The Branch Manager vs T.Mohan Kumar
2021 Latest Caselaw 15218 Mad

                                                                                  S.A.No.690 of 2020




                               IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                 Dated : 29.07.2021
                                                       Coram
                                THE HONOURABLE MR. JUSTICE M.SUNDAR

                                                S.A.No.690 of 2020

                 1. The Branch Manager
                    LIC of India
                    CNA Road, Vaniyambadi

                 2. The Manager
                    LIC of India
                    Zonal Office, Arcot Road
                    Vellore – 632 004                                 .. Appellants

                                                          Vs.

                 T.Mohan Kumar                                        .. Respondent

                           Second Appeal filed under Section 100 of the Code of Civil Procedure,
                 1908 to set aside the judgment and decree dated 12.11.2019 passed in
                 A.S.No.2 of 2019 on the file of III Additional District Judge, Vellore @
                 Tirupattur confirming the judgment and decree dated 13.02.2019 passed in
                 O.S.No.30 of 2013 on the file of the Sub-Judge, Vaniyambadi.


                           For Appellants          :     Mr.D.Muthukumar
                           For Respondent          :     Mr.Arun Anbumani




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                                                                                 S.A.No.690 of 2020




                                                  JUDGMENT

Yesterday, the lis which has led to the captioned second appeal

completed four months past eight years. To put it differently, a plaint was

presented 8 years and four months ago i.e., on 28.03.2013 on the file of 'Sub-

Court, Vaniyambadi' ('trial Court' for the sake of convenience and clarity) and

the same was taken on file as O.S.No.30 of 2013.

2. The plaintiff is a small time groceries merchant eking out his

livelihood by selling groceries and the case file shows that he has a very

modest turnover.

3. The suit was filed against the Branch Manager (Vaniyambadi) and

Manager (Vellore) of LIC arraying them as Defendants 1 and 2 respectively,

for the sake convenience and clarity, from hereon parties will be referred to

by their respective ranks in the trial Court. The defendants will also be

collectively referred to as 'LIC' (standing for 'Life Insurance Corporation of

India' for the sake of convenience and clarity).

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4. Before I plunge into the matter, it may be necessary to capture and

set out the trajectory the matter has taken in this second appeal Court. On

06.01.2021, this Court ordered notice returnable by 17.02.2021. To be

noted, protagonist of captioned second appeal is LIC and plaintiff is

obviously the lone respondent. Respondent was served and respondent

entered appearance through counsel. The captioned second appeal has not

been admitted. It is listed today before me under the cause list caption

'NOTICE OF MOTION'.

5. Mr.D.Muthukumar, learned counsel for LIC and Mr.Arun

Anbumani, learned counsel for plaintiff are before this Virtual Court. In the

light of the aforementioned trajectory the captioned second appeal has taken,

both the learned counsel agreed that the captioned second appeal can be

taken up and heard out. This means that LIC has to first make out a case for

admission. If that happens, the second appeal will be heard out on the

substantial question of law. If that not be so, the second appeal will be

carried to its logical end. On this basis, the matter was heard out.

6. After having briefly set out the trajectory the captioned second

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appeal has taken, I now revert to the factual matrix. Aforementioned suit filed

by the plaintiff in the trial Court was with a prayer claiming a sum of

Rs.2,25,000/- together with interest and this claim is predicated on a Health

Insurance policy bearing reference 735919038 and the policy goes by the

name 'Jeevan Arogya'. This Health Insurance policy was taken/signed up by

the plaintiff on 05.07.2011 and unfortunately, the plaintiff had to undergo a

surgery on 12.07.2012. It is the case of the plaintiff that on 07.07.2012 in

the wee hours of the day (half past three in the morning), when he got out of

bed to go to the bathroom, he developed excruciating pain in his hip

{apparently owing to sudden wrong movement of body in getting out of bed

is learned counsel's say}, plaintiff was rushed to hospitals in Chennai and he

was operated upon on 12.07.2012.

