Rajasthan High Court

Ambresh Sharma S/O Laddaram vs Sarad Chand Fadke S/O Late Shri ... on 23 August, 2022

Bench: Sudesh Bansal

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

                S.B. Civil Second Appeal No. 79/2022

  Ambresh Sharma S/o Laddaram, Resident Of House No. 01,
  Sivaji Nagar, Santaji Marg, Brahampuri Road, Jaipur At Present
  Resident Of 123, Balwant Niwas, Getore Road, Brahampuri,
  Jaipur.
                                                                         ----Appellant
                                        Versus
  Sarad Chand Fadke S/o Late Shri Krishanrai Fadke, Resident Of
  House No. 123, Balwant Niwas, Getore Road, Brahampuri, Jaipur.
                                                                       ----Respondent

For Appellant(s) : Mr. M M Ranjan, Sr. Advocate assisted by Mr. Rohan Agarwal For Respondent(s) : Mr. O P Mishra with Mr. Ajay Verma

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

23/08/2022 REPORTABLE

1. Appellant-defendant has preferred this second appeal under

Section 100 of Code of Civil Procedure against the judgment and

decree dated 16.03.2022 passed in Civil First Appeal No.2/2021

(12/2021) by the Court of Additional District Judge No.2, Jaipur

District, Jaipur, affirming the judgment and decree dated

06.08.2021 passed in Civil Suit No.148/2019 (06/18) by the Court

of Additional Senior Civil Judge No.2, Jaipur District, Jaipur,

whereby and whereunder the suit for possession, mesne profits

and permanent injunction filed by respondent-plaintiff before the

civil court has been decreed and the appellant-defendant has been

directed to vacate and hand over the vacant possession of the suit

(2 of 20) [CSA-79/2022]

premises as also to pay the arrears of mesne profits @ Rs.8,000/-

per month until delivery of possession, which has been reduced by

the first appellate court to Rs.4250/- per month.

2. Heard learned counsel for both parties & perused the

impugned judgments and record.

3. Admittedly, the suit property is a residential houses

comprising one hall, bedroom, kitchen, store & WC etc. situated in

first floor of house No.123, Brahampuri, Jaipur.

4. It is not in dispute between the parties that the possession of

aforesaid suit premises was given by the plaintiff to defendant

through an agreement dated 03.05.2011 for a period of eleven

months and later on this agreement was renewed by executing

subsequent agreements time to time. All these agreements are

undisputed between the parties and the appellant-defendant has

admitted the execution as well as the contents of these

agreements. These agreements are available on record from

Exhibit 1 to Exhibit 6.

5. In the agreement dated 03.05.2011 (Ex.6), titled as

"Agreement For Leave And Licence", it was stated that possession

of the house is being given to defendant on license and it is not a

lease. Defendant also agreed to take the possession as license and

not as lease. Such intention of parties stands clarified by the

agreement and the Clauses A & B of the agreement reads as

under:

"a) The Licensor hereby grants Leave and License to the Licensee to use and occupy the society premises for a period of 11 months for use as residential accommodation by the Licensee.

b) For removal of doubts, it is hereby declared that thre is no intention between the parties to create any lease or tenancy

(3 of 20) [CSA-79/2022]

in favour of the Licensee or any other person, the Licensee hereby agrees to remove him and his/her articles and quit, vacant and deliver possession of licensed premises on expiry of the period."

The license fee was determined initially @ Rs.3150/- which

time to time enhanced to Rs.4250/-.

6. Plaintiff instituted the present civil suit for possession on

23.05.2018, stating inter alia that renewal of license by the last

agreement dated 6.01.2016, the license of defendant was not

renewed thereafter and because defendant did not make any

payment of the license fee and arrears accrued against him,

therefore, by issuing a legal notice dated 17.04.2018, the license

of defendant was terminated and due arrears of license fee were

claimed. Since defendant did not respond the notice, hence the

present suit has been instituted on 23.05.2018.

7. Defendant submitted his written statement and admitted

getting possession of the suit premises under the agreement

dated 3.05.2011 as also admitted the renewal of agreement by

the subsequent agreements. Defendant denied to receive any

notice dated 17.4.2018 by the plaintiff and contended that no

cause of action has accrued to plaintiff to institute the present civil

suit for possession.

