KONDIBA DAGADU KADAMversusSAVITRIBAL SOPAN GUJAR AND ORS.

A                         KONDIBA DAGADU KADAM                                         /

                                           v.
                     SAVITRIBAl SOPAN GUJAR AND ORS.

                                  APRIL 16, 1999

B                  [S. SAGHIR AHMAD AND R.P. SETHI, JJ.]


          Code of Civil Procedure, 1908 :

         S.100 (as amended by Amending Act, No. 10411976-Second appeal-
C No substantial question of/aw involved-Interference by High Court-Validity
    of-Held, High Court not justified in its interference-High Court must satisfy
    itself that a substantial question of law exist before hearing an appeal-
    Concurrent finding offact howsoever erroneous 'cannot be disturbed by High
    Court.

D         S. JOO (as amended by Amending Act. No. 10411976)-Scope and
    object of                                                                          .
          S. I OD-Second appeal-Substantial question of /aw-Already decided
    by· larger Bench or superior courts-Its wrong application ·on facts of a
E   case-Cannot be termed to be substantial question of law.

          Appellant filed a suit for specific performance of sale agreement against
    respondent. The suit was dismissed by trial court. On appeal, the Lower
    Appellate Court granted relief in favour of appellant relying upon the evidence
    of two attesting witnesses who have categorically deposed that the respondent
F   had executed sale agreement by putting his thumb impression. However,
    High Court by reappreciating the evidence, reversed the fmdings of Appellate
    Court. High Court found that there was no reference in the plaint regarding
    witness 'R' and the evidence of another witness 'S' was not reliable. Aggrieved,
    appellant has filed the present appeal.
G           Allowing the appeal, and setting aside the order of High Court, this
    Court

          HELD: 1.1. High Court was not justified in its interference under S.
    100 Civil Procedure Code, 1908 as no substantial question of law was
H   involved in the second appeal. (732-G-H)
                                          728
               KONDIBA DAGADU KADAM v. S.S. GUJAR                         729
       1.2. After the amendment of S. 100 (amending Act No. 104 of 1976)         A
of the Code, a second appeal can be filed only ifa substantial question oflaw
is involved in the case. The memorandum of appeal must precisely state the
substantial question of law involved and the High Court is obliged to satisfy
itself regarding the existence of such question. If satisfied, the High Court
has to formulate the substantial question of law involved in the case. The       B
appeal is required to be heard on the question so formulated. However, the
respondent at the time of hearing of the appeal has a right to argue that the
case in the court did not involve any substantial question of law. The proviso
to the Section acknowledges the powers of the High Court to hear the appeal
on a substantial point of law, though not formulated by it with the object of
ensuring that no injustice is done to the litigant where such question was       C
not formulated at the time of admission either by mistake or by inadvertence.
                              .                           [730-G-H; 731-A-BJ

       1.3. A 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 S. 100 of the Code. The D
substantial question of law has to be distinguished from a substantial question
of fact. It is not within the domain of the High Court to investigate the
grounds on which the findings were arrived at, by the last court of fact, being
the first appellate court. It is true that the lower appellate court should ~ot
ordinarily reject witnesses accepted by the trial court in respect of credibility E
but eve!l where it has rejected the witnesses accepted by the trial court, the
same is no ground for interference in second appeal when it is found that
the appellate court has given satisfactory reasons for doing so. The High
Court cannot substitute its opinion for the opinion of the first appellate court
unless it is found that the conclusions drawn by the lower appellate court
were erroneous being contrary to the mandatory provisions of law applicable F
or its settled position on the basis of pronouncements made by the apex
Court, or was based upon inadmissible evidence or arrived at without evidence.
                                                           [731-E; 732-A-B-CJ

      Sir Chunilal v. Mehta and Sons Ltd. v. Century Spinning and G
Manufacturing Co. Ltd., AIR (1962) SC 1314 and Reserve Bank of India &
Anr. v. Ramakrishna Govind Morey, AIR (1976) SC 830, relied on.

     2. lf the question of law termed as substantial question stands already
decided by a larger bench of the High Court concerned or by the Privy
Council or by the Federal Court or by the Supreme Court, its merely wrong        H
    730                        SUPREME COURT REPORTS                      (1999] 2 s. C.R.

A   application on facts of the case would not be termed to be a substantial
    question of law. (732-D] -

          3. The Amending Act was introduced with the intention to minimise the
    litigation, to give the litigant fair trial in accordance with the accepted
    principles of natural justice, to expedite the disposal of civil suits and
B   proceedings so that justice is not delayed, to avoid complicated procedure, to
    ensure fair deal to the poor sections of the community and restrict the
    second appeals only on such questions which are certified by the Courts to
    be substantial question of law. (732-E-F]

C           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2329 of
    1999.