7. Thereafter, the plaintiff made a claim under the aforesaid Health

Insurance policy. It is plaintiff's case that he was tossed around / shunted

from pillar to post and ultimately on 13.02.2013 he was informed that his

claim has been rejected.

8. On being served with suit summons, LIC entered appearance and

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filed a written statement and completed pleadings. In the trial Court, burden

of the song in the two page, nine paragraph written statement of LIC

contained in one sheet (typed on both sides) is that the claim was made

within two years waiting period qua date of signing up for the policy. In

other words, the burden of song of the LIC in its pleadings is that the policy

was taken on 05.07.2011, but surgery was on 12.07.2012, within two years

and this is impermissible vide the terms of the policy. There is also a

pleading that the plaintiff has suppressed pre-existing illness, namely diabetes

and hypertension.

9. On the aforementioned rival pleadings, trial Court framed three

issues. They are captured in paragraph 6 of the trial Court's judgment and

the same reads as follows:

'6. ,e;ePjpkd;wj;jpy; fPH;f;fz;l vGtpdhf;fs; tidg;gl;lJ> mJ

gpd;tUkhW >

1/ 1 kw;Wk; 2 gpujpthjpfs; fhg;gPl;L ghyprpapd; go

thjp nfhhpf;if vJt[k; tpLf;f ,ayhJ vd;gij epU:gpj;Js;shh;fsh>

2/ thjp jhthtpy; nfhhpathW bjhif bgw mUfija[iltuh>

3/ ntW vd;d ghpfhuk;>'

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10. Parties went to trial on the aforementioned three issues. On the

side of plaintiff, he examined himself as PW1 and as many as 25 exhibits,

namely Ex.A1 to A25 were marked. On the side of LIC, one Thulasiraman,

whom this Court is informed, is an Officer of LIC, deposed as DW1, but no

document was filed or marked in the trial Court. After full contest, trial Court

decreed the suit by judgment and decree dated 13.02.2019. LIC carried the

matter in appeal by way of a regular first appeal under Section 96 of 'The

Code of Civil Procedure, 1908' ('CPC' for the sake of brevity) vide A.S.No.2

of 2019 on the file of 'III Additional District Court, Vellore at Tiruppattur'

('first Appellate Court' for the sake of brevity) and the first Appellate Court,

after full contest, dismissed the appeal by judgment and decree dated

12.11.2019 confirming the judgment and decree of the trial Court. LIC,

which has suffered two successive and concurrent decrees in two tiers of

litigation, is now before this second appeal Court vide captioned second

appeal, which is obviously under Section 100 of CPC.

11. Before I proceed further, a tributary development which is of

relevance that needs to be set out is, launching of an Execution Petition by

the plaintiff in E.P.No.99 of 2019 on the file of trial Court, wherein an order

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dated 17.02.2020 directing deposit of 25% of the decree amount was made.

Thereafter, probably because of the execution that was launched (this is

learned plaintiff counsel's say) captioned second appeal was presented in this

Court on 05.03.2020, but the facts and the chronicle is clear that captioned

second appeal has been presented in this Court on 05.03.2020 after

aforementioned order by the Execution Court directing LIC to deposit 25% of

the decretal amount. Thereafter, the course which the captioned second

appeal took or the trajectory the captioned second appeal took before Hon'ble

predecessor Judge in this second appeal Court has been captured elsewhere

supra in this judgment.

12. Notwithstanding very many grounds and very many averments, in

the memorandum of grounds of second appeal, learned counsel for LIC

confined his submissions to following aspects and a summation of the same

is given below:

a) The plaintiff was operated upon for a hip disc

(displacement) and this is excluded from the policy;

b) The claim has been made by the plaintiff within two year

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waiting period and therefore, plaintiff is not entitled to the

insurance claim;

c) The plaintiff has suppressed existing illness i.e., diabetes

and hypertension.