8. It is worthy to note here that in written statement, defendant

has not taken any plea that the agreements in question are not

license deed but these agreements were executed as lease deed

or should not be construed as license deed. The defendant,

although alleged himself to be a tenant but did not raise any

defence that being a tenant, the suit is not triable by the civil

court. There is no plea of the defendant in his written statement

(4 of 20) [CSA-79/2022]

that for the suit premises, a relationship of landlord and tenant

was created and established between the parties, or the dispute

arose in the present suit be governed under the Rajasthan Rent

Control Act, 2001, therefore, the present suit for possession

before the civil court is not maintainable. It appears from para

No.10 of the written statement that the defendant contested the

jurisdiction of the civil court on the ground of pecuniary limits, not

by virtue of the nature of dispute between the parties.

9. As per pleadings of the parties, the learned trial court framed

issues. Obviously, since there was no conflict and dispute between

the parties that the agreements were executed as a license and

not as a lease, therefore, no issue in this regard was framed.

Further, since the defendant did not raise any plea of the

jurisdiction that the present suit for possession does not lie and

not maintainable before the civil court, no issue in this regard

arose and hence was not framed.

10. The trial court after recording evidence of both parties and in

view of admitted documents of agreements from Exhibit 1 to

Exhibit 6, treated the possession of defendant unauthorized after

termination of his license and passed the decree for possession in

favour of plaintiff and against defendant along with the due

arrears of mesne profits and future mesne profits as indicated

hereinabove vide judgment and decree dated 6.08.2021.

11. Defendant challenged the judgment and decree for

possession and mesne profits dated 6.8.2021 by way of filling first

appeal. Before the first appellate court, defendant raised an

argument that the trial court has committed error in treating the

defendant as licensee whereas according to the agreements, the

possession of defendant be treated as tenant. It was urged by the

(5 of 20) [CSA-79/2022]

counsel for the defendant before the first appellate court in his

argument that there is a relationship of landlord and tenant

between the parties, therefore, the rent tribunal has jurisdiction to

entertain the present suit and the civil court has no jurisdiction to

entertain and decide the present suit. The first appellate court

turned down such arguments of the defendant with findings that

such plea has not taken by the defendant in his written statement

and the oral arguments, beyond the scope of pleadings, cannot be

entertained at the stage of appeal. According to material available

on record, the defendant was in arrears of license fee and service

of notice upon defendant, terminating his license was proved,

therefore, the first appellate court, vide its judgment and decree

dated 16.03.2022, dismissing the appeal and affirmed the

judgment and decree dated 6.8.2021 passed by the trial court.

12. Against the concurrent findings of fact and the judgments

and decree for possession passed against defendant, the instant

second appeal has been preferred.

13. The second appeal came to be heard on 6.7.2022 and on

that day, having faced with the situation arises in the present suit

and in view of the concurrent findings of fact, the learned senior

counsel for appellant sought some time to seek instructions from

the appellant to vacate the suit premises, however, it appears that

appellant declined to take time to vacate the suit

premises(residential) and instructed his counsel to argue the

appeal on merits, therefore, appeal has been heard at length on

merits.

14. Thereafter and before arguing the second appeal on merits,

the appellant has moved an application under Order 6 Rule 17 CPC

seeking to amend his written statement and prayed to allow him

(6 of 20) [CSA-79/2022]

to incorporate the following plea of jurisdiction and plea of lease

and license in the written statement:

"A- यह कि किरायानामा प्रदरद -4 दससावाज ज जो बादादी ना प्रसस्स किया हि वह लादीज और लाईसानस न ह जोिर किरायानामा हि सथा प्रकसवादादी उत्तरदासा किराया कनयतत्रण अकधिकनयम 2001 िा प्रावधिानानों सा सतरकंरक्षिस हि। सथा प्रकसवादादी स ाेचयरे ादी किरायादार िार की सारादीफ मी आसा हि सथा कबना किसादी इन्खलाय िा आधिार िा यह वाद प जोषनादीय नहहीं हि। B- यह कि मिानमाकलि एवत किराय जोदार िा मधय कववाद कनप ाना हा स् कसफद किराया कनयतत्रण अकधििरण ि जो हादी ंरक्षिात्राकधििार हि सथा कसकवल

नयायालय यह म्िदमा स्नना िा अकधििारादी नहहीं हि ।"

15. Learned counsel for respondent chose not to file any reply to

the application, however opposed the same on legal grounds.

16. Before dealing with the issues involved in the present second

appeal, this Court deems it just and proper to consider the

application filed under Order 6 Rule 17 CPC by appellant before

this Court at the stage of second appeal.

