Gujarat High Court
Sumra Sakinbhai Yakub vs Laghay Alimamad Umar on 6 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 6 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/SECOND APPEAL NO. 6 of 2021
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SUMRA SAKINBHAI YAKUB & ORS.
Versus
LAGHAY ALIMAMAD UMAR & ANR.
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Appearance:
MANAN K PANERI(7959) for the Appellant(s) No. 1,2,3,4,5
DELETED for the Respondent(s) No. 1
MALAV M MULANI(8844) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 06/11/2025
ORAL ORDER
1. This Second Appeal under section 100 of the Civil
Procedure Code, 1908 (for short "CPC") challenges judgment
and decree passed by learned Appellate Court, Bhuj, Kachchh
in Regular Civil Appeal No.44 of 2009, whereby, learned
Appellate Court allowed the appeal filed by original defendant
and quashed and set aside judgment and decree delivered in
Regular Civil Suit No.255 of 2004 by learned Principal Senior
Civil Judge, Bhuj, by which learned Trial Court has allowed the
suit of the plaintiff and declared that plaintiff is tenant of
disputed property and defendant is forever not entitled to lease
or rent suit premises to any other person except plaintiff and
further defendant was directed to continue plaintiff as legal
tenant.
2. For convenience, the parties are referred to their original
status i.e. plaintiff and defendant.
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3. Facts of the case are as under :-
3.1. Plaintiff has filed Regular Civil Suit No.255 of 2004 before
the learned Principal Senior Civil Judge, Bhuj seeking
declaration and permanent injunction on the ground that he is
tenant of house no.7/5/102 on the Final Plot No.268, Survey
No.1850 City Bhuj ("suit property") since 1982. Right of the
plaintiff being tenant has been accepted in various litigation.
Plaintiff has paid rent regularly but defendant with greed trying
to take up possession of suit property without following
provisions of law. Upon such pleadings and setting up the cause
of action to that effect, plaintiff has filed suit with following
reliefs in para 6 of the suit (it in Gujarati, for better
understanding it is translated in English) :-
"(1) It is humbly prayed that summons/notice be served to
the Defendants to appear before the Ld. Court.
(2) It is humbly prayed that a legal Notification be issued,
declaring that the suit property situated in Bhuj, Gumra Deli
area, Municipal House No. 7/5/102, City Survey No. 1850,
Town Planning Final Plot No. 268, bounded by the four
directions as mentioned in Para-1 of the plaint is owned by
the Defendant and the Plaintiff is a tenant; and that the
Defendant does not possess the right to rent out the house in
question to anyone other than the Plaintiff.
(3) It is humbly prayed that an injunction order be passed
against the Defendant, restraining him from carrying out or
commissioning any kind of construction in the house in
question without the consent of the Plaintiff and without
obtaining possession from the Plaintiff.
(4) It is humbly prayed that a standing order be issued,
directing the Defendants to continue the Plaintiff as a tenant
in accordance with the law.
(5) It is humbly prayed that this and all other relief that
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may be available as per law and facts be granted."
3.2. Defendant filed written statement and denied right of the
plaintiff with specific plea that suit property was mortgage
property. Transaction between mortgagor and mortgagee came to
end by consent decree in civil suit. The plaintiff was inducted in
suit property by mortgagee. Plaintiff's right to continue his
possession end when mortgagee handed over suit property and
therefore, there is no subsisting relationship between landlord
and tenant between parties to the suit. Moreover, entire suit
property has been destroyed in earthquake witnessed by the
Gujarat State in the year 2001. The plaintiff can be at the most
tenant of mortgagee and he cannot claim tenancy right over the
open land.
4. Learned Trial Court after framing issues believed that
plaintiff has proved his case and therefore, passed decree
declaring plaintiff as tenant and further passed declaration that
defendant has no right to rent premises except exclusively to
plaintiff and plaintiff is tenant as per provision of law.
5. Being aggrieved by the said judgment passed by learned
Trial Court, Regular Civil Appeal No.44 of 2009 was preferred by
defendant before the learned Appellate Court under section 96 of
CPC. Learned Appellate Court taking resort of various
authorities believed no relationship of landlord and tenant and
held that if tenant is inducted by any mortgagee and once the
right of the mortgage comes to an end, the tenant inducted by
the mortgagee will have no right in the suit property. By this
finding, learned Appellate Court reversed the judgment and
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decree passed by learned Trial Court. Thus, present Second
Appeal.
