Gujarat High Court
Sureshbhai Kalubhai Patel vs Pankajbhai Bhupatbhai Shah on 9 May, 2025
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Reserved On : -05.05.2025
Pronounced On : 09/05/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 495 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 495 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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SURESHBHAI KALUBHAI PATEL & ORS.
Versus
PANKAJBHAI BHUPATBHAI SHAH & ORS.
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Appearance:
MR NIRAD D BUCH(4000) for the Appellant(s) No. 1,2,3
MRS. BHAVINI N. BUCH(5403) for the Appellant(s) No. 1,2,3
MR HENIL M SHAH(10677) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV ORDER
1. The present Second Appeal has been filed under Section 100 of the
Code of Civil Procedure, 1908 (for short "the Code") being
aggrieved by the judgment and decree passed dated 15.07.2024,
passed by Principal District Judge, Bhavnagar. dismissing the
Regular Civil Appeal No.24 of 2018 and confirming the judgment
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and decree passed by, 2nd Additional Civil Judge, Bhavnagar in
Regular Civil Suit No.543 of 1999.
2. For the sake of brevity and convenience, the parties are referred to
as plaintiff and the defendant.
3. The brief facts arising out of the present second appeal is that the
plaintiff is the owner of the suit premises, and it is the case of the
plaintiff, that late Manilal Damodardas in his personal capacity was
the tenant of the suit premises and that deceased Manilal had no
child and the wife of late Manilal was not doing business with late
Manilal Damodardas at the time of his death.
4. The plaintiff filed a suit on the ground that after the death of late
Manilal and the death of his wife Shantaben, the suit property was
not used and was kept locked and when the plaintiff visited the suit
property, the plaintiff came to know that the defendants are doing
business in the suit premises and therefore, the plaintiff filed a suit
for recovery of possession from the defendants on the ground that
the defendants are trespasser in the property and that the
defendants have no right, title, interest to occupy the premises and
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that the defendants have illegally entered the suit premises and
therefore, the said suit was filed for possession of the suit property
and claiming mesne profit from the defendants.
5. The defendant appeared in the said suit and filed a written
statement that the defendants are not trespassers in the property and
that the suit property was taken on rent by a partnership firm.
6. After going through the documentary evidence and oral evidence
the trial court framed following issues vide exhibit 21:
"(1) Whether the Plaintiff
proves that the Respondent broke
open the lock of the suit property,
committed illegal trespass and
took possession of the suit
property and started business
thereon?
(2)Whether the Plaintiff proves
that there is no relation of owner
and tenant between him and the
Respondent?
(3)As the Respondent is using the
suit property unlawfully, whether
the Plaintiff is entitled to recover
Rs. 15,000/- for use and
occupation from the date of
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01.04.1997 till this suit at the rate
of Rs. 500/- for the use?
(4)Whether the Plaintiff proves
that he has issued notice dated
03.04/1999 to the Respondent and
terminated the tenancy?
(5)Whether the disputed notice is
legal?
(6)Whether the Plaintiff is entitled
to get the relief as prayed for ?
(7)Whether the suit of the Plaintiff
is barred by time limit?
(8)Whether the Respondent
proves that he is the tenant of the
suit property by paying rent of Rs.
55/-?
(9)Whether the Respondent
proves that he is ready and willing
to pay the rent?
(10) Whether the Respondent
proves that the Plaintiff has
preferred the present suit to
convert the tenancy rights of the
respondent business firm into
tenancy rights in his personal
name?
(10-A) Whether the applicant is
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entitled to get the rent of the
rented property fixed as Rs. 35/-
to Rs. 50/-?
(11) What order and decree?
(11-A) What order"
7. It is also required to be considered that the present defendant has
also filed Misc. Civil Application no.62 of 1999 for fixation of
standard rent. The plaintiff examined himself vide exhibit 57 and
the defendant no.1 one had examined himself vide exhibit 161 and
after going through the documentary evidence, oral evidence and
giving finding on all the issues, the Trial Court held the defendants
to be trespassers in the property and held that as the defendants are
not tenants in the property, the question of fixing standard rent
does not arise and the said Civil Misc. Application was dismissed
and the suit for recovery of possession filed by the plaintiff was
decreed in favor of the plaintiffs, aggrieved by the said order, the
defendants filed Civil Revision Application No.1 of 2018
challenging the order passed in Misc. Civil Application No.62 of
1999 and filed Regular Civil Appeal No.24 of 2018 against the
judgment and decree passed in Regular Civil Suit No.543 of 1999
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and after re-appreciating the evidence, the First Appellate Court
dismissed the said Civil Revision Application and the First Appeal
and the present second appeal has been filed against the judgment
and decree passed in First Appeal.