17. By bare perusal of the proposed amendment sought to be

added in the written statement, it is clear that this factual aspect

was well within knowledge of the defendant at the time of filing

the written statement before the trial court. No such pleadings

and no such defence were taken by the defendant in his written

statement. It may be noticed here that the agreements through

which the defendant obtained the possession of the suit premises,

there is clear recital that the intention of parties is not to create

any lease or tenancy in the suit premises in favour of licensee but

the agreements talk about to give suit premises on license only.

The defendant has not disputed these agreements. Further,

defendant did not move any such application in the first appeal,

(7 of 20) [CSA-79/2022]

although an oral argument was raised which was declined to be

accepted in absence of any pleadings.

18. After addition of the proviso, the provision of Order 6 Rule 17

CPC reads as under:

"17. Amendment of pleadings.-- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

19. Learned counsel for appellant has argued that the proviso of

Order 6 Rule 17 CPC is not mandatory but directory in nature.

20. Hon'ble the Supreme Court in case of Vidyabai and Ors. Vs.

Padmalatha and Anr. [(2009) 2 SCC 409], which has been

followed in subsequent case of Pandit Malhari Mahale Vs. Monka

Pandit Mahalve and Ors. [(2020) 11 SCC 549] has discussed

the scope of provision of Order 6 Rule 17 CPC, after introducing the

proviso in that provision by virtue of amendment w.e.f. 1 st July

2002. In both aforementioned judgments, Hon'ble the Supreme

Court has categorically held that if the court is satisfied that in

respect of due diligence, the party could not introduce the

amendment before commencement of the trial, the amendment at

the subsequent stage cannot be allowed. The present application

for amendment, there is no avertment that in spite of due diligence,

the appellant-defendant could not introduce the proposed pleadings

in the written statement before the commencement of trial, rather

the application has been filed at the stage of second appeal, after

(8 of 20) [CSA-79/2022]

decision of civil suit & first appeal on merits. Thus, the proviso puts

embargo to entertain such amendment application.

21. This is not that nature of case where the delay in moving the

application for amendment can be compensated by way of costs.

The nature of proposed amendment is such that the whole structure

of the present matter would change and a de novo trial would be

required and all the proceedings of trial court and first appellate

court would come to a naught. Further when the defendant

admitted execution of agreements and nowhere disputed his status

as licensee in the suit premises, he cannot be allowed to change his

basic defence or add any defence which was taken by him in

original written statement. A valuable right has accrued in favour of

respondent-plaintiff and as a whole trial of suit has commenced as

per the present pleadings of the written statement, therefore,

obviously the plaintiff would suffer irreparable injury and prejudice.

In this regard the judgment of Hon'ble Supreme Court in case of

Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil [3

AIR 1957 SC 363], which still holds the field and has also been

relied upon in the recent case of Mount Mary Enterprises Vs.

Jivratna Medi Treat Private Limited [(2015) 4 SCC 182],

which held as under:

"It was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs."

(9 of 20) [CSA-79/2022]

22. Learned counsel for respondent-plaintiff has placed reliance

upon a judgment of Hon'ble the Supreme Court delivered in case of

Union of India Vs. Kartar Kaur [(2012) 12 SCC 505]. In that

case, an employee of the central government instituted a civil suit

claiming his retiral benefits. The Union of India did not take any

plea in the written statement that civil court has no jurisdiction and

the jurisdiction of the title lease lies before the Central

Administrative Tribunal. The suit was decreed and the first appeal

was dismissed. At the stage of second appeal, the defendant sought

to raise a plea of jurisdiction of the civil court, which was not

allowed to be raised and the High Court upheld the decree passed

by the civil court in favour of the employee. In that backdrop the

Hon'ble Supreme Court in the aforesaid case held in para 12 as

under:

"12. It is not in dispute that till the filing of the second appeal, the petitioners had not questioned the jurisdiction of the civil court to entertain the suit filed by the respondent on the ground that the same was barred by Section 28 of the Act. We have no doubt that if such an objection had been raised at the threshold, the respondent may have been advised to withdraw the suit and file an application under Section 19 of the Act for grant of application under Section 21(3) for condonation of delay by showing sufficient cause for not filing the application within the period prescribed under Section 21(2). However, as no such objection was takne in the written statement, the respondent was precluded from availing the remedy by filing an application before the Central Administrative Tribunal. Therefore, the learned Single Judge of the High Court was fully justified in refusing to entertain the new plea taken by the petitioners and we do not find any valid ground to deprive the respondent, who is said to have reached the age of 90 years, of the monetary benefits

(10 of 20) [CSA-79/2022]

payable in terms of the decree passed by the lower appellate court." (Emphasis Applied) Applying the aforesaid ratio to the present case, if such

defence had been taken in the written statement before the trial

court, the plaintiff could have availed the opportunity to deal with

such defence and could have proceeded accordingly by resorting to

the other remedy under the Rent Control Act, 2001, but now at the

stage of second appeal such defence as proposed in application for

amendment cannot be allowed to be taken by the defendant.

