Madras High Court

Ponnan vs Velmurugan on 27 April, 2021

S.A.No.410 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.04.2021

CORAM

THE HON'BLE MR. JUSTICE M.SUNDAR

S.A.No.410 of 2021

1.Ponnan
2. Manickam
3.Rajendran
4.Rajeswari
5.Vijaya
Savitha
6. Vijayan ... Appellants

Vs.
1. Velmurugan
2. Sabarathinam
3. Suchitra
4. Elavarasan
5. Dhamodiran
6. Saravanan
7. Sathiyaraj
8.Karunagaran
9. Janaki
10. Gowramma
11. Navaneethammal
12. The District Registrar
District Registration Office
Vellore

1/14

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S.A.No.410 of 2021

13. The Sub Registrar, Office of the SRO
Nethaji Road, Ambur
Vellore Division

Rathina Gounder (died)

14. Sulochana
15. Phandu
16. Rajendran ... Respondents

Second Appeal filed under Section 100 of the Code of Civil
Procedure to set aside the judgment and decree dated 19.12.2019 in
A.S.No.56 of 2016 on the file of Sub Judge, Vaniyampadi, Vellore Dt.,
confirming the judgment and decree dated 31.03.2015 in O.S.No.145 of
2014 on the file of the Principal District Munsif, Ambur, Vellore District.

For Appellant : Mr.S.Kalyanaraman

JUDGMENT

Plaintiffs who were concurrently non-suited by the trial Court and the

first Appellate Court are before this Court by way of captioned second

appeal under Section 100 of 'The Code of Civil Procedure, 1908' ('CPC' for

the sake of brevity). The life of this lis, as of today is more than half a

decade as the plaint was presented in 'Principal District Munsif's Court,

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Ambur' (hereinafter 'trial Court' for the sake of brevity) on 25.09.2014 and

the same was taken on file as O.S.No.145 of 2014.

2. The prayers in the plaint were inter alia for declaration of title and

injunction qua suit property which is punjai agricultural lands. The

defendants, who were served with suit summons, entered appearance

through a counsel and filed a written statement dated 27.10.2014.

3. The plaintiffs' case is that one Seetharaman and one Lakhsmanan

(Seetharaman is father of plaintiffs 1 to 4, father-in-law of 5th plaintiff,

grandfather of 6th plaintiff and Lakshmanan is father of 7th plaintiff)

purchased the suit property from one Narayanasamy Chettiar under a sale

deed dated 12.12.1939. There was some purported hindrance in 2014 from

defendants qua suit property, there was exchange of legal notices and this is

proximate cause of action for the suit is plaintiffs' case. The burden of song

qua defendants pleading is, they do not dispute that the suit property was

purchased by plaintiffs' ancestors Seetharaman and Lakshmanan on

12.12.1939 from one Narayanasamy Chettiar, but Seetharaman and

Lakshmanan had on 11.01.1946 conveyed the suit property for valuable

consideration to defendants' predecessor.

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4. What is of utmost significance is, the plaintiffs did not choose to

file a replication and refute the pleadings in the written statement.

5. To be noted, at the time of filing of the suit, the original 1939 sale

deed and encumbrance certificate were sought for, by way of objections for

numbering the plaint, but the plaintiffs took the stand that it will be

produced later.

6. In the trial Court judgment, there is a reference to I.A.No.474 of

2014. Mr.Kalayanaraman, learned counsel on record for appellants submits

that this interlocutory application is under Order VII Rule 11 of CPC for

rejection of plaint, but the same is not before this Court. It may not be

necessary to embark upon that exercise as trial Court has framed two

preliminary issues, answered both the preliminary issues against the

plaintiffs and non-suited the plaintiffs. Two preliminary issues turn on

abuse of process of law and limitation.

7. Mr.Kalayanaraman, learned counsel appearing on behalf of the

counsel for appellants submits that trial Court, while deciding the

preliminary issues, has looked into the pleadings of the defendants without

trial which is impermissible. Whether a trial Court can frame a preliminary

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issue on the abuse of process of law question is left open and this Court is of

the view that captioned second appeal can be disposed of leaving open this

question as limitation has been framed as the other preliminary issue.

Limitation can certainly be framed as preliminary issue under Clause (b) of

Sub-Rule (2) of Rule 2 of Order XIV of CPC i.e., Order XIV Rule 2(2)(b)

of CPC, which reads as follows:

'(b) a bar to the suit created by any law for the time being

in force, and for that purpose may, if it thinks fit, postpone the

settlement of the other issues until after that issue has been

determined, and may deal with the suit in accordance with the

decision on that issue.'

8. The trial Court has proceeded on the basis that the plaintiffs having

not filed a replication to the plea that plaintiffs' predecessor under whom

plaintiffs are claiming had sold the property to defendants under sale deed

dated 11.01.1946, the plaintiffs also not having chosen to produce the

Encumbrance Certificate, though specifically asked for (obviously if the

Encumbrance Certificate had been produced, this sale deed would have

been reflected in the same, but without going into that arena which may take

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us to arena of conjectures and surmises) noted that plaintiffs did not choose

to file a replication. Therefore, prayer for declaration of title is clearly time

barred is the finding returned by trial Court.