8. Learned advocate for the defendant has mainly submitted that that
from the documentary evidence produced in the suit, it can be
clearly established that the suit property was given on rent to Patel
Manilal Dambodardas, which is a partnership firm and therefore, as
the name of the tenant is Patel Manilal Dambodardas the present
plaintiffs are taking advantage of the said name and therefore, as
the said partnership firm was established on 13.02.1951, which is
produced vide exhibit 123 and the partner of the said partnership
firm was Manilal Dambodardas Patel, it can be clearly established
that the partnership firm was in possession of the property.
9. Learned advocate for the defendant has also tried to canvass his
argument on the point that as the plaintiffs have purchased the suit
property by registered sale deed in the year 1980, and late Manilal
Dambodardas retired from the partnership firm on 08.11.1980,
which is produced vide exhibit 168 and after said Manilal
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Dambodardas retired on 08.11.1980, new partners were introduced
in the said partnership firm which is produced vide exhibit 169.
Moreover, the fact that the tenant of the suit property was a
partnership firm can be clearly established from the fact that a
notice was given to the wife of original tenant on 24.03.1985,
which is produced vide exhibit 87 and a reply to the same legal
notice was given by the wife of late Manilal Dambodardas, which
is produced vide exhibit 89 and in the said reply also, it has been
categorically stated that the partnership firm was a tenant of the
suit property and that the suit property was not on rent in the
personal name of Manilal Dambodardas.
10. It has also been argued that, if the receipts that are produced vide
exhibits 91, 123. 125 are examined, the same is also in the name of
Manilal Dambodardas and it has been argued that from the plain
reading of the said rent receipts the name of the original tenant is
mentioned in the receipt and therefore, it is not the name of the
tenant that has been mentioned in the receipt.
11. It has also been argued by the learned advocate for the defendant
that the rent receipts that are on record are also after the death of
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late Manilal Dambodardas, who has expired on 28.04.1984 and
therefore, it has been argued that the plaintiffs were very much
aware of the fact that the partnership firm was tenant in the
premises. Moreover, it has also been argued that the address of the
tenant in the receipts also corroborate with the office address of the
partnership firm i.e. Danapit which is the office of the partnership
firm and the same can be established by exhibit 170, which is the
office premises of the partnership firm and therefore, it has been
argued that the plaintiffs were very much aware that the suit
property was given on rent to the partnership firm and therefore, as
the defendants are the partners of the said partnership firm they
cannot be considered as tresspassers of the property and the
possession cannot be taken away from the said tenants.
12. It has also been argued that the Trial Court and the Appellate Court
could not have decreed the suit as necessary and proper parties
were not joined in the said suit proceeding. The learned advocate
for defendant has relied on exhibit 90, which clearly says that the
suit property other than the plaintiff also belongs to two other
parties i.e. Harshaben and Ajwaniben and neither they have been
joined nor their legal heirs have been joined in the said suit
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proeceedings and therefore also the suit could not have been
allowed and a recovery of possession could not have been granted
in favour of the plaintiff and against the defendant.
13. Per-contra, the learned advocate for the plaintiff has argued that the
defendant in his cross examination has clearly admitted that the
suit property was in the individual name of Manilal Damodardas. It
has also been argued that there is no evidence to show that the suit
property was given on rent to the partnership firm.
14. Moreover, it has also been argued that the documents with respect
to the partnership firm were neither produced with the written
statement nor were they produced when the plaintiff examined
himself by exhibit 57 and the said documents are produced after 17
years. Moreover, the said documents are xerox copies and by an
order, the said documents have been exhibited and the said order
states that subject to proving the said documents, the said
documents have been exhibited and the fact is that, neither the
original documents on which the defendant relies with respect to
the existence of partnership firm have been produced and therefore,
the entire story with respect to partnership firm being a tenant of
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the suit property does not arise and is an afterthought.
15. Moreover, it has also been argued that there are concurrent findings
of Trial Court and the Appellate Court and the same are after going
through the entire record of the proceeding and therefore, the
present Second Appeal is required to be rejected.