13. To be noted, in the light of submissions in the oral hearing today in

this Virtual Court, captioned second appeal is being heard out on the above

points notwithstanding several grounds adumbrated in the memorandum of

grounds of appeal. Therefore, this Court restricts its discussion and

dispositive reasoning to the above points which were focussed and argued

before this second appeal Court. In other words, nothing contained in

memorandum of grounds of appeal, outside of the above was focussed before

this Court.

14. In response to the above submissions of learned counsel for LIC,

learned counsel for plaintiff made submissions, which runs as follows:

a) There is no pleading that it is an excepted or excluded

disease;

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b) It was a clear case of accident and not a consequence of

an adventure as the plaintiff woke up in the wee hours on

07.07.2012 and probably the manner in which he woke up or he

twisted himself resulting in the injury/condition leading to the

surgery.

15. In reply to the above submissions learned counsel for LIC

submitted as follows:

a) In the deposition, PW1 had denied a suggestion put to him

regarding suppression;

b) The decretal amount is above the sum assured and this has

been raised and considered before the Courts below.

16. This Court now embarks upon the exercise of discussion and giving

its dispositive reasoning.

17. The first point turns on whether it is an excluded ailment. For this

purpose, one may have to turn to the policy. Learned counsel for LIC has

placed before this Court an additional typed-set of papers dated 09.02.2021

containing conditions and privileges of the policy and Health policy

application of the plaintiff. This is a 23 page additional typed-set of papers.

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Learned counsel for plaintiff took exception to this. There is nothing to

demonstrate that these were marked as documents before the Courts below.

A perusal of the 25 exhibits which were before the trial Court also does not

help LIC. Faced with this situation, learned counsel for LIC submitted that

he would withdraw this additional typed-set of papers. This submission is

recorded and additional typed-set dated 09.02.2021 running to 23 pages

stands withdrawn. However, there are extracts from the conditions in the

trial Court judgment. Therefore, it may well be possible that the conditions

were before the trial Court and the trial Court has taken judicial cognisance of

the conditions. This is captured in internal pages 7 to 13 of the judgment of

the trial Court. What we are concerned with is the extract under Specific

Waiting Period at page 9. Between (vii) and (ix) there is a jump and there is

no (viii). It is very fairly pointed out by learned counsel for plaintiff that (vii)

is treatment for hip disc and then (viii) is treatment for piles and (vi) is

treatment for Gall stones and this Court proceeds on that basis.

18. A careful perusal of what has been extracted in the trial Court

judgment makes it clear that the general waiting period will apply only if the

hospitalization or surgery occurred due to sickness and that it will not apply

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in case of hospitalization or surgery due to accidental bodily injury. This is a

common preamble to both General Waiting Period and Specific Waiting

period. Therefore, from the narration of facts, this Court is unable to

persuade itself to believe that the approach of trial Court in dealing with this

aspect is exceptionable. The manner in which the trial Court dealt with this

aspect of the matter is articulated in paragraph 11 of the judgment of the trial

Corut, which reads as follows:

'11. ,e;j ePjpkd;wk; nkw;go th/rh/M/25 Mtz ,izg;gpy; Fwpg;gpl;Ls;s epge;jid vz;/5 fhj;jpUg;g[ fhyk; Muha;ifapy; rhjhuzkhf nkw;go rhjhuz fhj;jpUg;g[ fhykhdJ tpgj;jpdhy; Vw;gLk; mWit rpfpr;ir kw;Wk; kUj;Jt rpfpr;irfSf;Fg; bghUe;jhJ/ cly; eyf; Fiwtpdhy; Vw;gLk; kUj;Jt rpfpr;ir mWit rpfpr;irf;F bghUe;Jk; nkw;go rhjhuz fhj;jpUg;g[ fhykhdJ ghyprp vLj;J ehl;fspypUe;J 90 ehl;fs; MFk;/ 2?tJ epge;jid ,e;j tHf;fpw;F bghUe;jhJ nkYk; Fwpg;gpl;L fhj;jpUg;gh fhykhdJ 2 Mz;Lfs; epge;jidahdJ vd;W Fwpg;gpl;l 1 Kjy; 17 rpfpr;ir tiufSf;F fhj;jpUg;g[ fhyk; 2 Mz;Lfs; vd;WW bjspthf Fwpg;gplg;gl;LssJ/ ,e;j tHf;fpy; thjp jdf;F jpObud KJF jz;Ltlj;jpy; typ ,Ue;jjhft[k;. mjdhy;