23. Apart from the above reasons, this Court is of opinion that the

present application under Order 6 Rule 17 CPC filed by appellant at

the stage of second appeal may not be treated as bona fide and in

good faith. On perusal of the entire application, there is no whisper

for not incorporating the proposed amendment in the written

statement before the trial court or not to file such application before

the first appellate court. It is not the case of appellant that he was

not advised by the counsel before the courts below to introduce

such pleadings in the written statement. Obviously, the application

for amendment has been filed after the order dated 6.7.2022

passed by this Court when the counsel for appellant sought time to

seek instructions from the appellant to vacate the suit premises,

with an intention to prolong the lis and drag the appeal for longer

period. In the conspectus on all the facts and circumstances, it may

not be held that application has been filed with bona fides and in all

fairness.

23.1 Hon'ble the Supreme Court in case of Jai Jai Ram Manohar

Lal Vs. National Building Material Supply [(1969) 1 SCC

869], while dealing with the scope of Order 6 Rule 17 CPC

(11 of 20) [CSA-79/2022]

observed that the rules of procedure are intended to be a hand

made to the administrative of justice. The Court always gives leave

to amend pleadings of a party, unless it is satisfied that a party

applying was acting mala fide, or that by his blunder, he had caused

injury to his opponent which may not be compensated by way of an

order of costs.

23.2 In another case of Revajeetu Builders and Developers Vs.

Narayanaswamy and Sons and others [(2009) 10 SCC 84],

the Supreme court elaborately considered the ambit and scope of

Order 6 Rule 17 CPC and observed that "whether an application for

amendment is bona fide or mala fide" is relevant consideration to

be considered by the court while deciding the application under

Order 6 Rule 17 CPC. In para 64 of this judgment, the Hon'ble

Supreme Court observed as under:

"64. The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."

23.3 In another case of Jaswant Kaur and Anr. Vs. Subhash

Paliwal And Ors. [(2010) 2 SCC 124], while dealing with the

dispute between landlord and tenant, Hon'ble the Supreme Court

observed that the power to allow the amendment of pleadings is

very wide and is to be applied liberally. Nevertheless, the

application for seeking amendment filed under Order 6 Rule 17 CPC

and application filed Under 41 Rule 27 CPC were dismissed taking

(12 of 20) [CSA-79/2022]

note of the fact that by way of such application, the petitioner

attempted to introduce a new story by way of defence in order to

prolong the dismissal of the appeal. In the present case also,

appellant moved this application with intention to introduce a new

defence, which was never taken in the written statement before the

trial court or before the first appellate court and such application

has apparently been filed with intention to prolong the lis.

24. For the reasons mentioned hereinabove and as per the

proposition of law, the application filed under Order 6 Rule 17 CPC

by the appellant is dismissed.

25. As far as the issue as to whether the relationship between the

parties in the suit premises was as landlord and tenant or as

licensor or licensee, this Court is of opinion that such relationship

depends upon the intention of the parties. In order to determine

the point of lease or license, the court has to look into and consider

the intention of the parties at the time of delivery of possession.

Merely delivery of possession and recital in the agreement are not

the only criteria, rather, in case when possession is given, the line

between lease and licence is very thin. As has been noticed

hereinabove that in the agreement executed between the parties

which are undisputed and admitted documents, there is a clear

recital that there is no intention between the parties to create any

lease or tenancy in the suit premises. It is not disputed that both

parties are literate and have executed the agreements with full

awareness and after understanding of the nature of the

agreements. If the parties admittedly and willingly sought to create

a license and not lease, unless the circumstances do not warrant, it

(13 of 20) [CSA-79/2022]

is not for the Court to treat any agreement as a lease deed merely

because the agreement incorporates the ingredients of lease deed.

Such exercise of powers by Court and making interpretation of

agreements in that manner is not required in the facts and

circumstances of present case, more so when no such issue arose

before the trial court from pleadings of parties.