16. Moreover, it has also been argued that the Trial Court has observed
while passing the judgment and decree that the documents on
which the defendant relies are false and fabricated documents. The
stamp that has been purchased on 31.03.1995 is also after the death
of Manilal Damodardas and therefore, the Trial Court and the
Appellate Court has rightly held that the said stamp could not have
been purchased by Manilal Damodardas.
17. It has also been argued by the learned advocate for the plaintiff that
during the lifetime of Manilal Damodardas, he had filed a suit
seeking mandatory injunction against the plaintiffs being Regular
Civil Suit No.896 of 1981, which is produced vide exhibit 92 and
the said suit has been filed before the Senior Civil Judge at
Bhavnagar and the said suit has been filed along with other tenant
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i.e. Jayantilal and Brothers partnership firm and therefore, in the
said suit as late Manilal Damodardas, has himself not stated that
the partnership firm is a tenant in the premises and the said suit has
been filed in the individual capacity itself shows that the
partnership firm was never a partner in the suit premises.
Moreover, it has also been argued that the rent receipt produced
vide exhibit 91, 123, 125 and the tax bills all are not in the name of
the partnership firm, but are in the individual name of the tenant,
who has expired and the present defendants are not the legal heirs
and do not fall under the provisions of Section 5(11)(c) of the
Bombay Rent Act and therefore, the Trial Court and the Appellate
Court have rightly decreed suit in favour of the plaintiff.
18. Moreover, it has also been argued that there are no substantial
questions of law involved in the present second appeal and the
substantial question of law that has been suggested in the
memorandum appeal are all on factual aspect and therefore, the
second appeal is required to be dismissed.
19. Learned advocate for the plaintiff has relied on judgments, Sri
Gangai Vinayagar Temple Vs. Meenakshi Ammal, 2014 (0)
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AIJEL SC 55794, Ram Prakash Vs. Charan Kaur, 1997 (0)
AIJEL SC 23744, Bai Chanchal Widow of Chhaganbhai Jibhai
Vs. Bai Suraj Widow of Ranchhodbhai Chhaganbhai, 1962 (0)
AIJEL HC 215941, Kondiba Dagadu Kadam Vs. Savitribai
Sopan Gujar, 1999 (0) AIJEL SC 14770, Naresh Vs. Heman,
2019(0) AIJEL SC 65359.
20. Learned advocate for the defendant has relied on the judgment in
case of Chandrabhan (Deceased) through Lrs. & Ors. Vs.
Saraswati & Ors, 2022 LawSuit (SC) 1133.
21. Having heard learned advocates for the parties and after going
through the judgment and decree passed by the Trial Court and the
Appellate Court the fact remains that the dispute between the
parties to the litigation is whether the suit property was given on
rent to individual i.e. Manilal Damodardas Patel or the partnership
firm was a tenant in the premises. The plaintiff has produced the
documentary evidence that are the rent receipts with respect to the
suit property which clearly states that all the rent receipts are in the
individual name i.e. Manilal Damodardas Patel, there is no
document to show that the landlord had ever agreed and
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acknowledged the partnership firm to be the tenant in the premises.
The document that have been produced vide exhibit 91 also state
that the name "(Bhai)" "(Shri)" "Manilal Damodardas Patel". The
partnership firm name is "Patel Manilal Damodardas" and the rent
receipts produced vide exhibit 123 is in the name of "Manilal
Damodardas Patel". The document vide exhibit 125 is also in the
name of "Manilal Damodardar Patel", vide exhibit 130 "(Shri)" is
mentioned before "Manilal Damodardas", the Tax Bill produced at
page 142 is also in the individual name of Manilal Damodardar
Patel.
22. Though a specific issue was raised before the trial court that
whether there is any relationship of landlord and tenant between
the plaintiff and the defendant, the Trial Court has come to a
finding that there is no relationship of tenant and landlord between
the plaintifff and defendants.
23. The fact also remains that the plaint produced vide exhibit 92 of
the Civil Suit No.896 of 1981, which was filed by Manilal
Damodardas against the landlord was also in his individual
capacity and therefore, Manilal Damodardas has never claimed that
the tenant of the suit property was partnership firm.
24. The defendants have tried to canvas their argument on the
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basis that the Manilal Damodardas was a partner in the
partnership firm known as "Manilal Dmodardas" but the fact
remains that though some of the partnership business was
being carried out at the suit property but the fact remains that
the tenant of the suit property was the individual i.e. Manilal
Damodardas Patel and not the partnership firm.