brd;id mg;nghyh kUj;Jtkidapy; rpfpr;irr vLj;jjhf Twp th/rh/M/15 Mtzk; jhf;fy;bra;Js;shh;/ th/rh/M/15 Mtzj;ij Muha;ifapy; thjpf;F Vw;gl;l jpOh; cly; ghjpg;ghdJ

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th/rh/M/25?y; Fwpg;gpl;Ls;s neha;fSf;F rk;ge;jg;gl;l neha;fSf;F bghUe;Jk; vd;gij gpujpthjp epU:gpj;jpUf;f ntz;Lk;/ Mdhy; gpujpthjp jug;gpy; thjpf;F Vw;gl;l cly; ghjpg;ghdJ Fwpg;gpl;l fhj;jpUg;g[ fhyj;jpy; Fwpg;ghf brhy;yg;gl;Ls;s 17 neha;fSf;fhhd rpfpr;irfSf;Fs; ml';Fk; vd;gij gpujpthjp jug;gpy; epU:g;gpf;ftpy;iy/ nkw;go neha;fSf;Fz;lhd Fwpg;gpl;l fhj;jpUg;g[ fhyk; vd;gJ thjpf;F Vw;gl;l cly; ey nfhshWf;Fk; epge;jid bghUe;Jk; vd;gij gpujpthjpfs; epU:gpf;ftpy;iy vd;gjhy; ,uz;L Mz;Lfs; fhj;jpUg;g[ fhyk; thjpf;F bghUe;jhJ vd;W ,e;j ePjpkd;wk; Kot[ bra;fpwJ/ th/rh/M/2 d; go ghyprpahdJ 05/07/2011y; vLf;fg;gl;Ls;sJ/ ghyprpf;Fz;lhd bjhifa[k; md;iwa jpdnk brYj;jg;gl;Ls;sJ/ thjpf;FF 07/07/2012 md;W jpObud cly;ey ghjpg;g[ Vw;gl;ljhy; tHf;FiuapYk; th/rh/1 rhl;rpaj;jpyk; Fwpg;gplg;gl;Ls;sJ/ vdnt 90 ehl;fs; fhj;jpUg;g[ fhyKk; thjpapd; tHf;if bghUj;J bghUe;jhJ/'

19. The above is unexceptionable as there is nothing to demonstrate

perversity in appreciation of oral and documentary evidence. Therefore, the

first two points urged, namely excluded disease and claim being made within

waiting period, are completely flattened as the wind is taken out of the sails

qua these two arguments.

20. This takes us to the alleged suppression of existing illness (diabetes

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and hypertension). The findings of Courts below are that this has no direct

impact or relevance on the hip disc surgery the plaintiff has undergone and

there is no material to demonstrate that there was wilful suppression. The

first Appellate Court in internal page 11 of its judgment has held 'Hence,

here the burden is on the appellants/defendants to prove that the

respondent/plaintiff suppressed his pre-existing illness, i.e., he has been

suffering from hypertension as well as he is a diabetic patient.' It may not

be appropriate to say that the 'burden' is on the defendants. Burden never

shifts. However, this Court is clear in its mind that what shifted in this case

is the 'onus'. Law is well settled that burden does not shift and it is only onus

