Chattisgarh High Court

Smt. Laxmi Devi vs Purshottam Chandrakar on 22 January, 2025

                                   1




   Digitally
   signed by
   REKHA
   SINGH

                                                2025:CGHC:4122



                                                            NAFR

           HIGH COURT OF CHHATTISGARH AT BILASPUR

                        MCC No. 1167 of 2024

1 - Smt. Laxmi Devi W/o Shri Girdhari Lal Sharma Aged About 59 Years
R/o Ramsagarpara Raipur (Grain Merchant), Tehisl And District - Raipur
Present Address M/s Shri Rice Mill Kurud Proprietor Girdhari Lal Sharma
Kurud Tehsil Kurud District - Dhamtari Chhattisgarh

2 - Girdhari Lal Sharma (Died Throgh Lrs) As Per Honble Court Order
Dated 25-03-2022

2.1 - Vijay Sharma S/o Late Girdhari Lal Sharma Aged About 50 Years
R/o Ramsagar Para Raipur Tehsil And District - Raipur Chhattisgarh

2.2 - Ajay Sharma S/o Late Girdhari Lal Sharma Aged About 37 Years
R/o Ramsagar Para Raipur Tehsil And District - Raipur Chhattisgarh

2.3 - Ashish Sharma S/o Late Girdhari Lal Sharma Aged About 31 Years
R/o Ramsagar Para Raipur Tehsil And District - Raipur Chhattisgarh
                                             ... Applicants/appellants

                                versus

1 - Purshottam Chandrakar S/o Shri Ramlal Chandrakar Aged About 32
Years Caste Kurmi Occupation Agriculture R/o Village Kurud Ward No. 1
Tehsil Kurud District - Dhamtari (Chhattisgarh) (Plaintiff)

2 - Purshottam S/o Shri Radheshyam Chandrakar Aged About 45 Years
Cate Kurmi Occupation Business R/o Radheshyam Rice Mill Sandha
Road Kurud District - Dhamtari (Chhattisgarh) District - Dhamtari
Chhattisgarh (Def. No. 1to 3

3 - State Of Chhattisgarh Through Collector Dhamtari

4 - C.S.E.B. Through The Assistant Engineer / Junior Engineer C.S.E.
Board Kurud Dhamtari Chhattisgarh
                                                      ---- Respondents

For Applicants/Appellants/ : Mr. B.P. Sharma, Advocate along with

Defendants No.4 &5 Mr. Manay Nath Thakur, Advocate For State/respondent No.3 : Mr. Dashrath Prajapati, PL For Non-applicant No.1/ : Mr. Anurag Dayal Shrivastava, Advocate respondent No.1/plaintiff along with Mr. Goutam Khetrapal, Advocate For Respondent No.4 : Mr. Mayank Chandrakar, Advocate

Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 22.01.2025

1. The applicants have filed this application under Order 45 Rules 2 &

3 of the CPC seeking therein certificate as to value/fitness to prefer

an appeal before the Supreme Court in the judgment and decree

passed in First Appeal No.53 of 2010 dated 16.10.2024.

2. Mr. Sharma, the learned counsel appearing for the applicants

would argue that the first appeal was preferred by the applicants

against the judgment and decree dated 08.04.2010 passed by the

learned Additional District Judge (Fast Track Court),

Dhamtari(C.G.) in Civil Suit No.24-A/2007. He would contend that

the appeal preferred by the applicants was dismissed on two

grounds; the applicants failed to take leave of the Court according

to provisions of Order 22 Rule 10 of CPC and they had no right to

take defences, which were available to defendant No.1. It is stated

that as the applicants were impleaded pursuant to an application

moved under Order 1 Rule 10 of CPC, which was moved by the

plaintiff/Non-applicant No.1 before the Trial Court, therefore, there

was no requirement for the applicants/defendants No.4 & 5 to take

leave of the Court according to the provisions of Order 22 Rule 10

of CPC. It is also contended that the procedural laws are

handmaid of justice and they cannot overreach the substantive

justice. It is argued by Mr. Sharma that the issue involves a

substantial question of law of general importance, therefore, the

application may be allowed and a certificate of fitness may be

granted. It is also contended that as the applicants were parties to

the civil suit, they had the right to file a first appeal without

obtaining leave of the Court and they were competent to take all

defences available to defendant No.1, who sold the suit property to

defendants No.4 & 5. He would lastly submit that the application

may be allowed.

