HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 14 Case :- SECOND APPEAL No. - 211 of 2012 Petitioner :- Maqbool Ahmad Khan Respondent :- Smt. Bhama Devi Petitioner Counsel :- Mohd. Ali,Kaushal Mani Tripathi Respondent Counsel :- Q.M. Haque Hon'ble Saeed-Uz-Zaman Siddiqi,J.
Heard learned counsel for parties and perused the records.
The instant second appeal has been preferred against the order dated 25.04.2011, passed by Ist Additional Chief Judicial Magistrate, Gonda, by which plaint in original suit no.241 of 2002 has been rejected under Order 7 Rule 11 of Code of Civil Procedure, against which civil appeal no.47 of 2011 has been rejected by the Additional District Judge, Court No.10, Gonda, vide judgment and decree dated 17.05.2012.
A very brief point is involved in this case. The plaintiff/appellant filed suit for cancellation of sale deed dated 27.0.6.1969. The suit was filed on 31.05.2002. In para 8 of the plaint the plaintiff has alleged that since the impugned sale deed was a fictitious document, the defendant did not apply for mutation of her name in Tehsil till the year 1993 and when the application was moved, as publication was issued by the revenue authorities, the plaintiff came to know about the fictitious sale deed and he filed objection in the mutation proceedings which are pending in the Court of Naib Tehsildar, Gonda. By the averments of this para of the plaint, the plaintiff/appellant has admitted to have obtained the knowledge of the sale deed in the year 1993 and the suit for cancellation should have been filed within three years. Obviously, suit is barred by time as it was filed after a lapse of 9 years in the year 2002.
Learned Trial Court has rightly rejected the plaint under Order 7 Rule 11 of Code of Civil Procedure, upon the application moved by the defendant/respondent. Learned First Appellate Court has discussed the entire factual position which is based upon the pleadings of the plaintiff, in the plaint itself and, has rightly dismissed the appeal in view of the law laid down by the Hon'ble Apex Court in Ramesh B Desai v. Vipin Vadilal Mehta & Ors. AIR 2006 (SC) 3672.
The settled law is that the period of limitation is founded on public policy, its aim being to secure the quiet of the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. The statute i.e. Limitation Act is founded on the most salutary principle of general and public policy and incorporates a principle of great benefit to the community. It has, with great propriety, been termed a statute of repose, peace and justice. The statute discourages litigation by burying in one common receptacle all the accumulations of past times which are unexplained and have not from lapse of time become inexplicable. It has been said by John Voet, with singular felicity, that controversies are limited to a fixed period of time, lest they should be immortal while men are mortal.
When the averment in the plaint are considered in the background of the principles set out in Sopan Sukhdeo Case, (2004) 3 SCC 137, the inevitable conclusion is that the suit is barred by about 9 years. The Hon'ble Apex Court in the case of Popat and Kotecha Property v. State Bank of India Staff Association, (2005) 7 SCC 510, has held as under:-
"Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So, a life-span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively fixed period of time. (See N. Balakrishanan v. M. Krishna Murthy (1998 (7) SCC 123)."
It has also been held in the above said case that the Trial Court can exercise the power at any stage of the suit, after issuing summons to the defendant, at any time before the conclusion of the trial. It has also been held that the statement in the plaint, without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11 of Code of Civil Procedure. Same proposition has been laid down earlier in Samar Singh v. Kedar Nath and Ors. AIR 1987 SC 1926.
Learned Trial Court has wisely rejected the plaint and has thus followed the direction of the Hon'ble Apex Court contained in T. Arivandandam v. T.V. Satyapal, (1977( 4 SCC 467, wherein following observations have been made:-
"The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII r. 1 1 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch. XI) is also resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi "It is dangerous to be too good."
A detailed hearing and perusal of the judgment and orders of both the Courts below made it abundantly clear that no substantial question of law is involved in this appeal.
In Gurdev Kaur & Ors. v. Kaki & Ors. 2006 (4) SBR 371, the Hon'ble Apex Court has held as under:-
?The Privy Council, in Luchman v. Puna [(1889) 16 Calcutta 753 (P.C.)], observed that a second appeal can lie only on one or the other grounds specified in the present section.
The Privy Council, in another case Pratap Chunder v. Mohandranath [(1890) ILR 17 Calcutta 291 (P.C.)], the limitation as to the power of the court imposed by sections 100 and 101 in a second appeal ought to be attended to, and an appellant ought not to be allowed to question the finding of the first appellate court upon a matter of fact.