that will shift if at all and if that be so and onus (to borrow the language of

Hon'ble Supreme Court) swings like a pendulum from one end of the lis to

the other. Therefore, the moment LIC says that there is suppression and that

is the ground for predicating the rejection of the claim, the onus shifted on

LIC. Nothing prevented LIC from examining a medical expert or producing

any literature in this regard. As already alluded to supra, no document was

either filed or exhibited by LIC in the trial Court. In other words, this is not

something which is so perverse, that absent this error the conclusion of the

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first Appellate Court would have been a bipolar opposite. To be noted, only

in cases where a party is able to demonstrate that conclusion would have

been the exact reverse, bipolar opposite/converse of the conclusion that has

now been arrived at, the second appeal court can interfere, law is well settled

on this aspect and therefore, I do not propose to burden this judgment with

extracts from those judgments as this may make this judgment needlessly

verbose in that aspect of the matter.

21. Turning to deposition of PW1, which was being highlighted by

learned counsel for LIC, relevant portion of the deposition i.e., cross

examination of the PW1 reads as follows:

'.....ghyprp tpjpKiw go 2 tUl fhyk; btapl;o'; gphpal; cs;sJ vd;Wk; mjw;Fs;shf vdf;F ,Ue;j nehia kiwj;J ghyprp vLJ;J nehapd; fhuzkhf vdf;F mWit rpfpr;ir bra;ag;l;ljhy;

ghyprp go ehd;nfhhpf;if tpLf;f ,ayhJ vd;why; rhp my;y/ vy;4 vYk;ghdJ vj;jid Mz;Lfshf bjhe;jutp ,Ue;jJ vd;why; jpobud;W jhd; Vw;gl;lJ/ Vw;fdnt ,Uf;ftpy;iy/ nkw;go vdf;F KJF jz;Ltl gpur;rpid ghyprp vLf;Fk; Kd;ng ,Ue;jJ vd;Wk; Fiwia ghyprpapy; Fwpg;gplhky; vy; I rp apy; Fwpg;gplhky; kiwj;J ghyprp vLj;Js;nsd; vd;why; rhp my;y///////'

22. The suggestion put forth by learned counsel for LIC in the cross

examination has been denied. A suggestion can be denied in monosyllabic

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terms. There cannot be any explanation to the denial of a suggestion. This is

a well established trial Court procedure. Therefore, nothing really turns on

the denial of suggestion by the plaintiff. Regarding diabetes and

hypertension (alleged suppression of existing illness) further findings

returned by the trial Court turning on the same reads as follows:

'Mdhy; jdJ Fwf;F tprhuiz 1tJ gf;fj;jpy; $Ptd; Mbuhf;fpah ghyprp KGf;f KGf;f kUj;Jt fhg;gPl;L rk;ke;jg;gl;lJ vd;W xj;Jf; bfhz;Ls;shh;. MJ Fwpj;J th/rh/M/25?d; jhf;fy; bra;Js;shh;/ $Ptd; Mbuhf;fpah fhg;gPl;L Fwpj;jhd tptu ifnal;il Muha;ifapy; nkw;go $Ptd; Mbuhf;fpah fhg;gPl;L ghyprpahdJ kUj;Jt rk;ge;jg;gl;l ghyprpahfnt fhzg;gLfpwJ/ nkw;go thjp jdf;Fs;s rh;f;fiu neha; kw;Wk; uj;j bfhjpg;g[ nehapid tpz;zg;gj;jpy; brhy;yhky; 1. 2 gpujpthjpfs; epWtdj;ij Vkhw;wpdhh; vd;Wk;. mjdhy; mtUf;F fhg;gPl;L bjhif brYj;j kWj;jJ rhpahdJ vd;W gpujpthjp jug;g[ thjj;jpid ,e;j ePjpkd;wk; Vw;Wf; bfhs;s kWf;fpwJ/ nkYk; gpujpthjp jug;gpy; Kd;dpiyg;gLj;jg;gl;l khz;g[kpF brd;id cah;ePjpkd;wj;jpy; 2010 5 CTC 224 ?y; gpuRhpf;fg;gl;l jPh;g;gpd; go nehf;Fk;bghGJ khz;g[kpF brd;id cah;ePjpkd;wk;. tprhuiz ePjpkd;wk; Kjy; nky;KisaPl;L ePjpkd;wk; mspj;j jPh;g;gpid Ch;$pjk; bra;J thjpf;F Vw;gl;l fhaj;jpw;Fk;. thjpahy; kiwf;fg;gl;ljhf TWk; nehapf;Fk;. ve;j rk;ke;jKk; ,y;iy vd;gjhy; thjpapd; nfhhpf;if Vw;fg;gljf;fbjd;Wk;. gpujpthjpahy;

