)(a) of the
\nConstitution.  The substantial question of law on which a
\nsecond appeal shall be heard need not necessarily be a
\nsubstantial question of law of general importance.  In Guran
\nDitta v. T. Ram Ditta (AIR 1928 PC 172) , the phrase
\n‘substantial question of law’ as it was employed in the last
\nclause of the then existing Section 100 CPC (since omitted by
\nthe Amendment Act, 1973) came up for consideration and
\ntheir Lordships held that it did not mean a substantial
\nquestion of general importance but a substantial question of
\nlaw which was involved in the case. In Sri Chunilal’s case
\n(supra),  the Constitution Bench expressed agreement with the
\nfollowing view taken by a full Bench of the Madras High Court
\nin Rimmalapudi Subba Rao v. Noony Veeraju (AIR 1951 Mad.\n<\/p>\n
969):\n<\/p>\n
“When a question of law is fairly arguable, where
\nthere is room for difference of opinion on it or
\nwhere the Court thought it necessary to deal with
\nthat question at some length and discuss
\nalternative views, then the question would be a
\nsubstantial question of law.  On the other hand if
\nthe question was practically covered by the
\ndecision of the highest court or if the general
\nprinciples to be applied in determining the
\nquestion are well settled and the only question
\nwas of applying those principles to be particular
\nfacts of the case it would not be a substantial
\nquestion of law.”\n<\/p>\n
9.\tThis Court laid down the following test as proper test, for
\ndetermining whether a question of law raised in the case is
\nsubstantial:\n<\/p>\n
\t“The proper test for determining whether a
\nquestion of law raised in the case is substantial
\nwould, in our opinion, be whether it is of general
\npublic importance or whether it directly and
\nsubstantially affects the rights of the parties and
\nif so whether it is either an open question in the
\nsense that it is not finally settled by this Court or
\nby the Privy Council or by the Federal Court or is
\nnot free from difficulty or calls for discussion of
\nalternative views.  If the question is settled by the
\nhighest court or the general principles to be
\napplied in determining the question are well
\nsettled and there is a mere question of applying
\nthose principles or that the plea raised is
\npalpably absurd the question would not be a
\nsubstantial question of law.”\n<\/p>\n
10.\tIn Dy. Commnr. Hardoi v. Rama Krishna Narain (AIR<\/a>
\n1953 SC 521) also it was held that a question of law of
\nimportance to the parties was a substantial question of law
\nentitling the appellant to a certificate under (the then) Section
\n100 of the CPC.\n<\/p>\n
11.\t  To be “substantial” a question of law must be debatable,
\nnot previously settled by law of the land or a binding
\nprecedent, and must have a material bearing on the decision
\nof the case, if answered either way, insofar as the rights of the
\nparties before it are concerned. To be a question of law
\n“involving in the case” there must be first a foundation for it
\nlaid in the pleadings and the question should emerge from the
\nsustainable findings of fact arrived at by court of facts and it
\nmust be necessary to decide that question of law for a just and
\nproper decision of the case.  An entirely new point raised for
\nthe first time before the High Court is not a question involved
\nin the case unless it goes to the root of the matter.  It will,
\ntherefore, depend on the facts and circumstance of each case
\nwhether a question of law is a substantial one and involved in
\nthe case, or not; the paramount overall consideration being
\nthe need for striking a judicious balance between the
\nindispensable obligation to do justice at all stages and
\nimpelling necessity of avoiding prolongation in the life of any
\nlis. (See :Santosh Hazari v. Purushottam Tiwari<\/a> (deceased) by
\nLrs. [(2001) 3 SCC 179].\n<\/p>\n
12.\tThe principles relating to Section 100 CPC, relevant for
\nthis case, may be summerised thus:-\n<\/p>\n
(i)\tAn inference of fact from the recitals or contents of
\na document is a question of fact. But the legal effect
\nof the terms of a document is a question of law.
\nConstruction of a document involving the
\napplication of any principle of law, is also a question
\nof law. Therefore, when there is misconstruction of a
\ndocument or wrong application of a principle of law
\nin construing a document, it gives rise to a question
\nof law.\n<\/p>\n
(ii)\tThe High Court should be satisfied that the case
\ninvolves a substantial question of law, and not a
\nmere question of law. A question of law having a
\nmaterial bearing on  the decision of the case (that is,
\na question, answer to which affects the rights of
\nparties to the suit) will be a substantial question of
\nlaw, if it is not covered by any specific provisions of
\nlaw or settled legal principle emerging from binding
\nprecedents, and, involves a debatable legal issue. A
\nsubstantial question of law will also arise in a
\ncontrary situation, where the legal position is clear,
\neither on account of express provisions of law or
\nbinding precedents, but the court below has decided
\nthe matter, either ignoring or acting contrary to
\nsuch legal principle. In the second type of cases, the
\nsubstantial question of law arises not because the
\nlaw is still debatable, but because the decision
\nrendered on a material question, violates the settled
\nposition of law.\n<\/p>\n
13.\tThe general rule is that High Court will not interfere with
\nconcurrent findings of the Courts below. But it is not an
\nabsolute rule. Some of the well recognized exceptions are
\nwhere (i) the courts below have ignored  material evidence or
\nacted on no evidence; (ii) the courts have drawn wrong
\ninferences from proved facts by applying the law erroneously;
\nor (iii) the courts have wrongly cast the burden of proof. When
\nwe refer to ‘decision based on no evidence’, it not only refers to
\ncases where there is a total dearth of evidence, but also refers
\nto any case, where the evidence, taken as a whole, is not
\nreasonably capable of supporting the finding.\n<\/p>\n
14.\tIn spite of several decisions of this Court highlighting the
\nrequirement of formulating the substantial question of law, if
\nany, before adjudicating the Second Appeal, time and again, it
\nhas come to our notice that the mandatory requirement is not
\nbeing followed.\n<\/p>\n
15.\tThe impugned order is set aside and the matter is
\nremitted to the High Court to formulate substantial question of
\nlaw, if any, and thereafter decide the appeal.  Needless to say if
\nthere is no substantial question of law involved, the appeal
\nhas to be dismissed.  We make it clear that we have expressed
\nany view as to whether any substantial question of law is
\ninvolved.\n<\/p>\n
16.\tThe appeal is allowed.  There shall be no order as to
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Boodireddy Chandraiah And Ors vs Arigela Laxmi And Anr on 17 September, 2007 Author: . A Pasayat Bench: Dr. Arijit Pasayat, D.K. Jain CASE NO.: Appeal (civil) 4306 of 2007 PETITIONER: Boodireddy Chandraiah and Ors RESPONDENT: Arigela Laxmi and Anr DATE OF JUDGMENT: 17\/09\/2007 BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN […]<\/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":[30],"tags":[],"class_list":["post-69416","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBoodireddy Chandraiah And Ors vs Arigela Laxmi And Anr on 17 September, 2007 - 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\/boodireddy-chandraiah-and-ors-vs-arigela-laxmi-and-anr-on-17-september-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Boodireddy Chandraiah And Ors vs Arigela Laxmi And Anr on 17 September, 2007 - 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