9. To be noted, in a Order VII Rule 11 CPC rejection of plaint legal

drill contra pleadings cannot be looked into as contended by learned counsel

for appellants but that does not apply to deciding a preliminary issue under

Order XIV Rule 2(2)(b) of CPC.

10. When the plaintiffs carried the matter in appeal by way of a

regular first appeal under Section 96 of CPC on the file of 'Subordinate

Judge's Court, Vaniyambadi, Vellore District' (hereinafter 'first Appellate

Court' for the sake of brevity) vide A.S.No.56 of 2016, first Appellate Court

also dismissed the first appeal holding that answer to the preliminary issue

given by the trial Court does not warrant interference.

11. The interesting aspect is, the plaintiffs had not taken any effort to

bring before Court the Encumbrance Certificate though there is a specific

pleadings by the defendants in the aforesaid manner. Even in the regular

first appeal under Section 96 CPC, nothing prevented the plaintiffs from

invoking Order XLI Rule 27 CPC and seeking to bring in the same as

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additional evidence. This was also not done. Therefore, inference drawn by

the Courts below on limitation cannot be found fault with as limitation is a

mixed question of fact and law and there is nothing demonstrable before

this Court that the inference drawn by the Courts below and the findings

returned by the Courts below warrant interference much less interference

qua a legal drill under Section 100 CPC.

12. As the sale deeds are dated 12.12.1939 and 11.01.1946 (not

disputed by replication) suit filed on 25.09.2014 is clearly barred by

limitation and no elaboration qua Articles in Limitation Act is necessary.

13. In this regard, this Court reminds itself that a legal drill under

Section 100 CPC turns of substantial question of law. The expression

'substantial question of law' occurring in Section 100 CPC is not defined in

CPC, but it has been elucidatively explained in a long line of authorities

starting from Rimmalapudi Subba Rao's case [Rimmalapudi Subba Rao

Vs. Noony Veeraju And Others reported in AIR 1959 Madras 969]. This

Rimmalapudi Subba Rao case, which was rendered by a Hon'ble Full

Bench of this Court (Madras High Court) was affirmatively referred to by

Hon'ble Supreme Court in another celebrated judgment in Sir Chunilal

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Mehta's case [Sir Chunilal V.Mehta and Sons Ltd., Vs. Century Spinning

and Manufacturing Co. Ltd., reported in AIR 1962 SC 1314]. This is

neatly captured in Santosh Hazari case [Santosh Hazari Vs. Purushottam

Tiwari (Deceased) by Lrs reported in (2001) 3 SCC 179] and the relevant

paragraph is paragraph 12:

'12. The phrase “substantial question of law”, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying “question of law”, means — of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with — technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance.

In Guran Ditta v. T. Ram Ditta [AIR 1928 PC 172 : 55 IA 235] , the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 110

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CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. [AIR 1962 SC 1314 : 1962 Supp (3) SCR 549] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [ILR 1952 Mad 264 : AIR 1951 Mad 969] :

“[W]hen a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.” and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:

“The proper test for determining whether a question of law

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raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.”'

14. Very recently in Nazir Mohamed case [Nazir Mohamed Vs.

J.Kamala reported in 2020 SCC OnLine SC 676 ], this position has been

reiterated. The term 'substantial' prefixing 'question of law' has been

explained and the expression 'involved in the case' has also been explained.

This Court drawing inspiration from Nizar Ahmed case [Nazir Mohamed

Vs. J.Kamala reported in 2020 SCC OnLine SC 676] and Santosh Hazari

case holds that paramount overall consideration in a legal drill in a Section

100 second appeal is striking a judicious balance between the indispensable

obligation to do justice at all stages and impelling necessity of avoiding

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prolongation in the life of any lis. In this case, latter prevails as there is no

more prolongation of life of this lis, which commenced half a decade ago.

15. In the light of the narrative thus far, the two points for

consideration which arise in the second appeal are:

'a) When limitation has been raised as a preliminary issue

under Order XIV Rule (2)(2)(b) CPC can the Court look into

contra pleadings of adversary to decide the preliminary issue?;

and

b) Whether any substantial question of law arises in the

case on hand?'

16. Limitation is a mixed question of fact and law, but limitation has

to be examined even if it is not set up as a defence as per Section 3 of

Limitation Act. The first point for determination cannot but be answered

against the appellants as contra pleadings cannot be looked into only in

plaint rejection legal drill under Order VII Rule 11 CPC and legal drills akin

to such applications, but that does not apply to a Order XIV Rule (2)(2)(b)

exercise. With regard to the second point for determination regarding

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substantial question of law, this has been explained by long line of