Gujarat High Court
Shri Yogeshwar Trading Company vs Ashish Pravinbhai And Company on 24 November, 2025
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C/SA/547/2024 ORDER DATED: 24/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 547 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 547 of 2024
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SHRI YOGESHWAR TRADING COMPANY
Versus
ASHISH PRAVINBHAI AND COMPANY & ORS.
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Appearance:
ARCHITA M PRAJAPATI(8241) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 24/11/2025
ORAL ORDER
1. The present Second Appeal, invoking the appellate jurisdiction
of this Court under Section 100 of the Code of Civil Procedure,
1908, is directed against the judgment and decree dated 23.08.2024
rendered by the learned 2nd Additional District Judge, Visnagar in
Regular Civil Appeal No.34 of 2019, whereby the appellate Court
affirmed the judgment and decree dated 20.07.2019 passed by the
learned Principal Senior Civil Judge, Unjha in Special Civil Suit
No.4 of 2018 (originally Special Civil Suit No.14 of 2005). The
appellants, therefore, seek quashment of both the impugned
judgments and decrees, coupled with a consequential direction to
remit the matter to the learned Trial Court for a fresh adjudication on
merits in accordance with law.
2. Shorn of superfluity, the factual matrix reveals that the
respondent-original plaintiff, Ashish Pravinbhai and Company,
through its proprietor Pravinbhai Babaldas Patel, instituted Special
Civil Suit No.4 of 2018 seeking recovery of Rs.18,00,000/- from the
present appellant (original defendant No.1). The suit was essentially
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founded upon an alleged financial transaction said to have created a
legally enforceable debt in favour of the plaintiff. The learned
Principal Senior Civil Judge, Unjha, after trial, partly decreed the
suit and directed the appellant to pay the aforesaid sum with interest
at the rate of 6% per annum from the date of institution of the suit,
notwithstanding the appellant's contention that the plaintiff had
neither proved the alleged loan nor produced the mandatory
documentary evidence as contemplated under Order VII Rule 17 of
the CPC.
2.1. Aggrieved thereby, the appellant preferred Regular Civil
Appeal No.34 of 2019 before the learned 2nd Additional District
Judge, Mehsana at Visnagar. The Appellate Court, however,
affirmed the findings and decree of the learned Trial Court, without
addressing the appellant's grievance regarding non-framing of
requisite issues and the consequential non-compliance of Order XLI
Rule 31 of the CPC. The appellant's further contention that the
alleged debt of Rs.18,00,000/- was not proved by cogent oral or
documentary evidence was also not examined in proper perspective,
leading to the present Second Appeal under Section 100 of the CPC.
3. Present Second Appeal raises following substantial questions
of law:-
"a. Whether the Ld. Appellate Judge committed Substantial
error of law in excluding mandatory provision contained in
Order 41, Rule 31 of the Code of Civil Procedure by not
framing the real points of determination arising in the
Appeal?
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b. Whether the Ld. Trial Court during the Trial and the La.
Appellate Judge committed Substantial error of law in not
appreciating the Evidence produced by the Defendant -
Appellant herein while deciding the Appeal as the last fact
finding Court?
c. Whether the Ld. Trial Court and the First Appellate Court
are in manifest error in allowing the Suit on the basis of
Secondary Evidence wherein the material primary evidence
such as Ledger, Account Book, Balance Sheet are not placed
on record by the Plaintiff to prove Legal Debt of the Original
Defendant - Appellant herein as required under Order 7 Rule
17 of Civil Procedure Code and Section 34 of Indian
Evidence Act?
d. Whether the Ld. Trial Court and the Ld. Appellate Court
committed substantial error in identifying the Legal Status of
the Original Plaintiff?
e. Whether the Ld. Appellate Judge committed substantial
error of law in confirming the Judgement and Decree of the
Trial Court which has presumed the Legal Debt of the
Appellant herein towards the Original Plaintiff without
appreciating evidence on record and merely on the basis of
submission of Secondary Evidence?"
4. Learned counsel for the Appellant, adverting to the seminal
legal issues arising in the factual milieu, has vehemently contended
that the impugned Judgement and Decree passed by the Ld. First
Appellate Court is vitiated sub silentio, being rendered in palpable
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disregard of the mandate of Order XLI Rule 31 of the Code of Civil
Procedure, 1908. It is urged that the First Appellate Court, which is
the final Court on facts, was indubitably under a statutory obligation
to frame appropriate points for determination, marshal the evidence,
and record independent findings thereon. In absence whereof, the
very foundation of the adjudication crumbles. The Ld. Appellate
Court, instead of exercising its jurisdiction with the requisite
circumspection, has mechanically affirmed the decree of the Trial
Court, without any application of judicial mind, thereby attracting
interference under Section 100 CPC.