25. Moreover, while deciding the Civil Revision Application no.1
of 2018, the First Appellate Court has taken into consideration
all the said facts and the said order passed in Civil Revision
Application No.1 of 2018 has not been challenged by the
defendants and therefore, the said observation and finding of
the Civil Revision Application no.1 of 2018 has become final
and the application for standard rent filed by the defendant has
been dismissed and therefore, the said findings have become
final. It is also important to be take into consideration that
Manilal Patel retired as a partner of partnership firm on
08.11.1980 and the said retirement deed has been produced
vide exhibit 141 and thereafter Manilal Patel died on
28.04.1984. It is also required to take into consideration that in
the cross-examination of defendant no.1, he has clearly
admitted that the tenant of the suit property was of Manilal
Patel, moreover there is no evidence to the fact that the firm
was a tenant in the suit property. The First Appellate Court has
also arrived at a conclusion that the document that have been
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produced by the defendants at exhibit 139 and 171 i.e.
dissolution of partnership are forged and fabricated documents
and it is not possible to purchase a stamp paper in the name of
a person who has expired. The judgement on which learned
advocate for the defendant is relying on the judgment in case
of Chandrabhan (Deceased) through Lrs. & Ors. Vs. Saraswati
& Ors, 2022 LawSuit (SC) 1133 in the said Judgement at para
32 it is referred as under:
"32. 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 bearing 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. An entirely new
point raised for the first time before
the High Court is not a question
involved in the case unless it goes to
the root of the matter. It will,
therefore, depend on the facts and
circumstance of each case whether a
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question of law is a substantial one
and involved in the case 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. (See Santosh Hazari v.
Purushottam Tiwari, 2001 3 SCC
179)."
26. The aforesaid judgment will be of no assistance to the learned
advocate for the defendant as there are no substantial questions
of law involved in the present second appeal.
27. Learned advocate for the plaintiff has also relied on the
judgment in case of Bai Chanchal Widow of Chhaganbhai
Jibhai Vs. Bai Suraj Widow of Ranchhodbhai
Chhaganbhai, 1962 (0) AIJEL-HC 215941, wherein para
nos.20, 26 and 28 it is held as under:
"20. Now to turn to the facts of this
revision application. Civil Suit No.
162 of 1957 was filed by the wife of
one Ranchhod Chhaganbhai and
others against the mother of
Ranchhod and others. The wife
claimed possession and mesne
profits of the properties said to be in
possession of the mother. She put
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her claim on the ground that after
the death of her husband her
husband's property devolved on her
as her son.
26. It is contended by the learned
counsel for the opponents that
Section 11, Civil Procedure Code,
does not apply to appeals and ha
relies on Mt. Lachhmi v. Mt. Bhulli,
AIR 1927 Lah 289 and the fact that
the judgment has been referred to
with approval by their Lordships of
the Supreme Court in Narhari v.
Shanker, AIR 1953 SC 419. In AIR
1927 Lah 289, the following
observations have been made : -
"Section 11 applies to suits
and not to appeals. But the
general principle of res
judicata will apply to appeals;
and, in applying these general
principles, the courts are not
hampered by any technical
rules of interpretation such as
govern the applicability of a
statute."
It may be that if Section 11, C.
P. Code does not apply to
appeals, the principle of res
judicata contained in that
section might apply as a
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general principle because
Section 11, C. P. Code is not
exhaustive as decided by their
Lordships of the Privy
Council, in Hook G. H. v.
Administrator General of
Bengal, ILR 48 Cal 499 : (AIR
1921 PC 11)."
28.Section 108, C. P. Code has no
application, because Section 108 is
contained in Part VII, whereas
Section 11, C. P. Code is contained in
Part I, C. P. Code. Order 42, Rule 1,
has also no application because it
only provides that the rules of Order
41 shall apply as far as may be to
appeals from the appellate decrees. It
has no reference to Section 11, C. P.
Code."
28. The said Judgement also will not be applicable to the facts of
the present case as in the present case, Civil Revision
Application no.1 of 2018 was filed with respect to the fixation
of standard rent under the provisions of Bombay Rent Act and
the Civil Suit No.543 of 1999 that was challenged, and the
appeal that was filed, challenging the decree of eviction was
under the provisions of Code of Civil Procedure, 1908 and the
facts of both the case were totally different as in the Civil
Misc. Application 62 of 1999, the dispute was of fixation of
standard rent as the present defendant was claiming to be the
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tenant of the suit property and therefore had filed an
application for fixing the standard rent and and the Civil Suit
No.543 of 1999 was filed by the plaintiffs for possession of the
suit property on the ground that the present defendant do not
have any right, title, interest to occupy the suit premises.