6. I have heard learned advocate Mr. Manan Paneri for the
appellant. Learned advocate Mr. Mulani for respondent no.2 did
not remain present when the matter is taken up for hearing.
7. Learned advocate Mr.Paneri seeking admission of Second
Appeal under section 100 of CPC referred to question of law
stated in para 4 of the grounds and submitted that learned
Appellate Court without considering averments and contentions
erroneously referred to relationship of mortgagee and mortgagor
and believed that plaintiff being person inducted in the suit
property by mortgagee has no right over the suit property after
redemption of mortgage. It is submitted that learned Appellate
Court passed decree completely in ignorance of section 5(3) of
the Gujarat Rents, Hotel and Lodging House Rates Control Act,
1947 (for short 'Rent Act'), defining landlord and as well as
section 5(8) of the said Act defining premises and section 5(11) of
the Act defining term tenant. He would submit that defendants
are exclusive owners of the suit property and therefore, learned
Appellate Court cannot come to conclusion that since plaintiff
was inducted by mortgagee, plaintiff cannot claim tenancy rights
over the suit property after redemption of mortgage.
7.1. Another argument of learned advocate for the appellant is
that section 11(B) of the Rent Act has been completely lost sight
by learned Appellate Court. It is submitted that section 11(B)
recognizes right of tenants in new building when premises is
damaged or destroyed due to natural calamity. It is submitted
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that this provision was inserted in the Rent Act by Gujarat No.26
of 2001. It is submitted that suit property was damaged in
massive earthquake which took place in Kutch. It is submitted
that in view of section 11(B) of Rent Act, which recognizes right
of tenant where premises is destroyed due to natural calamity
would not have been vanished. It is submitted that learned
Appellate Court has not considered this issue and therefore,
committed serious error.
7.2. It is also argued by learned advocate for the appellant that
original owner of suit property has sold suit property to original
respondent no.2 - Majodi Adam Kasam at Exh.79 on 'is as and
where is basis'; such terms recognized and accept tenancy
rights of the plaintiff. However, this issue is not properly
appreciated by learned Appellate Court.
7.3. Mainly on above submission, learned advocate Mr. Paneri
submitted to admit the Second Appeal on the substantial
question of law stated in para 4 of the appeal memo.
8. As noted above, learned advocate Mr.Mulani for respondent
did not remain present when the matter was taken up for
hearing.
9. Having heard learned advocate for the appellant, at the
outset, I may refer question of law framed by the appellant
claiming it as substantial question law as under :-
"A. Whether the Learned First Appellate Court committed
error of Law in mechanically deciding the Appeal and
dismissing the suit of the Ori. Plaintiffs only on the ground
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that the Ori. Plaintiffs being tenant of the mortgagee cannot
be entitled to tenancy rights over the suit property after
redemption of mortgage?
B. Whether the Learned First Appellate Court committed
grave error in failing appreciate the recitals of sale deed
dated to 18.07.2002 at Exh.79 whereby the Legal heirs of
the original owner of the suit property have sold the suit
property to the Respondent No.2 on "is as and where is
basis" and have acknowledged the tenancy rights of the Ori.
Plaintiffs as tenant over the suit property?
C. Whether the Learned First Appellate Court committed
substantial error of Law in failing to appreciate the definition
of "landlord" and "tenant" contained in Section 5 of the
Gujarat Rents, Hotel and Lodging House Rates Control Act,
1947 which says that the individual "landlord" may change
but that does change the status of "tenant" or affect his
tenancy rights.
D. Whether the Learned First Appellate Court committed
grave error of Law in failing to appreciate the definition
"premises" under Section 5 (8) of the Gujarat Rents, Hotel
and Lodging House Rates Control Act, 1947, which would
include the right of the tenant not only over the
superstructure but also the land beneath it?
E. Whether the Learned First Appellate Court committed
grave error of Law in failing to appreciate Section 11B of the
Gujarat Rents, Hotel and Lodging House Rates Control Act,
1947 and holding that the right of the Ori. Plaintiffs would
come to an end after destruction of suit property in
earthquake?
F. Whether the Learned First Appellate Court committed
grave error of Law in failing to appreciate that the Section 12
r/w Section 13 of Gujarat Rents, Hotel and Lodging House
Rates Control Act, 1947 stipulates that only in limited
conditions the tenant can be ejected and further failing to
appreciate that no such action following the due process of
Law has been initiated against the Ori. Plaintiffs and
therefore the Ori. Plaintiffs-Appellants entitled to legal
protection.