26. In this regard, the judgment of Hon'ble the Supreme Court in

case of Delta International Ltd. Vs. Shyam Sundar

Ganeriwalla and Anr. [(1999) 4 SCC 545] shall be referred. In

this case, the Supreme Court while deciding the similar issue,

categorically held as under:

"16.Learned Counsel for the respondent had also relied upon the decision of this Court in the case of Sohan Lal Naraindas v: Laxmidas Raghunath Gadit, [(1971) 1 SCC 276], wherein the Court has observed as under:-

'6. An attempt was deliberately made to camouflage the true nature of the agreement, by reciting in several clauses that the agreement was for lease and licence and it emphasise the pretence, it was also recited that the defendant was not to have any right as tenant or sub-tenant in respect of the loft.

9. Intention of the parties to an instrument must be gathered from the terms of the agreement examined in the light of the surrounding circumstances. The description given by the parties may be evidence of the intention but is not decisive. Mere use of the words appropriate to the creation of a lease will not preclude the agreement operates as a licence. A recital that the agreement does not create a tenancy is also not decisive. The crucial test in each case is whether the instrument is intended to create or not to create an interest in the property the subject-matter of the agreement. If it is in fact intended to create an interest in the property it is a lease, if it does not, it is a licence. In determining whether the agreement creates a lease or a licence the test of exclusive possession, though not decisive, is of significance.' From the aforesaid discussion what emerges is:

(1) To find Out whether the document creates lease or license real test is to find out `the intention of the parties';

(14 of 20) [CSA-79/2022]

keeping in mind that in cases where exclusive possession is given, the line between lease and licence is very thin.

(2) The intention of the parties is to be gathered from the document itself; Mainly, intention is to be gathered from the meaning and the words used in the document except where it is alleged and proved that document is a camouflage. If the terms of the document evidencing the agreement between the parties are not clear, the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties.

(3) In the absence of a written document and when somebody is in exclusive possession with no special evidence how he got in, the intention is to be gathered from the other evidence which may be available on record, and in such cases exclusive possession of the property would be most relevant circumstance to arrive at the conclusion that the intention of the parties was to create a lease.

(4) If the dispute arises between the very parties to the written instrument, the intention is to be gathered from the document read as a whole. But in cases where me landlord alleges that the tenant has sublet the premises and where the tenant in support of his own defence sets up the plea of a mere licensee and relies upon a deed enter into inter se, between himself and the alleged licensee, the landlord who is not a party to the deed is not bound by what emanates from the construction of the deed; the tenant and the sub-tenant may jointly set up the plea of a license against the landlord which is a camouflage. In such cases, the mask is to be removed or veil is to be lifted and the true intention behind a facade of a self-serving conveniently drafted instrument is to be gathered from all the relevant circumstances. Same would be the position where the owner of the premises and the person in need of the premises executes a deed labelling it as a licence deed to avoid the operation of rent legislation.

(5) Prima facie, in absence of a sufficient title or interest to carve out or to create a sim i lar tenancy by the sitting tenant, in favour of a third person, the person in possession to whom the possession is handed over cannot claim that the sub-tenancy was created in his favour; because a person having no right cannot confer any title of tenancy or sub-tenancy. A tenant protected under statutory provisions with regard to occupation of the premises having no right to sublet Or transfer the premises, cannot confer any better title. But, this question is not required to be finally determined in this matter.

(6) Further lease or licence is a matter of contract between the parties. Section 107 of the Transfer of Property Act inter alia provides that leases of immoveable property may be made either by registered instrument or by oral agreement accompanied by delivery of possession; if it is a registered instrument, it shall be

(15 of 20) [CSA-79/2022]

executed by both the lessee and the lessor. This contract between the parties is to be Interpreted or construed on the well laid principles for construction of contractual terms, viz, for the purpose of construction of contracts, the intention of the parties is the meaning of the words they have used and there can be no intention independent of that meaning; when the terms of the contract are vague or haying double intendmcnt one which is lawful should be preferred; and the construction may be put on the instrument perfectly consistent with his doing only what he had a right to do." (Emphasis applied)

27. The similar proposition of law and ratio decendidi has been

expounded by Hon'ble the Supreme Court in case of Smt. Rajbir

Kaur and Anr. Vs. M/s Chokesiri and Co. [(1989) 1 SCC 19].