epuhfhpf;fg;gl;l fhyk; rhpay;y vd;Wk;. khz;g[kpF cah;ePjpkd;wk; tHf;fpy; jPh;g;g[ tH';fpa[s;sJ/ vdnt nkw;go

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khz;g[kpF brd;id cah;ePjpkd;w jPh;g;ghdJ 1. 2 gpujpthjpfSf;F vjpuhft[k;. thjpf;F Mjuthft[k; mike;Js;sJ vd;nw ,e;j ePjpkd;wj;jpw;F njhd;WfpwJ/'

23. The trial Court cannot be faulted by following the precedent i.e.,

2010 5 CTC 224 [Life Insurance Corporation of India and Ors. Vs.

A.Devaki] regarding alleged suppression of existing illness not having any

impact on subject matter injury. This is more so, as there is nothing

demonstrable before this second appeal Court to say that this approach is

exceptionable.

24. Regarding the claim for Rs.2,25,000/-, there was no disputation or

disagreement that this was incurred by the plaintiff and the Courts below

have proceeded on the basis that there is nothing to demonstrate that claim is

restricted to a particular amount. This Court is unable to persuade itself to

believe that this approach is exceptionable. Therefore, I necessarily turn to

the questions which have been proposed as substantial questions of law. They

are five in number and the same read as follows:

'The following substantial question of law arise for consideration in the Second Appeal

1) Whether the courts below can award a sum higher than the agreed amount as per the terms of the agreement?

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2) Whether the courts below are right in granting the decree, despite the facts that the doctrine of “uberrima fidei” has been violated by the insured by not disclosing the pre-existing illness?

3) Whether the courts below are right in concluding that the burden is on the insurer to prove the non applicability of the claim?

4) Whether the courts below are right in granting the decree even after proving that the Slip Disc is having two years waiting period?

5) Whether the decree and judgments of the courts below are sustainable in law when there is an apparent violation of the terms of the contract?'

25. A careful perusal of the aforementioned five questions would reveal

that there is discussion and dispositive reasoning touching upon the same in

this judgment, but the point is, aforesaid questions do not qualify as

substantial questions of law much less substantial questions of law arising in

the case on hand. The reason is the expression 'substantial question of law'

occurring in Section 100 CPC has been elucidatively explained by courts in a

long line of authorities commencing from the celebrated Constitution Bench

judgment in Sir Chunilal Mehta's case [Sir Chunilal V.Mehta and Sons

Ltd., Vs. Century Spinning and Manufacturing Co. Ltd., reported in AIR

1962 SC 1314], which is also known as Century Spinning Mill case. To be

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noted, in Sir Chunilal Mehta's case views taken by a Full Bench of this

Court (Madras High Court) in Rimmalapudi Subba Rao's case

[Rimmalapudi Subba Rao Vs. Noony Veeraju And Others reported in AIR

1951 Madras 969 (FB)] were affirmed. Suffice to say that this continues to

be good law and the obtaining position as Hon'ble Supreme Court has

referred to Sir Chunilal Mehta's case in a long line of authorities

elucidatively explaining the expression 'substantial question of law' occurring

in Section 100 CPC, more particularly in a judgment rendered as recently as

on 27.08.2020 in Nazir Mohamed case [Nazir Mohamed Vs. J.Kamala

reported in 2020 SCC OnLine SC 676]. Relevant paragraphs in Nazir

Mohamed case are paragraphs 29 to 37 and the same reads as follows:

'29. The principles for deciding when a question of law becomes a substantial question of law, have been enunciated by a Constitution Bench of this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd.1, where this Court held:—

“The proper test for determining whether a question of law 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

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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.”