In Durga Chowdharani v. Jawahar Singh (1891) 18 Cal 23 (PC), the Privy Council held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may seem to be. The clear declaration of law was made in the said judgment as early as in 1891. This judgment was followed in the case of Ramratan Shukul v. Mussumat Nandu (1892) 19 Cal 249 (252) (PC) and many others. The Court observed :
"It has now been conclusively settled that the third court...cannot entertain an appeal upon question as to the soundness of findings of fact by the second court, if there is evidence to be considered, the decision of the second court, however unsatisfactory it might be if examined, must stand final."
In the case of Ram Gopal v. Shakshaton [(1893) ILR 20 Calcutta 93 (P.C.)], the Court emphasized that a court of second appeal is not competent to entertain questions as to the soundness of a finding of facts by the courts below.
The same principle has been reiterated in Rudr Prasad v. Baij Nath [(1893) ILR 15 Allahabad 367]. The Court observed that a judge to whom a memorandum of second appeal is presented for admission is entitled to consider whether any of the grounds specified in this section exist and apply to the case, and if they do not, to reject the appeal summarily.
Similarly, before amendment in 1976, this Court also had an occasion to examine the scope of Section 100 C.P.C.. In Deity Pattabhiramaswamy v. S. Hanymayya and Others [AIR 1959 SC 57], the High Court of Madras set aside the findings of the District Judge, Guntur, while deciding the second appeal. This Court observed that notwithstanding the clear and authoritative pronouncement of the Privy Council on the limits and the scope of the High Court's jurisdiction under section 100, Civil Procedure Code, "some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under Section 100, Civil Procedure Code. We have, therefore, no alternative but to set aside the judgment of the High Court which had no jurisdiction to interfere in second appeal with the findings of fact arrived at by the first appellate Court based upon an appreciation of the relevant evidence.
In M. Ramappa v. M. Bojjappa [(1963) SCR 673], the Andhra Pradesh High Court interfered with the finding recorded by the Appellate Court which, in turn, had itself reversed the Trial Court's finding on the same question of fact. While setting aside the decree of the second Appellate Court, this Court observed :
"It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact, but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid."
It may be pertinent to mention that as early as in 1890 the Judicial Committee of the Privy Council stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add, or enlarge, the grounds specified in Section 100 of the Code of Civil Procedure.?
The findings reached by the First Appellate Court cannot be interfered with, in second appeal, as no substantial question of law would have flowed out of such a finding. As Lord Hastings observed that "The facility of appeal is founded on a most laudable principle of securing, by double and treble checks, the proper decision of all suits, but the utopian idea, in its attempt to prevent individual injury from a wrong decision, has been productive of general injustice by withholding redress, and general inconvenience, by perpetuating litigation".
In Sir Chunnilal V. Mehta & & Sons Ltd. Vs. Century Spinning and Manufacturing Co. Ltd., reported in A.I.R. 1962 S.C., 1314, the Hon'ble Apex Court for the purposes of determining the issue has held :
"The proper test for determining whether a question of law raises in the case is substantial, would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties."
Further in Rajeshwari Vs. Puran Indoria, reported in (2005) 7 S.C.C., 60, it was held :
"The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a sine-quanon for the exercise of jurisdiction under the provisions of Section 100 C.P.C. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence."
In Smt. Bibhabati Devi Vs. Ramendra Narayan Roy & Ors., reported in A.I.R. 1947 PC 19, it has been held :
"the Privy Council has provided the guidelines as in what cases the second appeal can be entertained, explaining the provisions existing prior to the amendment of 1976, observing .... that miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happen not in the proper sense of the word a judicial procedure at all. That the violation of some principles of law or procedure must be such erroneous proposition of law that if that proposition to be corrected, the finding cannot stand, or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding, is such a question of law."
In Vijay Kumar Talwar Vs. Commissioner of Income Tax, New Delhi, reported in (2011) 1 S.C.C. 673, it has been held :
"a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. It will, therefore, depend on the facts and circumstances of each case, whether a question of law is a substantial one or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
In the case of Union of India Vs. Ibrahim & Another in Civil Appeal No.1374 of 2008, decided on July 17, 2012, the Hon'ble Apex Court has held :
"There may be exception circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of Section 100 CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of courts of justice is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction. In second appeal the court frames the substantial question of law at the time of admission of the appeal and the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions or the court comes to the conclusion that the question(s) framed could not be the substantial question(s) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal."
In view of the law as discussed above, the second appeal is dismissed.
Order Date :- 16.5.2013 Ram.