3. On the other hand, Mr. Shrivastava, the learned counsel appearing

for respondent No.1 would oppose the submissions made by Mr.

Sharma and would raise a technical objection that the application

has not been filed according to the provisions of Order 45 Rules 2

& 3 of CPC. He would further submit that the applicants have not

proposed substantial question(s) of law, therefore, the certificate

as prayed cannot be granted to the applicants. He would also

submit that the applicants argued the matter at length at the time

of hearing of the first appeal and all the issues were considered

and decided by this Court and this Court should not hear the

application under Order 45 Rules 2 & 3 of the CPC as an appeal.

He would argue that the applicants have not pleaded the grounds

of appeal in the application and they have not framed substantial

question(s) of law of general importance.

4. Mr. Prajapati, the learned Panel Lawyer appearing for the State

and Mr. Chandrakar, learned counsel appearing for respondent

No.3 would support the contentions made by Mr. Shrivastava.

They would submit that the application deserves to be dismissed.

5. Heard learned counsel appearing for the parties and perused the

documents placed on the record.

6. Order 45 Rules 1, 2 & 3 of the CPC are reproduced herein below

for ready reference:-

"1. "Decree" defined -In this Order, unless there is something repugnant in the subject or context, the expression "decree" shall include a final Order.

2. Application to Court whose decree complained of-[(1)] Whoever desires to appeal the Supreme Court shall apply by petition to the Court whose decree is complained of.

[(2) Every petition under sub-rule (1) shall be heard as expeditiously as possible and endeavour shall be made to conclude the disposal of the petition within sixty days from the date on which the petition is presented to the Court under sub-rule (1).]

3. Certificate as to value or fitness-[(1) Every petition shall state the grounds of appeal and pray for a certificate-

(i) that the case involves a substantial question of law of general importance, and

(ii) that in the opinion of the Court the said question needs to be decided by the Supreme Court.] (2) Upon receipt of such petition, the Court shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted."

7. A bare reading of the aforesaid provisions would make it clear that

if a person desires to appeal before the Supreme Court, he may

prefer a petition before the Court whose decree is complained of

seeking therein a certificate as to value or fitness on the ground

that a case involves a substantial question of law of general

importance and such question needs to be decided by the

Supreme Court.

8. In the application moved by the applicants, the grounds and

substantial question of law of general importance have not been

pleaded. But the same would not make this application

incompetent as according to Article 134A of the Constitution of

India, an oral prayer may be made before the Supreme Court

seeking such certificate.

9. Article 134A of the Constitution of India reads as under:-

"134A. Certificate for appeal to the Supreme Court -Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause (1) of article 132 or clause (1) of article 133, or clause (1) of article 134-

(a)may, if it deems fit so to do, on its own motion; and

(b)shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of article 132, or clause (1) of article 133 or, as the case may be, sub-clause (c) of clause (1) of article 134, may be given in respect of that case."

10.In para 2 of the application, it is stated that as per the opinion

received by the applicants herein, the case involves substantial

questions of law of general importance. It is nowhere stated as to

how and what substantial question(s) of law of general importance

are involved in the present case.

11.During the course of argument, it is argued that Order 22 Rule 10

of CPC would not attract and the applicants herein were parties to

the civil suit, therefore, they had the right to take defence which

was available to defendant No.1. The issue during the course of

arguments was considered in the first appeal and it was answered

accordingly and in the opinion of this Court, it is not a substantial

question of law of general importance.