29. The judgements that have been relied upon by the plaintiff,
more particularly Sri Gangai Vinayagar Temple Vs. Meenakshi
Ammal, 2014 (0) AIJEL SC 55794, para 22 and 23 reads as
under:
"22. Procedural norms,
technicalities and processal law
evolve after years of empirical
experience, and to ignore them
or give them short shrift
inevitably defeats justice. Where
a common judgment has been
delivered in cases in which
consolidation orders have
specifically been passed, we
think it irresistible that the filing
of a single appeal leads to the
entire dispute becoming sub
judice once again. Consolidation
orders are passed by virtue of
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the bestowal of inherent powers
on the Courts by Section 151 of
the CPC, as clarified by this
Court in Chitivalasa Jute Mills
vs. Jaypee Rewa Cement (2004)
3 SCC 85. In the instance of suits
in which common Issues have
been framed and a common Trial
has been conducted, the losing
party must file appeals in respect
of all adverse decrees founded
even on partially adverse or
contrary speaking judgments.
While so opining we do not
intend to whittle down the
principle that appeals are not
expected to be filed against every
inconvenient or disagreeable or
unpropitious or unfavourable
finding or observation contained
in a judgment, but that this can
be done by way of cross-
objections if the occasion arises.
The decree not assailed
thereupon metamorphoses into
the character of a "former suit".
If this is not to be so viewed, it
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would be possible to set at
naught a decree passed in Suit A
by only challenging the decree in
Suit B. Law considers it an
anathema to allow a party to
achieve a result indirectly when
it has deliberately or negligently
failed to directly initiate
proceedings towards this
purpose. Laws of procedure have
picturesquely been referred to as
handmaidens to justice, but this
does not mean that they can be
wantonly ignored because, if so
done, a miscarriage of justice
inevitably and inexorably
ensues. Statutory law and
processal law are two sides of
the judicial drachma, each being
the obverse of the other. In the
case in hand, had the Tenant
diligently filed an appeal against
the decree at least in respect of
O.S. 5/78, the legal conundrum
that has manifested itself and
exhausted so much judicial time,
would not have arisen at all.
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23. Adverting in the impugned
Judgment to the decision of this
Court in Sajjadanashin Sayed vs.
Musa Dadabhai Ummer AIR 2000 SC
1238, the Division Bench delineated
the distinction between an aspect of
the litigation that is collaterally and
incidentally, as against one that is
directly and substantially focal to the
question the determination of which
is the immediate foundation of the
decision. Reference was also drawn
to enunciation of what constitutes res
judicata in Hoag vs. New Jersey
(1958) 356 U.S. 464, namely that this
important legal principle is attracted
"if the records of the formal trial
show that the judgment could not
have been rendered without deciding
the particular matter, it will be
considered as having settled that
matter as to all future actions
between the parties". The Division
Bench also garnered guidance from
the observations of this Court in
Isher Singh vs. Sarwan Singh, AIR
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1965 SC 948 requiring the
examination of the Pleadings and the
Issues in order to ascertain whether
the question was directly and
substantially litigated upon. The
Division Bench also considered
Asrar Ahmed vs. Durgah Committee,
Ajmer, AIR 1947 PC 1 and Pragdasji
Guru Bhagwandasji vs. Patel
Ishwarlalbhai Narsibhai, AIR 1952
SC 143, before concluding that Issue
No.2 framed in O.S. 5/78 was wholly
unnecessary and faulty. The Division
Bench held that the findings on that
Issue were unnecessary, did not
constitute the minimum foundation
for the ultimate decision and,
therefore, would not constitute res
judicata. We have already indicated
above that, in our opinion, if
O.S.5/78 was merely a suit for
injunction simpliciter, since the
Defendants therein (both the Trustees
as well as the Transferees) had
posited in their respective Written
Statements that they had no intention
to dispossess the Plaintiff/Tenant,
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that suit ought not to have been
dismissed but should have been
decreed. We have also laid emphasis
on the fact that the Tenant had made
a specific and pointed assertion in
the plaint that the transfer of the
demised land by the Trust to the
Transferees was not in consonance
with Section 26 of the Puducherry
Hindu Religious Institutions Act,
1972. We have also noticed the fact
that this was an important objection
raised by the Tenant in their Written
Statement in O.S.6/78 and O.S.7/78.