4.1. It is further canvassed that the Ld. Appellate Court has
egregiously failed to advert to the written as well as oral submissions
painstakingly advanced on behalf of the Appellant. The Written
Submissions, heretofore placed before the Appellate Court, have not
merely been overlooked but appear to have been completely
disregarded, a lapse which, according to learned counsel, strikes at
the life-blood of appellate adjudication.
4.2. Learned counsel next submitted that the Original Plaintiff has
not established the foundational facts pleaded in the plaint, and the
Trial Court, as well as the Appellate Court, have concurrently erred
in decreeing the suit sans cogent proof of the alleged legal debt of
Rs. 18,00,000/-. It was categorically pointed out that the Plaintiff
had averred in the plaint that the demised premises were let out by
him to the Appellant; however, in his own cross-examination, the
Plaintiff has admitted that the property belonged to one Babaldas
Hargovandas Patel, to whom the Appellant was regularly paying
rent. Ergo, the assertion of the Plaintiff that he was the landlord of
the Appellant is patently false and stands vetted on the touchstone of
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cross-examination, nay, stands demolished on the anvil thereof. The
very substratum of the Plaintiff's claim, therefore, pales into
insignificance.
4.3. It is urged that both Courts below have failed to appreciate that
no documentary evidence whatsoever, as mandated under Order VII
Rule 17 CPC, has been produced by the Plaintiff to substantiate his
alleged proprietary capacity. No certificate under the Shops and
Establishments Act, no partnership deed, and no proof of
proprietorship were brought on record. In fact, the Plaintiff has
unequivocally admitted in Exh. 106, para 3 of his cross-examination,
that he is not the proprietor of the concern in whose name the suit is
filed. The Courts below, however, have failed to frame even a
rudimentary issue as to whether the Plaintiff is a proprietary concern
or otherwise, resulting in a fatally flawed adjudication.
4.4. Learned counsel further submitted that the findings recorded
by the Courts below are wholly per incuriam, having been rendered
in disregard of the statutory scheme and settled principles governing
proof of debts and the burden upon a plaintiff. It is submitted that the
decree of Rs. 18,00,000/- with interest at 6% per annum has been
passed in vacuo, with no evidence demonstrating the existence of
any legal, enforceable liability. The judgments impugned do not
withstand judicial scrutiny and, in view of the prevenient
ratiocination, the present Second Appeal raises substantial questions
of law warranting admission.
5. I have heard the learned advocate appearing for the Appellants
and have meticulously perused the material placed on record.
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6. It emerges from the factual matrix that the plaintiff's suit is
predicated upon four cheques allegedly issued in favour of the
defendant, aggregating to a sum of Rs. 18,00,000/-, and the plaintiff
seeks restitution of the said amount from the defendant. To
substantiate the claim, the plaintiff has produced Exhibits 46 to 50,
purporting to demonstrate that the cheque particulars delineated in
paragraph 1.3 of the plaint were indeed issued in favour of the
defendant, and that the amounts mentioned therein were duly
realised by the defendant. A balance sheet at Exhibit 51, pertaining
to the accounting period commencing from 01.11.2004 to
31.11.2004, purportedly belonging to the plaintiff, has also been
adduced to fortify the transactional narrative averred in the plaint.
6.2 The learned Trial Court, upon an appraisal of the rival
pleadings, has been pleased to frame the issues at Exh.26, which
read thus:--
"a)Whether the plaintiff has proved that he paid a
sum of Rs.18,00,000/- to the defendants through
five different cheques as mentioned in his claim?
b)Whether the plaintiff is entitled to interest at the
rate of 18% per annum on the outstanding
amount?
c)Whether the plaintiff is entitled to a decree of
permanent injunction as sought in his claim?
d)What order or decree?"
7. The Issue No.1 stands answered in the affirmative, whereas Issue
No.2 is returned in a partly affirmative vein. The plaintiff has been
declared entitled to recover a sum of Rs.18,00,000/- from Defendant
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Nos.1 and 2, together with interest at the rate of 6% per annum. The
lis, shorn of non-essential details, is a simple money suit emanating
from commercial transactions effectuated between the parties
through cheques. The issuance and subsequent realization of the
cheques in favour of Defendant Nos.1 and 2 stand indubitably
proved, their testimonies having been tested on the anvil of cross-
examination.