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G. Whether the Learned First Appellate Court committed
grave error of Law in failing to appreciate that deed
compromise any regarding ejection of Appellants from the
suit property executed in Regular Civil Suit No. 262 of 1982
would not be binding upon the Appellants inasmuch as the
Appellants were not made a party to the suit proceedings,
even though required under Order XXXIV Rule 1 of the Code
of Civil Procedure, 1908, which stipulates that all persons
having an interest either in mortgage-security or in the right
of redemption shall be joined as parties to any suit relating
to the mortgage."
10. Before appreciating submission of learned advocate for the
appellant, firstly, I may refer to issue framed by learned Trial
Court at Exh.26, as under (it is in Gujarati, for better
understanding, it is translated in English) :-
"(1) Whether the Plaintiff proves that the Plaintiff is the
lawful tenant of the house owned by the Defendant at
Municipal House No. 7/5/102, City Survey No. 1850, Town
Planning Final Plot No. 268, in the Sumra Deli area in Bhuj?
(2) Whether the Plaintiff proves that the Defendant has no
right or authority to rent out the house in question to anyone
other than the Plaintiff?
(3) Whether the Plaintiff proves that the rented house in
question are under the possession and occupancy of the
Plaintiff?
(4) Whether the Plaintiff proves that the Defendant has no
right or authority to carry out any kind of construction at the
house in question without the consent of the Plaintiff and
without obtaining possession from the Plaintiff?
(5) Whether the suit is barred by any legal provision?
(6) Whether the Plaintiff is lawfully entitled to get the
reliefs as prayed for?
(7) What Order and Decree?
(8) Whether the Defendant proves that the Plaintiff was a
tenant of the mortgagee and that his tenancy rights ended
after the property became mortgage free?"
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11. Amongst aforesaid issues, nos.1,2,3 are answered in
'affirmative', issue nos.4,5 and 7 are answered in 'negative', issue
no.6 is answered in partly affirmative and issue no.8 is answered
as per final order.
12. Another set of issues were framed by learned Trial Court at
Exh.28 which reads as under (it is in Gujarati, for better
understanding it is translated in English) :-.
"(1) Whether the Plaintiff proves that, being a tenant, he
has been the possessor and occupant of the place in
question since 1962 and prior to the earthquake
(2) Whether the Plaintiff proves that the Defendant
obtained construction aid by illegally representing that, he
alone was the owner and possessor?
(3) Whether the Plaintiff proves that the Defendant has no
right or authority to carry out any kind of construction at the
place in question without the consent of the Plaintiff?
(4) Whether the Plaintiff proves that the Defendant has no
authority to rent out the place/house in question to anyone
other than the Plaintiff?
(5) Whether the suit of the Plaintiff is barred by any legal
provision?
(5-a) Whether the Defendant proves that the Plaintiff was a
tenant of the mortgagee and that his tenancy rights ended
after the property became mortgage free?
(6) Whether the Plaintiff is entitled to get the reliefs as
prayed for?
(7) What Order and Decree?"
13. Instead of clubbing the issues with aforesaid issue, learned
Trial Court appreciated this issue independently and answered
them separately. Issue no.1 was answered in affirmative, issue
nos.2,3,4,5,5(a) were answered in negative, issue nos.6 was
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answered in partly affirmative and issue no.7 was answered as
per final order.
14. It appears that learned Trial Court framed as many as 14
issues, however, discussed the same by common reasons instead
dealing them independently. Perusal of reasons assigned by
learned Trial Court it appears that learned Trial Court has given
go by to the theory of mortgagor and mortgagee and redemption
of mortgage which discontinue plaintiff's right to remain in suit
property. Apt to note that after discussing the issues, learned
Trial Court straightaway came to conclusion that right of
plaintiff cannot be foreclosed by redemption of mortgage and
passed final judgment and order stated herein-above.
15. The fact which is undisputed that suit property was
mortgage property and plaintiff claimed that he has been
inducted as tenant by mortgagee. Admittedly, redemption took
place and one Manjodi Kasam become owner by sale deed dated
18.07.2022 and some consent decree was also filed.
16. In the aforesaid aspects what could be noticed that
mortgage deed executed between mortgagor and mortgagee was
never placed on record during trial as evidence, therefore, it is
not evident on record that by which terms and conditions
mortgage deed was executed between mortgagor and mortgagee
and whether mortgagee was permitted to induct third party as
tenant. When issue was put to the notice of learned advocate Mr.