It seems to be incongruous to us to
consider ownership of the demised
premises to be irrelevant in O.S.5/78
but nevertheless constitute the kernel
or essence or fulcrum of the disputes
in O.S.6/78 and O.S.7/78. The
dialectic adopted by the Court must
remain steadfastly constant - if title
was irrelevant so far as a claim for
injunction simpliciter, it was
similarly so in relation to the party
having the advantage of Section 116
of the Evidence Act in respect of its
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claim for arrears of rent from its
tenant. It would not be logical to
overlook that the pleadings on behalf
of the Tenant were common in all
three suits, and that Issues on this
aspect of the dispute had been
claimed by the Tenants in all the
three suits. On a holistic and
comprehensive reading of the
pleadings of the Tenant in all the
three suits, it is inescapable that the
Tenant had intendedly, directly and
unequivocally raised in its pleadings
the question of the title to the demised
premises and the legal capacity of the
Trustees to convey the lands to the
Transferees. This is the common
thread that runs through the
pleadings of Tenant in all three suits.
It is true that if O.S.5/78 was a suit
for injunction simpliciter, and in the
wake of the stance of the Trustees
and Transferees that no threat had
been extended to the Tenants
regarding their ouster, any reference
or challenge to the ownership was
wholly irrelevant. But the ownership
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issue had been specifically raised by
the Tenant, who had thus caused it to
be directly and substantially in issue
in all three suits. So far as the Suit
Nos.6/78 and 7/78 are concerned,
they were also suits simpliciter for
the recovery of rents in which the
defence pertaining to ownership was
also not relevant; no substantial
reason for the Tenant to file an
appeal in O.S. 6/78 had arisen
because the monetary part of the
decree was relatively insignificant.
Obviously, the Tenant's resolve was
to make the ownership the central
dispute in the litigation and in these
circumstances cannot be allowed to
equivocate on the aspect of
ownership. Logically, if the question
of ownership was relevant and
worthy of consideration in O.S. 6/78,
it was also relevant in O.S. 5/78.
Viewed in this manner, we think it is
an inescapable conclusion that an
appeal ought to have been filed by
the Tenant even in respect of O.S.
5/78, for fear of inviting the rigours
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of res judicata as also for correcting
the "dismissal" order. In our
opinion, the Tenant had been
completely non-suited once it was
held that no cause of action had
arisen in its favour and the suit was
'dismissed'. Ignoring that finding and
allowing it to become final makes
that conclusion impervious to
change. In Sheoparsen Singh vs.
Ramnandan Prasad Singh, (1915-16)
43 I.A.91, the Privy Council opined -
"Res judicata is an ancient doctrine
of universal application and
permeates every civilized system of
jurisprudence. This doctrine
encapsulates the basic principle in all
judicial systems which provide that
an earlier adjudication is conclusive
on the same subject matter between
the same parties." The raison d'etre
and public policy on which Res
judicata is predicated is that the
party who has raised any aspect in a
litigation and has had an Issue cast
thereon, has lead evidence in that
regard, and has argued on the point,
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remains bound by the curial
conclusions once they attain finality.
No party must be vexed twice for the
same cause; it is in the interest of the
State that there should be an end to
litigation; a judicial decision must be
accepted as correct in the absence of
a challenge. The aspect of law which
now remains to be considered is
whether filing of an Appeal against a
common Judgment in one case,
tantamounts to filing an appeal in all
the matters."
30. In case of Ram Prakash Vs. Charan Kaur, 1997 (0) AIJEL-
SC 23744, in para nos.1 it is held as under:
"1. This special leave petition arises
from the judgment of the Himachal
Pradesh High Court, made on
September 18, 1996 in Second
Appeal No.215 of 1987. Admittedly,
both the petitioner and the
respondents had filed civil suits
claiming damages against each
other. The petitioner's suit was
dismissed and the respondents' suit
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was also dismissed by the trial Court
but on appeal filed by the
respondents, it was allowed and was
decreed for recovery of Rs.24,875/-.