In Para 22, Hon'ble the Supreme Court has held under:

"22. It is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and that, further, the grant be for consideration. While the definition of 'Lease' Section 105 of the Transfer Property Act, 1882, envisages the transfer of a right to enjoy the property, on the other hand the definition of a 'Licence' under Section 52 of the Indian Easements Act, 1982 consistently with the above, excludes from its pale any transaction which otherwise, amounts to an "easement" or involves a transfer of an interest in the property, which is usually involved in the case of a transfer of right to enjoy it. These two rights, viz. easements and lease in their very nature, are appurtenant to the property. On the other hand, the grant only of the right to use the premises without being entitled to the exclusive possession thereof operates merely as a licence. But the converse implications of this proposition need not necessarily and always be true. Wherever there is exclusive-possession, the idea of a licence is not necessarily ruled out. English Law contemplates what are called 'Possessory-Licences' which confer a right of exclusive-possession, marking them off from the more usual type of licences which serve to authorise acts which would otherwise be trespasses. Thus exclusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive-possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In the last analysis the question

(16 of 20) [CSA-79/2022]

whether a transaction is a lease or a licence "turns on the operative intention of the parties" and that there is no single, simple litmustest to distinguish one from the other. The "solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties""

(Emphasis Applied)

28. There cannot a disagreement about the well settled

proposition of law in civil cases that a suit has been tried on the

basis of pleadings of contesting parties, which are filed before the

trial court in form of plaint and written statement. The nucleus of

the suit revolves around the issue emerges out of the pleadings of

the parties. In the present case, in absence of any pleadings, the

issue sought to be raised by counsel for appellant in the present

appeal, does not arise at all.

29. Keeping in mind the proposition of law discussed

hereinabove and the peculiar facts of the present case, where the

parties clearly have an intention to create a license not a lease or

tenancy in the suit premises in favour of defednant and more

particularly when no such defence was taken by the defendant in

the written statement, this Court is not inclined to interfere with

the impugned judgments and decree.

30. The substantial questions of law, which have been proposed

by counsel for appellant and as mentioned in the memo of appeal,

do not arises out of the pleadings of the parties. It is a trite law

that at the stage of second appeal, no new or third case can be

allowed to be made out which do not borne out of the pleadings of

the parties and without having any foundational facts on record.

(17 of 20) [CSA-79/2022]

31. The Hon'ble Supreme Court in case of C. Doddanarayan

Reddy and Ors. Vs. C. Jayarama Reddy and ors. Reported in

[(2020) 4 SCC 659] has observed as under:

"26.In a judgment reported as Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [(1999) 3 SCC 722], this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:

"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."

                                              (18 of 20)                 [CSA-79/2022]

"27.   In   another     judgment        reported       as    Santosh     Hazari   vs

Purushottam Tiwari [(2001) 3 SCC 179], this Court held as under:

"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question 10 (2001) 3SCC 179 of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

"28. Recently in another judgment reported as State of Rajasthan vs.Shiv Dayal [(2019) 8 SCC 637], it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

"When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of

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law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."

32. The Hon'ble Supreme Court in another Case of Umerkhan

Vs. Bismillabi & Ors. [(2011) 9 SCC 684] has held as under:-

"11.In our view, the very jurisdiction of the High Court in hearing a second appeal is founded on the formulation of a substantial question of law. The judgment of the High Court is rendered patently illegal, if a second appeal is heard and judgment and decree appealed against is reversed without formulating a substantial question of law. The second appellate jurisdiction of the High Court under Section 100 is not akin to the appellate jurisdiction under Section 96 of the Code; it is restricted to such substantial question or questions of law that may arise from the judgment and decree appealed against. As a matter of law, a second appeal is entertainable by the High Court only upon its satisfaction that a substantial question of law is involved in the matter and its formulation thereof. Section 100 of the Code provides that the second appeal shall be heard on the question so formulated. It is, however, open to the High Court to reframe substantial question of law or frame substantial question of law afresh or hold that no substantial question of law is involved at the time of hearing the second appeal but reversal of the judgment and decree passed in appeal by a court subordinate to it in exercise of jurisdiction under Section 100 of the Code is impermissible without formulating substantial question of law and a decision on such question.

12. This Court has been bringing to the notice of the High Courts the constraints of Section 100 of the Code and the mandate of the law contained in Section 101 that no second appeal shall lie except on the ground mentioned in Section 100, yet it appears that the fundamental legal

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position concerning jurisdiction of the High Court in second appeal is ignored and overlooked time and again. The present appeal is unfortunately one of such matters where High Court interfered with the judgment and decree of the first appellate court in total disregard of the above legal position."

33. After discussion made hereinabove, the second appeal is

bereft of merits having involvement of no substantial questions of

law and deserves to be dismissed and the same is hereby

dismissed.