30. In Hero Vinoth v. Seshammal , this Court referred to and relied upon Chunilal v. Mehta and Sons (supra) and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law.

31. The relevant paragraphs of the judgment of this Court in Hero Vinoth (supra) are set out herein below:-

21. The phrase substantial question of law, as occurring in the amended Section 100 CPC 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 2(2006)

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5 SCC 545 shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928 PC 172] the phrase substantial question of law as it was employed in the last clause of the then existing Section 100 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. In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] 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 [AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557) When 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 fact of the case it would not be a substantial question of law.

32. To be substantial, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the

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case and/or the rights of the parties before it, if answered either way.

33. To be a question of law involved 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 Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.

34. Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, as in this case, a second appeal cannot be entertained, as held by this Court in Panchagopal Barua v. Vinesh Chandra Goswami3.

35. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari .

36. In a Second Appeal, the jurisdiction of the High Court being 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 incorrect as held in Ramchandra v. Ramalingam . An entirely new point, raised for the first time, before the High Court, is not a question involved

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in the case, unless it goes to the root of the matter.

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

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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 matter, 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 wellrecognised 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 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.' Applying the above concomitants / determinants qua the expression

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'substantial question of law' occurring in Section 100 CPC, suffice to say that

nothing debatable and nothing that is res integra arises in the case on hand.

There is also nothing to demonstrate that settled principles of law have been

given a go by and have been disregarded. There is also nothing to

demonstrate that there is misconstruction of a document or a wrong

application of a principle of law in construing a document. This in its totality

means that no substantial question of law arises in the case on hand.

26. This takes us to Kirpa Ram principle being principle laid down by

Hon'ble Supreme Court in Kirpa Ram Vs. Surendra Deo Gaur and others

reported in 2020 SCC Online SC 935.

27. Before adverting to Kirpa Ram principle, this Court deems it

appropriate to remind itself about Kanailal principle [Kanailal and Others

Vs. Ram Chandra Singh and Others reported in (2018) 13 SCC 715] by

which Hon'ble Supreme Court telescoped the rigour of Order XLI Rule 31

CPC into a legal drill under Section 100 CPC. In this view of the matter, it

will suffice to say that the lone point for consideration in the captioned

second appeal is whether there is anything so perverse in the judgments of

the Courts below, that absent such perversity a complete reverse conclusion

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would have been the result and whether any substantial question of law arises

in the case on hand. The answer to the first limb of the point for

consideration is, clearly in the negative in the light of the discussion and

dispositive reasoning thus far.

28. The answer to the second limb of point for consideration is also in

the negative, in the light of the discussion supra and particularly that part of

the discussion applying the case laws commencing from celebrated Sir

Chunilal Mehta case law. This brings us back to the Kirpa Ram principle

which is to the effect that a second appeal can be dismissed at the admission

stage without formulating a substantial question of law if none arises.

Drawing inspiration from Kirpa Ram principle in the light of the trajectory

the matter has taken and as already alluded to supra, protagonist of the

captioned second appeal has to first make out a case for admission and this

Court deems it appropriate to hold that no substantial question of law arises

and therefore, captioned second appeal deserves to be dismissed. This draws

the curtains on the eight year four months old lis.

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For clarity, it is set out that captioned second appeal is dismissed at

the admission stage holding that no substantial question of law arises.

Consequently, CMP is also dismissed. Considering the nature of the matter

and the nature of the submissions made before this Court, there shall be no

order as to costs.

29.07.2021

Speaking order: Yes Index: Yes gpa

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To

1. III Additional District Judge Vellore @ Tirupattur

2. The Sub-Judge Vaniyambadi

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M.SUNDAR.J.,

gpa

S.A.No.690 of 2020

29.07.2021

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