Panari, he could not answer said issue. Learned Appellate Court
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while reversing the judgment of learned Trial Court in para 7.1
to 7.5 has ascribed following reasons :-
"(7.1). It is admitted fact that the suit property was
mortgaged property and the Plaintiff is the tenant of the
mortgagee. The Plaintiff has produced the payment receipt
at Exh.-74 to Exh.-76 issued by Bhuj Municipality with
regards to payment of water supply and drainage charges
and the tax of the property. The said receipts are of year
2000 and 2002. No other receipt of payment is being
produced either of earlier or at later stage. The property tax
assessment of year 1988-89 is produced at Exh.-77,
wherein the name of the occupier is being stated as Sumra
Jakab Ibrahim and in the name of the owner, it is stated as
Langha Umar Karim Mamad. The Plaintiff has relied upon
the Order dated 18/12/1992 of the Hon'ble High Court at
Exh.-70 to establish that he was tenant of the premises. The
said litigation is against the legal heirs of Umar Karim
Mamad. It is admitted by P.W. No. 1 - Yakub Sumra Ibrahim
in his cross- examination on page 6 at Exh.-31 that the
owner of the suit property was Umar Karim Mamad. Thus, it
is admitted fact that the Plaintiff had taken property from
Umar Karim and their legal heirs on rent. Now Umar Karim
Mamad is the mortgagee of the property.
(7.2). The Ld. Advocate for the Defendants has drawn
attention of this Court on page No. 6 at Exh.-81, which is a
compromise decree of Regular Civil Suit No. 262/1982,
wherein, it is stated that the property was mortgaged to the
Defendants in said suit. The ancestor of the Defendants in
that suit is Umar Karim Mamad and the Plaintiff in that suit
is legal heirs of Sumra Mariyam Jamal. Thus, it is crystal
clear that Umar Karim Mamad is the mortgagee of the suit
property and the Plaintiff was tenant of Umar Karim Mamad
(mortgagee). The Ld. Advocate for the Plaintiff has
vehemently argued that the Plaintiff was not party in
Regular Civil Suit No. 262/1982. The Ld. Advocate for the
Defendant has correctly argued that the Plaintiff is
mortgagee's tenant and not of mortgagor and therefore he is
not necessary and property party in said suit for redemption
of mortgage property. The Ld. Advocate for the Plaintiff has
vehemently argued that the Hon'ble High Court has
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accepted plea of Plaintiff as tenant. It is true but tenant of
mortgagee and not of mortgagor and hence he can't get any
protection.
(7.3). The issue in dispute will be whether tenant of
mortgagee will have right after redemption of the mortgaged
property. Admittedly, there is no contract between the
Plaintiff and the mortgagor (owner of the suit property). On
the analogy of the contractual tenant, the tenant are entitled
to protection under the Act. Admittedly, there is no contract
between the Plaintiff and the mortgagor and therefore, the
question does not arise for terminating the contractual
tenancy. The limited estate created in favour of the
mortgagee having disappeared all rights emanating from
that limited estate disappear and the superior right of the
mortgagor comes not in place of the mortgagee but as a
result of an independent title and as such the mortgagor
cannot be bound by any act created or any relationships
contracted between the mortgagee and the tenant, unless it
is permitted by the mortgage- deed. As per terms of decree
at Exh.-81, the mortgagees have to redeem the property in
favour of the mortgagor and the redemption / sale deed is at
Exh.-79. Thus, when the mortgagee himself does not have
any right creating from the mortgage, then the Plaintiff /
tenant will have no right more particularly when there is no
contract of tenancy between the Plaintiff and the mortgagor.
Admittedly, the Plaintiff has not produced any document
either mortgage deed or any other document to show that
the mortgagor had agreed to induct the Plaintiff as a tenant.
Unless such agreement had with the mortgagor, the tenant
cannot claim protection under the Bombay Rents, Hotel and
Lodging House Rates (Control) Act, 1947, against the
mortgagor and his right remains against the mortgagee only
till the mortgagee have right in the suit property. Once the
mortgagee has released his right by re-conveyance deed /
redemption deed in favour of the mortgagor, the right of
tenant inducted by the mortgagee also comes to an end and
he cannot be given any protection under Bombay Rents,
Hotel and Lodging House Rates (Control) Act, 1947, against
the mortgagor, which is a well settled law. Unless the
Plaintiff has said pleading and proved evidence that he has
contracted with the mortgagor or in the mortgage deed
Plaintiff was permitted to be tenant, such tenant of
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mortgagee can not get right and not otherwise, on the
redemption of the property. Admittedly, the Plaintiff has not
produced any such document, wherein the mortgagor or her
legal heirs consented or agreed to induct the Plaintiff as
tenant and therefore, the Plaintiff cannot get protection
against the mortgagor.
