Telangana High Court
B.Venkata Ramanamma Subramanyam vs The Principal on 23 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.331 of 2022
JUDGMENT:
This Second Appeal is filed challenging the judgment and decree dated 01.04.2022 passed by the XII Additional Chief Judge, City Civil Court, Secunderabad, in A.S.No.29 of 2020, confirming the judgment and decree dated 10.08.2020 passed by the I Junior Civil Judge, City Civil Court, Secunderabad, in O.S.No.497 of 2018.
2. For the sake of convenience, the parties are referred to as they are arrayed before the trial Court.
3. Brief facts leading to filing of the present Second Appeal are that the appellant/plaintiff filed the suit vide O.S.No.497 of 2018 against the respondents/defendants for recovery of Rs.79,789/- towards arrears of pension with interest @ 12% per annum from November, 2016 till the date of filing of the suit and also future @ 12% per annum.
4. In the plaint it was averred that the plaintiff did her M.Sc. (Physics) from Pune University, Maharashtra in 1963 and she did 2 LNA, J S.A.No.331 of 2022 Ph.D in Physics from the prestigious Banaras Hindu University, Varanasi, in 1969. She joined as a Junior Lecturer in Wesley Junior College for Girls on 02.09.1973 as a permanent employee. Thereafter, she was promoted as Lecturer in 1986 and she was further promoted as Vice Principal in 1994. After completion of 26 years of service, she retired on 30.11.1999 on attaining the age of superannuation as Vice Principal from the same institution.
5. It was also averred that after retirement, the plaintiff got pension from December, 1999 to February, 2008. However, from March, 2008, the defendant No.1 - college stopped paying the pension to her. Therefore, the plaintiff got issued a legal notice dated 15.06.2009, but, there was no reply from the defendants. The plaintiff approached the Human Rights Commission on 07.07.2009. The defendants admitted their mistake before the Human Rights Commission, resumed the pension and paid the pension up to 15.03.2013. Later, on 15.03.2013, the plaintiff again issued legal notice to the defendants calling upon them to pay an amount of Rs.2,61,170/- along with interest towards arrears of pension, but, there was no response from the defendants. Hence, 3 LNA, J S.A.No.331 of 2022 the plaintiff filed a suit vide O.S.No.266 of 2016 on the file of the I Junior Civil Judge, City Civil Court, Secunderabad, and the said suit was decreed on 06.03.2017. The plaintiff filed E.P.No.24 of 2017 and on receipt of warrants for attachment of movable property, the defendants have paid Rs.3,12,625/-. Hence, the said E.P. was terminated on 13.07.2018.
6. It was further averred that during the pendency of O.S.No.266 of 2016, the defendants again started paying the monthly pension from December, 2016. The plaintiff got issued legal notice dated 22.06.2018 to the defendants to pay Rs.64,764/- towards arrears of pension from March, 2016 to November, 2016. Despite receiving the said notice, the defendants did not pay the arrears of pension. Hence, the plaintiff filed the present suit.
7. Despite serving summons, the defendants failed to appear before the trial Court, and hence, they were set ex parte.
8. In order to prove her case, the plaintiff got examined herself as P.W.1 and got marked Exs.A.1 to A.7. 4
LNA, J S.A.No.331 of 2022
9. The trial Court, after considering the entire material available on record, vide judgment and decree dated 10.08.2020, dismissed the suit observing that except Ex.A.2 and her self- serving statement, no scrap of paper was filed by the plaintiff. Aggrieved by the same, the plaintiff filed A.S.No.29 of 2020. The first Appellate Court on re-appreciation of the entire evidence and perusal of the material available on record dismissed the appeal confirming the judgment and decree passed by the trial Court, vide judgment and decree dated 01.04.2022. Hence, the present Second Appeal.
10. Heard Sri T. Sasi Kumar, the learned counsel for the appellant and Sri A. Srinivas, the learned counsel for the respondents. Perused the record.
11. The learned counsel for the appellant vehemently argued that the trial Court dismissed the suit without proper appreciation of the evidence and the first Appellate Court erred in confirming the same. He also contended that the first Appellate Court failed to appreciate the facts that the defendants have paid 5 LNA, J S.A.No.331 of 2022 only E.P. amount and not any additional amount and that no senior citizen of India should be allowed to suffer for non-receipt of the pension for which he/she is genuinely eligible. In support of the said contentions, the learned counsel for the appellant relied upon the judgment of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur, in Shri Naini Gopal v. the Union of India 1.
12. There is no dispute with regard to the ratio laid down by the High Court of Bombay in the above referred judgment. However, the facts of the said case and the facts of the present case are different and thus, the above judgment has no application to the present case.
13. A perusal of the record discloses that both the Courts below concurrently held that the plaintiff did not file any scrap of paper to prove her case. Admittedly, the burden of proof lies on the plaintiff to prove her case. Hence, this Court does not find any illegality or irregularity in the impugned order warranting interference by this Court.
1 LD-VC-CW-665 of 2020, dated 20.08.2020 6 LNA, J S.A.No.331 of 2022
14. Further, the learned counsel for appellant failed to raise any substantial question of law to be decided by this Court in this Second Appeal. In fact, all the grounds raised in this appeal are factual in nature and do not qualify as the substantial questions of law in terms of Section 100 C.P.C.
15. It is well settled principle by a catena of decisions of the Apex Court that in the Second Appeal filed under Section 100 C.P.C., this Court cannot interfere with the concurrent findings on facts arrived at by the Courts below, which are based on proper appreciation of the oral and documentary evidence on record.
16. Further, in Gurdev Kaur v. Kaki 2, the Apex Court held that the High Court sitting in Second Appeal cannot examine the evidence once again as a third trial Court and the power under Section 100 C.P.C. is very limited and it can be exercised only where a substantial question of law is raised and fell for consideration.
2 (2007) 1 Supreme Court Cases 546 7 LNA, J S.A.No.331 of 2022
17. Having considered the entire material available on record and the findings recorded by the trial Court as well as the first Appellate Court, this Court finds no ground or reason warranting interference with the said concurrent findings, under Section 100 C.P.C. Moreover, the grounds raised by the appellant are factual in nature and no question of law much less a substantial question of law arises for consideration in this Second Appeal. 18 . Hence, the Second Appeal fails and the same is accordingly dismissed at the stage of admission. No costs.
Pending miscellaneous applications, if any, shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY, J Date: 23 .01.2024 va