T. Venkata Subrahmanyam vs Model Chit Corporation Ltd.,
2022 Latest Caselaw 3508 Tel

     THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY

               SECOND APPEAL No.779 OF 2015

JUDGMENT:

1. This second appeal is filed under Section 100 of the Civil

Procedure Code, 1908 (for short 'CPC') by the unsuccessful

defendant assailing the concurrent findings of the trial Court in

O.S.No.2371 of 2007 and the first appellate Court in A.S.No.236

of 2010.

2. The plaintiff-chit fund company has filed the original suit

in O.S.No.2371 of 2007 on the file of the learned VIII Additional

Senior Civil Judge, Ranga Reddy District at L.B. Nagar against

the defendants 1 to 6 for recovery of suit claim. The trial Court

on receipt of the written statement filed by the first defendant as

defendants 2 to 6 remained absent, settled the issues, recorded

the evidence of PW.1, marked Exs.A.1 to A.21 and no evidence

was adduced on behalf of the first defendant. Accordingly, after

closing the evidence on both sides, having heard the learned

counsel for the plaintiff and the first defendant decreed the suit

of plaintiff for a sum of Rs.2,93,670/- with interest at 12% per

annum from the date of filing of the suit till the date of decree 2 AVR,J SA_779_2015

and further interest at 6% per annum from the date of judgment

till the date of realization.

3. The first defendant/appellant feeling aggrieved by the

judgment and decree dated 14.06.2010 in OS No.2371 of 2007

has filed AS No.236 of 2010 on the file of the IV Additional

District Judge, Ranga Reddy District at L.B. Nagar. The learned

First Appellate Judge having heard the learned counsel on both

sides, formulated the points as contemplated under Order-41

Rule-31 of CPC and answered both the points in favour of the

plaintiff and against the first defendant holding that there is no

necessity to alter or modify or set aside the judgment and decree

in OS No.2371 of 2007 on the file of the VIII Additional Senior

Civil Judge, Ranga Reddy District at L.B. Nagar and that there

are no factual or legal omissions, accordingly, the appeal was

dismissed.

4. Feeling aggrieved by the concurrent findings recorded by

the trial Court and the first appellate Court, the first defendant

has preferred this second appeal. As per the Memorandum of

Second Appeal, the following substantial questions of law are

formulated:

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                                                             SA_779_2015




     i)     Whether a decree can be passed in a suit for
            recovery    of   money   by    the   court    without

adverting to the strength, weakness or pleading of the defendant?

ii) Whether a decree can be passed in a suit for recovery of money without considering the maintainability of the suit on the ground that the suit is barred by limitation?

iii) Whether a suit has to be decreed basing on the pleadings as well as the evidence on behalf of the plaintiff as well as well as on behalf of the defendant or on the failure of the defendant to prove his defence?

iv) Whether the trial court as well as the appellate court is bound to verify the maintainability of the suit irrespective of the objection raised by the defendant?

v) Whether the trial court as well as the appellate court are bound to give proper finding as to the maintainability of the suit when the defendant has specifically taken a stand in the written statement that the there is a delay in filing the suit and not having any right to file the suit?

5. Heard the learned counsel for the appellant/first

defendant. There was no representation on behalf of the

respondent/plaintiff and other defendants. The submissions 4 AVR,J SA_779_2015

made by the learned counsel for the appellant have received due

consideration of this Court. Perused the material available on

record.

6. I have carefully perused the judgments of the trial Court

and the first appellate Court. Though the appellant/first

defendant has filed the written statement denying the suit claim

alleging that the suit is barred by limitation and that the

allegations that the first defendant has not paid the chit fund

instalment amount is not correct, the statement of account is

fabricated document, he did not venture to enter into the

witness box to speak the contents of the written statement filed

by him on oath, thereby avoided cross-examination by the other

side. Accordingly after giving ample opportunity, the trial Court

has closed the evidence of PW.1. In fact, in such factual

situation an adverse inference under Section 114 (g) of Evidence

Act may be drawn against the defendant No.1 to the effect that

the case set up by him is not correct and it is false (Vidhyadar v.

Manikrao1). However, having heard on both sides and on

appreciation of the available oral and documentary evidence

(1999) 3 SCC 573 5 AVR,J SA_779_2015

adduced on behalf of the plaintiff-chit fund company, decreed

the suit of plaintiff against the appellant /first defendant and

other defendants.

7. The trial Court has clearly observed in para-9 of the

judgment that nothing is elicited in the cross-examination of

PW.1 and that the bye-laws of the company as Ex.A.17 was

served on the first defendant and that there is no other

circumstances or material to disbelieve the oral evidence of PW.1

and the contents of Exs.A.1 to A.21, accordingly decreed the suit

of the plaintiff.