The petitioner filed second appeal
against the decree which was
admitted. However, the petitioner
did not carry the matter in second
appeal against his suit for damages
and was content with filing an
appeal against the decree of
damages granted against him. The
High Court recording the findings
has held thus:
"Thus, on the basis of the
aforesaid factual as well as
legal proposition, it can
safely be said that where
two connected suits have
been tried together and the
findings recorded in one of
he suit have become final in
absence of an appeal, the
appeal preferred against the
findings recorded in the
other suit would definitely
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be barred by the principles
of res judicata. This is the
ratio of the above cited case
law decided by the apex
Court of the country. Thus,
there is absolutely no
necessity to go into other
aspects of the appeal,
especially when on factual
side, as detailed above, the
decree, not appealed
against by the present
appellant, passed by the first
appellate Court, has become
final between the parties,
which has created a legal
bar for the maintainability
of the present appeal
whereby the decree passed
in the other suit has been
assailed.""
31. Learned advocate for the plaintiff has also relied upon the
judgment in case of Naresh Vs. Hemant, 2019(0) AIJEL-SC
65359, more particularly para nos.11 , 12, 13 and 14 which
reads as under:
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"11. The High Court invoked the presumption
without proper consideration and
appreciation of the facts considered and dealt
with by two courts holding by reasoned
conclusions why the presumption stood
rebutted on the facts. The High Court also
committed an error of record by holding that
there was no evidence that Trimbakrao Ingole
alone had constructed the house, a finding
patently contrary to the admission of PW-1 in
his evidence. The fact that mutation also was
done in the name of Trimbakrao Ingole alone
which remain unchallenged at any time was
also not noticed. The conclusion of the High
Court that improper appreciation of evidence
amounted to perversity is completely
unsustainable. No finding has been arrived at
that any evidence had been admitted contrary
to the law or that a finding was based on no
evidence only in which circumstance the High
Court could have interfered in the second
appeal.
12. The High Court therefore manifestly erred
by interfering with the concurrent findings on
facts by two courts below in exercise of
powers under Section 100, Civil Procedure
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Code, a jurisdiction confined to substantial
questions of law only. Merely because the
High Court may have been of the opinion that
the inferences and conclusions on the
evidence were erroneous, and that another
conclusion to its satisfaction could be drawn,
cannot be justification for the High Court to
have interfered.
13. In Madamanchi Ramappa vs. Muthaluru
Bojappa, (1964) 2 SCR 673, this court with
regard to the scope for interference in a
second appeal with facts under Section 100 of
the Civil Procedure Code observed as
follows:
"12. ....The admissibility of evidence is no doubt
a point of law, but once it is shown that the
evidence on which courts of fact have acted was
admissible and relevant, it is not open to a party
feeling aggrieved by the findings recorded by the
courts of fact to contend before the High Court in
second appeal that the said evidence is not
sufficient to justify the findings of fact in
question. It has been always recognised that the
sufficiency or adequacy of evidence to support a
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finding of fact is a matter for decision of the
court of facts and cannot be agitated in a second
appeal. Sometimes, this position is expressed by
saying that like all questions of fact, sufficiency
or adequacy of evidence in support of a case is
also left to the jury for its verdict. This position
has always been accepted without dissent and it
can be stated without any doubt that it enunciates
what can be properly characterised as an
elementary proposition. Therefore, whenever this
Court is satisfied that in dealing with a second
appeal, the High Court has, either unwittingly
and in a casual manner, or deliberately as in this
case, contravened the limits prescribed by
Section 100, it becomes the duty of this Court to
intervene and give effect to the said provisions. 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
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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."
14. Though precedents abound on this settled
principle of law, we do not consider it necessary
to burden our discussion unnecessarily except to
rely further on Gurdev Kaur and others vs. Kaki
and others, (2007) 1 SCC 546, holding as
follows:
"71. The fact that, in a series of cases, this Court
was compelled to interfere was because the true
legislative intendment and scope of Section 100
CPC have neither been appreciated nor applied.
A class of judges while administering law
honestly believe that, if they are satisfied that, in
any second appeal brought before them evidence
has been grossly misappreciated either by the
lower appellate court or by both the courts
below, it is their duty to interfere, because they
seem to feel that a decree following upon a gross
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misappreciation of evidence involves injustice
and it is the duty of the High Court to redress
such injustice. We would like to reiterate that the
justice has to be administered in accordance with
law.
