Manorama Mansion Housing ... vs Sri Rupjyoti Sarmah
2021 Latest Caselaw 2951 Gua

                                                                     Page No.# 1/6

GAHC010316992019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                   Case No. : RSA/34/2020

             MANORAMA MANSION HOUSING SOCIETTY
             REPRESENTED BY ITS SECRETARY, NEW GUWAHATI, NOONMATI, MRD
             ROAD, GUWAHATI-781020, DISTRICT KAMRUP(METRO), ASSAM



             VERSUS

             SRI RUPJYOTI SARMAH
             SON OF SRI INDRANATH SARMAH, RESIDENT OF SANTIPATH, BYE LANE
             NO. 4, HOUSE NO.6, GANESH MANDIR PATH, NEW GUWAHATI, P.O. AND
             P.S. NOONMATI, GUWAHATI-781020, DISTRICT KAMRUP (METRO), ASSAM.



Advocate for the Petitioner   : MS. M B BARUAH

Advocate for the Respondent : DR. R SARMAH

BEFORE THE HON'BLE MR. JUSTICE DEVASHIS BARUAH order

18.11.2021

Heard Ms. MB Baruah, learned counsel appearing on behalf of the appellant and Mr. R Sarma, learned counsel appearing on behalf of the Page No.# 2/6

respondent.

This is an appeal under Section 100 of the Code of Civil Procedure challenging the judgment and decree passed by the appellate court dated 04.10.2019 in T.A. No. 105/2014 whereby the judgment and decree dated 30.09.2014 passed by the Munsif No. 4, Kamrup (M) in T.S. No. 360/2012 was confirmed. At the outset it may be relevant to mention that this appeal under Section 100 of the Code of Civil Procedure is against the concurrent finding of the facts by both the court below. It is no longer res-integra that the jurisdiction of the court under Section 100 of the Code of Civil Procedure is limited inasmuch as it is only when there is a substantial question of law involved thereby affecting the final adjudication, interference could be made by this court. In this regard the judgment of the Supreme Court rendered in the case of State Bank of India & Ors. vs. S.N. Goyal reported in (2008) 8 SCC 92 at para 13,14, & 15 are quoted hereinbelow:

"13. Second appeals would lie in cases which involve substantial questions of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this court (or by the concerned High Court so far as the State is concerned), arises for consideration in the case.

But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the concerned High Court), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the concerned High Court) would have led to a different decision, the appeal would involve a substantial question of law as between the Page No.# 3/6

parties. Even where there is an enunciation of law by this court (or the concerned High Court) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two view points, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a strait-jacket definition as to when a substantial question of law arises in a case. Be that as it may.

Procedure relating to second appeals

14. We may next refer to the procedure relating to second appeals as evident from section 100 read with order 42 Rules 1 and 2, of Code of Civil Procedure :

(a) The appellant should set out in the memorandum of appeal, the substantial questions of law involved in the appeal.

(b) The High Court should entertain the second appeal only if it is satisfied that the case involves a substantial question of law.

(c) While admitting or entertaining the second appeal, the High Court should formulate the substantial questions of law involved in the case.

(d) The second appeal shall be heard on the question/s of law so formulated and the respondent can submit at the hearing that the second appeal does not in fact involve any such questions of law. The Appellant cannot urge any other ground other than the substantial question of law without the leave of the court.

(e) The High Court is at liberty to reformulate the substantial questions of law or frame other substantial question of law, for reasons to be recorded and hear the parties or such reformulated or additional substantial questions of law.

15. It is a matter of concern that the scope of second appeals and as also the procedural aspects of second appeals are often ignored by the High Courts. Some of the oft-repeated errors are :

(a) Admitting a second appeal when it does not give rise to a substantial question of law.

(b) Admitting second appeals without formulating substantial question of law.

(c) Admitting second appeals by formulating a standard or mechanical question such as "whether on the facts and circumstances the judgment of the first appellate court calls for interference" as the substantial question of law.

(d) Failing to consider and formulate relevant and appropriate substantial question/s of law involved in the second appeal.

(e) Rejecting second appeals on the ground that the case does not involve any substantial question of law, when the case in fact involves substantial questions of law.