8. The learned first appellate Judge, after hearing both the

parties, formulated the points as contemplated under Order-41

Rule-31 of CPC, re-appreciated the evidence available on record

and held that the evidence is sufficient to establish that the first

defendant has joined as member in the chit fund scheme of the

plaintiff and he was declared as highest bidder, received an

amount of Rs.2,75,000/- under the cover of Ex.A.7; Though the

first defendant has raised objection that he has not paid

Rs.6,000/- under Exs.A.20 and A.21, the oral evidence of PW.1

and recitals of Exs.A.20 and A.21 are sufficient to hold that the 6 AVR,J SA_779_2015

first defendant has paid the said amount to the chit fund

company. The learned first appellate Judge has clearly recorded

the findings on factual basis holding that Exs.A.20 and A.21 are

the receipts in proof that part payment was made by the first

defendant and the defendants 2 to 6 were set ex parte, as per the

suit documents including Ex.A.6, the liability of defendants is

joint and several and that the available oral and documentary

evidence is sufficient to establish the liability of the defendants

since the first defendant as member of the chief fund scheme

and defendants 2 to 6 as his guarantors executed requisite

documents liable to repay the suit claim. I do not find any

perversity or irregularity in the findings recorded either by the

trial Court or by the first appellate Court.

9. I have given my thoughtful consideration to the substantial

questions of law that are proposed by the appellant in the

Memorandum of Second Appeal, as extracted above. The first

point is whether the plaintiff is entitled for decree only based on

the weakness of the case of first defendant. As discussed above,

the suit was not decreed merely on the basis of weakness of the

first defendant or on the ground that the first defendant failed to 7 AVR,J SA_779_2015

adduce any evidence. Both the Courts below having appreciated

the evidence of PW.1 and contents of Ex.A.1 to A.21 concluded

that the suit is well within the limitation. The first defendant

has joined in the chit fund scheme, he was declared as

successful bidder and availed the bid amount on furnishing the

guarantors/defendants 2 to 6, I do not find any substantial

question of law involved in point No.(i).

10. Point Nos.(ii) to (iv) deals with appreciation of evidence by

the trial Court on the relevant aspect and also on the liability of

the defendants. As per Exs.A.20 and A.21 and the oral evidence

of PW.1 both the Courts below have recorded the clear finding

that under Ex.A.20 the first defendant has repaid an amount of

Rs.6,000/ and the suit is well within the limitation. The suit of

plaintiff is not decreed mere only the ground that the first

defendant has failed to adduce any evidence. The trial Court

and the first appellate Court have appreciated and re-

appreciated the evidence available on record including the

objection raised by the first defendant as to maintainability of

the suit on the limitation aspect. Thus, I do not find any force in

point Nos.(i) to (iv) as extracted above and no question of law 8 AVR,J SA_779_2015

much less substantial question of law is involved in any of the

above points.

11. Point No.(v) of substantial question of law formulated by

the appellant deals with the maintainability of the suit as he has

taken a defence in the written statement that there is delay in

filing the suit. As indicated above, relying on Exs.A.20 and A.21

the trial Court and the first appellate Court have concluded that

the suit is well within the limitation, I do not find any force in

the contention raised by the learned counsel for the appellant in

this case.

12. In that view of the matter, I do not find any question of law

much less substantial questions of law in any point Nos.(i) to (v),

as extracted above. The trial Court and the first appellate Court

have carefully appreciated the evidence, assigned valid reasons

to decree the suit and also for dismissal of the first appeal.

Thus, all the grounds, as indicated in the substantial questions

of law formulated by the appellant, are only on factual basis

questioning the manner of appreciation of oral and documentary

evidence and consequence of not producing evidence on behalf

of defendants etc. 9 AVR,J SA_779_2015

13. Section 100 of CPC deals with second appeals. The

existence of a substantial question of law is the sine qua non for

the exercise of the jurisdiction under the amended provisions of

Section 100 of CPC. The jurisdiction of the High Court is now

confined only to entertain such appeals wherein substantial

question of law has specifically set out in the memorandum of

appeal and formulated by the Court (Thiagarajan v.

Venugopalaswamy B. Koil2 and Dharmarajan v. Valliammal3).

14. Recently, the Hon'ble Apex Court in Gurnam Singh (D) by

LRs and others v. Lehna Singh (D) by LRs4 while dealing with the

scope of Section 100 of CPC held at para-18 as under:

"18. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under

(2004) 5 SCC 762

(2008) 2 SCC 741

AIR 2019 SC 1441 10 AVR,J SA_779_2015

Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.

Therefore, we are constrained to observe as above and remind the High Courts the limitations under Section 100 of the CPC and again hope that High Courts would keep in mind the legal position before interfering in Second Appeal under Section 100 of the Code of Civil Procedure."

15. When the facts of the present case are tested on the

touchstone of the principles laid by the Hon'ble Apex Court in

the above decision, the answer is in the negative. No question of

law much less substantial question of law is made out either

from the plain reading of the judgment of the trial Court and the

first appellate Court or from the points formulated in the

grounds of second appeal. I do not find any irregularity or

perversity in appreciation of evidence. Both the Courts below

have carefully analyzed and appreciated the evidence with

reference to settled principles of law. No material has been over

looked nor any inadmissible evidence has been considered by

the Courts below for recording such findings and as such, there

is no scope for interference in such concurrent findings recorded

by the trial Court and the first appellate Court.

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                                                       SA_779_2015

16. In the result, the second appeal is dismissed at the

admission stage itself confirming the concurrent findings of the

trial Court in O.S.No.2371 of 2007 and the first appellate Court

in A.S.No.236 of 2010. However, in the circumstances of the

case, there shall be no order as to the costs.

As a sequel, miscellaneous applications, if any, pending in

this second appeal, shall stand closed.

________________________________ A.VENKATESWHARA REDDY, J

Date: 07-07-2022 Isn