          From the Judgment and Order dated 19.11.97 of the Bombay High Court
    in S.A. No. 63 of 1988.

            S.D. Singh and Vishwajit Singh for the Appellant.
D
            S.V. Deshpande and Pramit Saxena for the Respondents.

            The Judgment of the Court was delivered by

            SETHI, J. Leave granted.
E
            Despite amendment by the Amending Act No. l 04 of 1976, Section l 00
    of the Code of Civil Procedure appears to have been liberally construed and
    generously applied by some Judges of various High Court with the result that
    the drastic changes made in the law and the object behind that appears to
    have been frustrated. The amending Act was introduced on the basis of
F   various Law Commission Reports recommending for making appropriate
    provisions in the Code of Civil Procedure which were intended to minimise
    the litigation, to give the litigant fair trial in accordance with accepted principles
    of natural justice, to expedite the disposal of civil suits and proceedings so
    that justice is not delayed, to avoid complicated procedure, to ensure fair deal
G   to the poor sections of the community and restrict the second appeals only
    on such question which are certified by the Courts to be substantial question
    of law:

          After the amendment a second appeal can be filed only if a substantial
    question of law is involved in the case. The memorandum of appeal must
H   precisely state the substantial question of law involved and the High Court
         KONDIBA DAGADU KADAM v. S.S.GUJAR [SETHI, J.]                       731
is obliged to satisfy itselfregarding the existence of such question. If satisfied, A
the High Court has to fonnulate the substantial question of law involved in
the case. The appeal is required to be heard on the question so formulated.
However, the respondent at tlfe time of the hearing of the appeal has a right
to argue that the case in the court did not involve any substantial question
of law. The proviso to the Section acknowledges the powers of the High
Court to hear the appeal on a substantial point of law, though not fonnulated B
by it with the object of ensuring that no injustice is done to the litigant where
such question was not fonnulated at the time of admission either by mistake
or by inadvertence.

       It has been noticed time and again that without insisting for the statement C
of such substantial question of law in the memorandum of appeal and
fonnulatin& the same at the time of admission, the High Courts have been
issuing notites and generally deciding the second appeals without adhering
to the procedure prescribed under Section 100, Code of Civil Procedure. It has
further been found in a number of cases that no efforts are made to distinguish
between a question of law and a substantial question of law. In exercise of D
the powers under this Section the findings of fact of the l st appellate court
are found to have been disturbed. It has to be kept in mind that the right of
appeal is neither a natural nor an inherent right attached to the litigation.
Being a substantive statutory right, it has to be regulated in accordance with
law in force at the relevant time. The conditions mentioned in the Section E
must be strictly fulfilled before a second appeal can be maintained and no
court has the power to add to or enlarge those grounds. 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 substantial question of law has to be
distinguished from a substantial question of fact. This Court in Sir Chunilal F
V. Mehta and Sons Ltd v. Century Spinning and Manufactuing Co. Ltd., AIR
(1962) SC 1314 held that:-

            "The proper test for detennining whether a question of law raised
        in the case is substantial would, in our opinion, be whether it is of G
       general public importance or whether it directly and substantially
       affects the rights, of the parties and if so whether it is either an open
       question in the sense that it is not finally settled by this Court or by
       the Privy Council or by the Federal Court or is not free from difficulty
       or calls for discussion of alternative views. If the question is settled
       by the highest Court or the general principles to be applied in H
    732                      SUPREME COURT REPORTS                     [1999] 2 S.C.R.

A           detennining the question are we)\ settled and there is a mere question
            of applying those principles or that the plea raised is palpably absurbed
            the question would not be a substantial question of law."

           Itis not within the domain of the High Court to investigate the grounds
·   on whi¢'h findings were arrived at, by the last court of fact, being the first
B·' appellate cC\llrt. It fS true that the lower appellate court should not ordinarily
    reject witne~ses accepted by the trial court in respect of credibility but even
    where it has rejected the witnesses accepted by the trial court, the same is
    no ground for interference in second appeal when it is found that the appellate
    court had given satisfactory reasons for doing so. In a case where from a
C given set of circumstances two· inferences are possible, one drawn by the
    lower appellate court is binding on the High Court in second appeal. Adopting
    any other approach is not pennissible. The High Court cannot substitute its
    opinion for the opinion of the first appellate court unless it is found that the
    conclusions drawn by the lower appellate court were erroneous being contrary
    to the mandatory provisions of law applicable or its settled position on the
D basis of pronouncements made by the apex Court, or was based upon in
    inadmissible evidence or arrived at without evidence.