Xxxx
73. The Judicial Committee of the Privy Council
as early as in 1890 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 to, or enlarge, the
grounds specified in Section 100.
xxxx
81. Despite repeated declarations of law by
the judgments of this Court and the Privy
Council for over a century, still the scope of
Section 100 has not been correctly
appreciated and applied by the High Courts
in a large number of cases. In the facts and
circumstances of this case the High Court
interfered with the pure findings of fact even
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after the amendment of Section 100 CPC in
1976. The High Court would not have been
justified in interfering with the concurrent
findings of fact in this case even prior to the
amendment of Section 100 CPC. The
judgment of the High Court is clearly
against the provisions of Section 100 and in
no uncertain terms clearly violates the
legislative intention.
82. In view of the clear legislative mandate
crystallised by a series of judgments of the
Privy Council and this Court ranging from
1890 to 2006, the High Court in law could
not have interfered with pure findings of
facts arrived at by the courts below.
Consequently, the impugned judgment is set
aside and this appeal is allowed with
costs.""
32. Learned advocate for the plaintiff has also relied upon the
judgment in case of Kondiba Dagadu Kadam Vs. Savitribai
Sopan Gujar, 1999 (0) AIJEL-SC 14770, at para no.4,
wherein it has been held that the second appeal cannot be
decided on merely equitable grounds and that the conditions
mentioned in Section 100 of the Code of Civil Procedure,
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1908 must be strictly fulfilled before a second appeal can be
maintained and that the Court has the power to add to or
enlarge those grounds.
33. Learned advocate for the plaintiff has also argued that there
are no substantial questions of law involved in the present
Second Appeal. The Trial Court and the First Appellate Court
has given a concurrent finding to the fact that the defendants
are not the tenants of the suit property and that the suit
property has been given on rent to the individual Manilal and
that after his death the present defendants are not the tenants of
the property.
34. It is required to be noted that in Second Appeal, the scope is
very limited and the Court cannot re-appreciate the evidence.
In the case of Navaneethammal v. Arjuna Chetty reported in
1996 (6) SCC 177, the Hon'ble Apex Court has observed as
under:-
"11. This Court, time without number,
pointed out that interference with the
concurrent findings of the courts
below by the High Court under
Section 100 CPC must be avoided
unless warranted by compelling
reasons. In any case, the High Court
is not expected to reappreciate the
evidence just to replace the findings
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of the lower courts."
35. Having taken into consideration the facts of the present case
and the judgment relied on by the plaintiff that there are
concurrent findings on facts and the view that has been taken
are not erroneous and therefore, cannot be disturbed by the
High Court in exercise of powers under Section 100 of the
Code.
36. In view of the said fact, the Trial Court has rightly come to the
findings that there is no relationship of tenant and landlord between
the plaintiff and defendants.
37. The Trial Court and the Appellate Court have also rightly come to
the conclusion that even during the lifetime of late Manilal
Damodardas he had not claimed that the partnership firm is a
tenant in the property.
38. In view of the said fact, the findings arrived at by the Trial Court
and the Appellate Court are not erroneous and contrary to the
mandatory provisions of law.
39. In the case of Jaichand (Dead) through Lrs and Other v.
Sahnulal and Another reported in 2024 SCC OnLine SC
3864, the Hon'ble Apex Court has observed as under:-
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"28. It is thus clear that under Section
100 CPC, the High Court cannot
interfere with the findings of fact
arrived at by the first Appellate Court
which is the final Court of facts except
in such cases where such findings were
erroneous being contrary to the
mandatory provisions of law, or its
settled position on the basis of the
pronouncement made by the Apex
Court or based upon inadmissible
evidence or without evidence."
40. Therefore, also the plaintiff has miserably failed to show that
there is any substantial question of law involved in the present
appeal and the substantial question of law which has been
formulated in the memo of appeal are also not substantial
question of law and on facts and the said factual aspect has
well been considered by the Trial Court and the First Appellate
Court.
41. Under the circumstances, this Second Appeal is devoid of any
substantial question of law. Both the learned Trial Court and
first appellate Court have rightly decided the issue between the
parties in the right perspective and as stated above no
substantial question of law arises in the present appeal. The
plaintiffs have failed to prove their case before the learned trial
Court as well as before the first appellate Court. This Court
does not find any substance in the present Second Appeal as
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the same is devoid of any merit both on facts and law and the
same is dismissed at admission stage. In view of the disposal
of the Second Appeal, the Civil Application for stay would not
survive and the same is accordingly disposed of.
Sd/-
(SANJEEV J.THAKER,J)
URIL RANA