7.2. It was contended that Exhibit 73, having the character of an
electronic record, could not be admitted in evidence in the absence
of a certificate mandated under Section 65B of the Indian Evidence
Act, 1872. The said argument, however, pales into insignificance in
light of the fact that Exhibit 73 stands duly proved through the
deposition of the defendants' own witness, who entered the witness
box at Exhibit 146. The learned Trial Court has comprehensively
and cogently examined this contention and rendered a pellucid
finding thereon. The Learned Appellate Court, in seisin of the
matter, has revisited the judgment and decree in the backdrop of the
evidence adduced before the learned Trial Court and found no
infirmity warranting interference.
8. In Gurbachan Singh (Dead) through Legal Representatives
v. Gurcharan Singh (Dead) through Legal Representatives and
Others, (2023) 20 SCC 104, the Hon'ble Supreme Court has held as
under:--
"7. The parameters of an appeal under Section 100, CPC
passing muster are well established. The section itself
dictates that such an appeal shall only be maintainable when
the case involves a substantial question of law or that the
appellate decree has been passed ex parte. the latter,
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obviously is not the case. This court has, in a multitude of
decisions, expounded on what may be termed as a
substantial question of law to satisfy the requirements of
section 100.
xxx xxx xxx
14. The principles of law cited herein may be
undoubtedly good law, but, however, in the considered view
of this court, they do not hold in the case put forward by the
Appellant. A perusal of the witness statements of DW3 as
duly recorded by the High Court, (the court also relies on the
cross examination portions of DW4 although the same do
not form part of the record before this court.) shows that
father of the Appellant had indeed partitioned the property
during his lifetime. In such situation selling a part of his
share in an undivided property, is a question that does not
arise. Reliance on Shyam Sunder (supra) does not support
the case of the Appellant as there is nothing on record to
reflect any effort having been made by him to substitute
himself in place of the Respondents in buying the 4 marlas
of land from Faqir Singh in order to keep a stranger, namely
Gurcharan Singh from entering into familyowned property.
Had the Appellant made any such effort and the same would
be reflected from record, then it could have been argued that
he has a right to exclude the Respondents.
15. As already noted above, another ground of objection
taken by the Appellant is the fact of the impugned judgement
entering into a reappreciation of evidence. While it is true
that ordinarily, in second appeal, the court must not disturb
facts established by the lower court or the first appellate
court. However, it is also equally well recognised that this
rule is not an absolute one or in other words, it is not a rule
set in stone."
9. It would be most apposite to advert to the authoritative and
seminal pronouncement of the Hon'ble Supreme Court in Nazir
Mohamed v. J. Kamala and Others, Civil Appeal Nos. 2843-2844
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of 2010, wherein, in Para 37, the Apex Court has lucidly and
categorically enunciated the legal position in the following terms:-
"37. The principles relating to Section 100 CPC relevant for
this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a
document is a question of fact, but the legal effect of the
terms of a document is a question of law. Construction of a
document, involving the application of any principle of law,
is also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a
question of law.
(ii) The High Court should be satisfied that the case involves
a substantial question of law, and not a mere question of law.
A question of law having a material bearing on the decision
of the case (that is, a question, answer to which affects the
rights of parties to the suit) will be a substantial question of
law, if it is not covered by any specific provisions of law or
settled legal principle emerging from binding precedents,
and, involves a debatable legal issue.
(iii) A substantial question of law will also arise in a
contrary situation, where the legal position is clear, either on
account of express provisions of law or binding precedents,
but the Court below has decided the mat-ter, either ignoring
or acting contrary to such legal principle. In the second type
of cases, the substantial question of law arises not because
the law is still debatable, but because the decision rendered
on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere
with the concurrent findings of the Courts below. But it is
not an absolute rule. Some of the well-recognised exceptions
are where i) the courts below have ignored material evidence
or acted on no evidence; ii) the courts have drawn wrong
inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast the burden
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of proof. A decision based on no evidence, does not refer
only to cases where there is a total dearth of evidence, but
also refers to case, where the evidence, taken as a whole, is
not reasonably capable of supporting the finding."
10. In the aforesaid conspectus, and in light of the pellucid
enunciation of law by the Hon'ble Apex Court, this Court is of the
considered view that no substantial question of law arises for
determination in the present matter. Ergo, this Court finds no
justifiable reason to admit the Second Appeal.
11. For the reasons aforestated, the present Second Appeal,
having failed to demonstrate the existence of any substantial
question of law within the meaning of Section 100 of the Code of
Civil Procedure, merits no indulgence of this Court. Consequently,
the second appeal stands DISMISSED in limine at the admission
stage.
12. Let the record and proceedings, if received, be forthwith
remitted to the learned Trial Court concerned for consequential
action in accordance with law.
(J. C. DOSHI,J)
MANISH MISHRA