          If the question of law termed as substantial question stands already
    decided by a larger bench of the High Court concerned or by the Privy
E   Council or by the Federal Court or by the Supreme Court, its merely wrong
    application on facts of the case would not be tenned to be a substantial
    question of law. Where a point of law has not been pleaded or is found to
    be arising between the parties in the absence of any factual fonnat, a litigant
    should not be allowed to raise that question as substantial question of law
    in second appeal. The mere appreciation of the facts, the documentary evidence
F   or the meaning of entries and the contents of the document cannot be held
    to be raising a substantial question of law. But where it is found that the first
    appellate court has assumed jurisdiction which did not vest in it, the same
    can be adjudicated in the second appeal, treating it as substantial question
    of law. Where the first appellate court is shown to have exercised its discretion
G   in a judicial manner, it cannot be termed to be an error either of law or
    procedure requiring interference in second appeal. This Court in Reserve
    Bank of India & Anr. v. Ramakrishan Govind Morey, AIR (l 976) SC 830 held
    that whether trial court should not have exercised its jurisdiction differently
    is not a question of law justifying interference.

H          The instant case is one of such cases where the provisions of Section
         KONDIBA DAGADU KADAM v.S.S.GUJAR [SETHI, J.)                       733
100 of the Code of Civil Procedure have wrongly been applied and the ·A
findings of fact of the first appellate court disturbed without adhering to the
principles of and the limitations imposed by Section 100 ofC.P.C. The appellant
herein had filed a suit for specific performance against the respondent with
regard to an agreement for sale dated 12.5.1972 which was dismissed by the
trial court by its order dated 25.6.1985. The lower appellate court by its order
dated 9 .1.1987 allowed the appeal and granted the relief of specific performance B
in favour of the plaintiff. The appellate court found on facts deceased Sopana
had executed document Ex.p-68 which was proved by the witnesses in whose
presence the deceased had put his thumb impression. Annexure R-1 furnished
by the respondent itself shows that PW-Babu had categorically stated "There
was an agreement to reconvey the suit lands between deceased Sopan and C
plaintiff in the year 1966 in my presence. I signed that agreement. Signature
now shown to me is mine. Agreement was executed by deceased Sopan in
favour of plaintiff. Deceased used to make thumb impression. He made thumb
impression in my presence. Deceased Sopan wrote in this document that he
will return the suit lands to plaintiff." The findings of the first appellate court
cannot to termed to be either perverse or based upon no evidence. Such D
findings are based upon appreciation of evidence and being the finding of
the last court on facts were binding upon the parties. The learned single
Judge of the High Court was, therefore, not justified to hold that there was
no independent proof with regard to the thumb impression of Sopan. The fact
that the learned single Judge of the High Court has only appreciated the E
evidence is evident from his findings, "The lower appellate court has only
relied upon the evidence of two attesting witnesses viz. Sopan Shankar Nadha
and Police Patil Ramu Laxman Shinde. In this context, it is very vital to note
that Ramu Laxman Shinde, the Police Patil, in his evidence, has stated that
he was present at the time of execution of the said agreement of repurchase
dated 12the May, 1972. However, it is very strange that in the plaint there is F
no reference whatsoever with regard to the said Ramu Laxman Shinde, the
Police Patil, being prese:nt at time of execution of the said agreement of
repurchase dated 12th May, 1972. In view thereof, I am not inclined to accept
the evidence of said Ramu Laxman Shinde, the Police Patil.
                                                                                   G
        The evidence of Sopan Shankar Nadhe is also not reliable in as much
as it is stated that as far as an agreement of 1966 is concerned, that the thumb
impression was that of Sopan and in the same breath he also states that he
is not aware whether it was Sopan's thumb impression."

      No question of law much less any substantial question, was involved          H
                                ··,


       734                     SUPREME COURT REPORTS                    (1999] 2 S.C.R.

,. A   in the second appeal requiring interference by the High Court in exercise of
       its jurisdiction under Section 100 of Code of Civil Procedure. The order of the
       learned single Judge, impugned in this appeal being against the settled norms
       and contrary to the mandate to Section 100 CPC, therefore, cannot be sustained.

             Under the circumstances, the appeal is allowed by setting aside the
       impugned judgment of the High Court and restoring the judgment of the first
       appellate court with costs through out.

       S.V.K.l.                                                      Appeal allowed.