(f) Reformulating the substantial question of law after the conclusion of the hearing, while preparing the judgment, thereby denying an opportunity to the parties to make submissions on the reformulated substantial question of law.

(g) Deciding second appeals by re-appreciating evidence and interfering with findings of fact, ignoring the questions of law.

These lapses or technical errors lead to injustice and also give rise to avoidable further appeals Page No.# 4/6

to this court and remands by this court, thereby prolonging the period of litigation. Care should be taken to ensure that the cases not involving substantial questions of law are not entertained, and at the same time ensure that cases involving substantial questions of law are not rejected, as not involving substantial questions of law."

Ms. M.B. Baruah, the learned counsel for the appellant submits that the court below while interpretating Ext. 1 and Ext. A had committed manifest error by not looking into the evidence laid in the suit and thereby the suit was decreed on the basis of such perverse finding and the said is a substantial question of law for the adjudication of instant appeal. She submits that the interpretation of the Ext. 1 and Ext. A have not been properly done by the courts below and this is also a substantial question of law which arises in the instant appeal. The learned counsel appearing for the appellant has produced before me the entire evidence led by the parties before the courts below to substantiate her point that the findings arrived at are perverse.

I have perused the impugned judgment and decree passed by the Appellate court as well as by the Trial court. I have also examined the evidence laid by the parties in the suit as has been placed by the learned counsel for the appellant. The evidence of DW3, the evidence of the PW1 and the evidence of PW2 to the affect that there was a running water supply to the suit premises of the plaintiff at the time when the plaintiff purchased the suit premises could not be dislodged during the cross-examination. The evidence of the DW3 who happens to be the witness of the defendant had also categorically stated that at the time when he sold the premises to the plaintiff there was a running water supply. In his cross-examination he further confirmed and corroborated the story of the plaintiff. I have also examined Ext. 1 and more particularly clause 11 which stipulates that the plaintiff is entitled to water supply. The case of the defendant in the suit is that water supply is being given to the residential flats but however no water supply is given to the commercial one, but to prove the said fact Page No.# 5/6

neither the byelaws nor the Rules of the society have been adduced in evidence. In view of the above, the interpretation so given by the court below in respect of the Ext. 1 and the finding arrived at that the plaintiff is entitled to the water supply in my opinion does not call for any interference moreso in a proceeding under Section 100 of the Code of Civil Procedure. The question of perversity as alleged by the counsel for the appellant does not arise on the perusal of the material before. The substantial question of law which is sought to be raised by the learned counsel appearing on behalf of the appellant does not arise in the facts and circumstances in the instant petition for which the instant appeal stands dismissed.

At the time of passing the instant order, the counsel appearing for the appellant submits that by decree passed by the courts below, the Appellant has been directed to supply water upon deposit of the requisite fees and the appellant is ready to supply water provided the respondent herein bears the cost of the water tank and the plumbing expenses. To the said submission, the counsel appearing for the respondent submitted that the respondent has no problem in making payment as regards the cost of the water tank as well as the plumbing expenses from the water tank to the premises of the respondent/ plaintiff. In exercise of the powers conferred under Order XLI Rule 33 of the CPC, I hereby direct that the requisite fees as mentioned in the decree shall include the cost of the water tank of 500 liters as well as the plumbing expenses from the water tank to the premises of the plaintiff. However, it shall be the responsibility of the Appellant/ Defendant society to install the water tank and provide the water supply to the plaintiff. The expenses as regards the plumbing from the common tank to the water tank to be installed for the benefit of the plaintiff shall be borne by the Appellant. It is also directed that when the Page No.# 6/6

plaintiff deposits the cost as regards the water tank and plumbing expenses from the water tank to the premises of the plaintiff, the Appellant shall be bound to provide water supply within a period of one month from date of such deposit being made by the plaintiff. It is also clarified that in case of any dispute arises as regards the amount to be deposited the plaintiff shall arrange for the water tank of 500 liters capacity and the plumbing expenses from the water tank to the plaintiff suit premises by himself and shall inform the Appellant about the same by a notice, thereupon the Appellant shall do the needful within a period of one month from the date of receipt of such notice.

With the above observation, the instant appeal stands dismissed. No cost.

JUDGE

Comparing Assistant