(7.4). The Ld. Advocate for the Defendants has relied on the
decision delivered by the Hon'ble Supreme Court (Coram :
Hon'ble Justice Sabyasachi Mukharjee and Hon'ble Justice
S. Ranganathan, JJ) in case of 1CARONA SHOE COMPANY
Ltd. Vs. K. C. BHASKARAN NAIR (AIR 1989 SC 1110) ,
wherein observed that when the mortgagee is in possession
and tenant is inducted and when there is no terms in
mortgage that mortgagee could induct tenant, who can
continue to possess the premise even after expiry of
mortgage and when the mortgage is redeemed, then it is
held that the tenant inducted by mortgagee is not entitled to
get protection under Rent Act and the Landlord mortgagor is
entitled to recover the possession.
(7.5). In view of the reasons stated here-in-above, evidences
on record and settled principle of law, it is proved that the
mortgagee's tenant (Plaintiff), inducted by mortgagee
without consent of mortgagor, has no right to suit property
after redemption of mortgaged property, in absence of such
contract with mortgagor and therefore I answer the POINT
No. 1 in AFFIRMATIVE."
17. What also could be noticed that in devastated earthquake,
suit property has been destroyed. As of now there is no new
construction. Learned advocate Mr. Paneri failed to point out any
new construction on the suit property.
18. Vehemently, it was argued by learned advocate Mr. Paneri
that learned Appellate Court has lost sight of section 5(3), 5(8),
5(11) and 11(B) of the Rent Act is concerned, however, to be
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noted that those can be pressed into service only when plaintiff
successfully proves that there exists relationship between
landlord and tenant between the parties. In the present case,
undisputedly, plaintiff and mortgagee of the suit property had
some relationship through which plaintiff was inducted in the
suit property but his right to remain in possession of suit
property extinguish on redemption of mortgage. Undoubtedly,
there is no legal relationship of any kind ever created or existed
between owner of suit property who was also mortgagor, learned
advocate Mr.Paneri could not point out any evidence to showcase
legal relationship between plaintiff and mortgagor. Plaintiff's
entire case runs on the facts that his possession of suit property
obtained from mortgagor extent even to mortgagor on
redemption of mortgage. However, such plea in absence of
evidence lacks merits. It is also needed to observe that plaintiff
failed to prove under which capacity he his holding possession of
whole suit property. He has produced nothing except receipt of
payment in the year 2002, receipt of payment of local tax in the
year 2000 and 2002. Thus, there is complete missing of legal
documents. Thus these series of reasons decline this Court to
entertain Second Appeal.
19. This Court in the case of LH of Harji Murji, Gami Ramji
Harji Gami v/s. Shamji Ratna Arjan Bhudiya [2024 LawSuit (Guj)
1040], referring to dictum of Hon'ble Apex Court in para 7 and in para
10 held as under :-
"7. In Narayananan Rajendran v/s. Lekshmy Sarojini
[(2009) 5 SCC 264], the Hon'ble Apex Court has examined
scope of Second Appeal prior to amendment and post
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amendment. After referring catena of judgments, in para 38
to 42, the Hon'ble Apex Court has held as under :-
"38. "66.The primary cause of the accumulation of
arrears of second appeal in the High Court is the laxity
with which second appeals are admitted without
serious scrutiny of the provisions of Section 100 C.P.C.
It is the bounden duty of the High Court to entertain
second appeal within the ambit and scope of Section
100 C.P.C.
67. The question which is often asked is why should a
litigant have the right of two appeals even on
questions of law? The answer to this query is that in
every State there are number of District Courts and
courts in the District cannot be final arbiters on
questions of law. If the law is to be uniformly
interpreted and applied, questions of law must be
decided by the highest Court in the State whose
decisions are binding on all subordinate courts."
Rationale behind permitting second appeal on question
of law:
39. "68. The rationale behind allowing a second
appeal on a question of law is, that there ought to be
some tribunal having a jurisdiction that will enable it
to maintain, and, where necessary, re-establish,
uniformity throughout the State on important legal
issues, so that within the area of the State, the law, in
so far as it is not enacted law, should be laid down, or
capable of being laid down, by one court whose
rulings will be binding on all courts, tribunals and
authorities within the area over which it has
jurisdiction. This is implicit in any legal system where
the higher courts have authority to make binding
decisions on question of law.
69. The analysis of cases decided by the Privy Council
and this court prior to 1976 clearly indicated the scope
of interference under Section 100 C.P.C. by this
Court. Even prior to amendment, the consistent
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position has been that the courts should not interfere
with the concurrent findings of facts.
70. Now, after 1976 Amendment, the scope of Section
100 has been drastically curtailed and narrowed
down. The High Courts would have jurisdiction of
interfering under Section 100 C.P.C. only in a case
where substantial questions of law are involved and
those questions have been clearly formulated in the
memorandum of appeal. At the time of admission of
the second appeal, it is the bounden duty and
obligation of the High Court to formulate substantial
questions of law and then only the High Court is
permitted to proceed with the case to decide those
questions of law. The language used in the amended
section specifically incorporates the words as
"substantial question of law" which is indicative of the
legislative intention. It must be clearly understood that
the legislative intention was very clear that legislature
never wanted second appeal to become "third trial on
facts" or "one more dice in the gamble". The effect of
the amendment mainly, according to the amended
section, was:
(i) The High Court would be justified in admitting the
second appeal only when a substantial question of
law is involved;
(ii) The substantial question of law to precisely state
such question;
(iii) A duty has been cast on the High Court to
formulate substantial question of law before hearing
the appeal;
(iv) Another part of the Section is that the appeal shall
be heard only on that question.
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 C.P.C. 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
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to feel that a decree following upon a gross
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.
72. When Section 100 C.P.C. is critically examined
then, according to the legislative mandate, the
interference by the High Court is permissible only in
cases involving substantial questions of law.
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
74. The High Court seriously erred in interfering with
the findings of facts arrived at by the trial court and
affirmed by the first appellate court.
40. The scope of interference by the High Court in
second appeal under section 100 CPC after 1976
Amendment is strictly confined to cases involving
substantial questions of law. The High Court would
not be justified in dealing with any second appeal
without first formulating substantial question of law.
The High Court would not be justified in dealing with
any second appeal without first formulating
substantial question of law. The legislative intention
has been clearly spelt out in a series of cases of this
court.
41. In Gurdev Kaur (supra), this court exhaustively
dealt with the cases before and after
1976 Amendment of CPC. This court clearly observed
that the scope and ambit of section 100 CPC has
been drastically changed after the amendment.
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42. It is a matter of common experience in this court
that despite clear enunciation of law in a catena of
cases of this court, a large number of cases are
brought to our notice where the High Court
under section 100 CPC are disturbing the concurrent
findings of fact without formulating the substantial
question of law. "
10. Thus, it is admitted position that in Second Appeal
jurisdiction of the High Court is confined to substantial
question of law, a finding of fact is not open to challenge in
second appeal, even if the appreciation of evidence is
palpably erroneous and the finding of fact is incorrect as
held by Hon'ble Apex Court in the case of V. Ramachandra
Ayyar v/s. Ramalingam Chettiar [AIR 1963 SC 302].
20. Recently, in the case of Suresh Lataruji Ramteke v/s.
Sau. Sumanbai Pandurang Petkar [2023 Live Law (SC) 821],
the Hon'ble Apex Court in para 27 observed following :-
"27. The questions of law raised in the instant appeal are
answered as under :
27.1 A Court sitting in second appellate jurisdiction is to
frame substantial question of law at the time of admission,
save and except in exceptional circumstances. Post such
framing of questions the Court shall proceed to hear the
parties on such questions, i.e., after giving them adequate
time to meet and address them. It is only after such hearing
subsequent to the framing that a second appeal shall come
to be decided.
27.2 In ordinary course, the High Court in such jurisdiction
does not interfere with finding of fact, however, if it does
find any compelling reason to do so as regard in law, it can
do but only after perusing the records of the Trial Court, on
analysis of which the conclusion arrived at by such a Court
is sought to be upturned. In other words, when overturning
findings of fact, the Court will be required to call for the
records of the Trial Court or if placed on record, peruse the
same and only then question the veracity of the conclusions
NEUTRAL CITATION
C/SA/6/2021 ORDER DATED: 06/11/2025
undefined
drawn by the Court below."
21. Applying above dictum on scope of second appeal under
section 100 of CPC and for the foregoing reasons, this Court is of
the opinion that the appellant has failed to make out case, as no
substantial question of law emerges. Thus, the Second Appeal is
dismissed at admission stage. Record and Proceedings, if any, be
send back to learned Trial Court.
In view of above, connected Civil Application also
stands disposed of.
(J. C. DOSHI,J)
SATISH
