Telangana High Court
B.Venkata Ramanamma Subramanyam vs The Principal on 23 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.331 of 2022
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree dated 01.04.2022 passed by the XII Additional Chief Judge,
City Civil Court, Secunderabad, in A.S.No.29 of 2020, confirming
the judgment and decree dated 10.08.2020 passed by the I Junior
Civil Judge, City Civil Court, Secunderabad, in O.S.No.497 of
2018.
2. For the sake of convenience, the parties are referred to as
they are arrayed before the trial Court.
3. Brief facts leading to filing of the present Second Appeal
are that the appellant/plaintiff filed the suit vide O.S.No.497 of
2018 against the respondents/defendants for recovery of
Rs.79,789/- towards arrears of pension with interest @ 12% per
annum from November, 2016 till the date of filing of the suit and
also future @ 12% per annum.
4. In the plaint it was averred that the plaintiff did her M.Sc.
(Physics) from Pune University, Maharashtra in 1963 and she did
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Ph.D in Physics from the prestigious Banaras Hindu University,
Varanasi, in 1969. She joined as a Junior Lecturer in Wesley
Junior College for Girls on 02.09.1973 as a permanent employee.
Thereafter, she was promoted as Lecturer in 1986 and she was
further promoted as Vice Principal in 1994. After completion of
26 years of service, she retired on 30.11.1999 on attaining the age
of superannuation as Vice Principal from the same institution.
5. It was also averred that after retirement, the plaintiff got
pension from December, 1999 to February, 2008. However, from
March, 2008, the defendant No.1 - college stopped paying the
pension to her. Therefore, the plaintiff got issued a legal notice
dated 15.06.2009, but, there was no reply from the defendants.
The plaintiff approached the Human Rights Commission on
07.07.2009. The defendants admitted their mistake before the
Human Rights Commission, resumed the pension and paid the
pension up to 15.03.2013. Later, on 15.03.2013, the plaintiff again
issued legal notice to the defendants calling upon them to pay an
amount of Rs.2,61,170/- along with interest towards arrears of
pension, but, there was no response from the defendants. Hence,
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the plaintiff filed a suit vide O.S.No.266 of 2016 on the file of the I
Junior Civil Judge, City Civil Court, Secunderabad, and the said
suit was decreed on 06.03.2017. The plaintiff filed E.P.No.24 of
2017 and on receipt of warrants for attachment of movable
property, the defendants have paid Rs.3,12,625/-. Hence, the said
E.P. was terminated on 13.07.2018.
6. It was further averred that during the pendency of
O.S.No.266 of 2016, the defendants again started paying the
monthly pension from December, 2016. The plaintiff got issued
legal notice dated 22.06.2018 to the defendants to pay Rs.64,764/-
towards arrears of pension from March, 2016 to November, 2016.
Despite receiving the said notice, the defendants did not pay the
arrears of pension. Hence, the plaintiff filed the present suit.
7. Despite serving summons, the defendants failed to appear
before the trial Court, and hence, they were set ex parte.
8. In order to prove her case, the plaintiff got examined
herself as P.W.1 and got marked Exs.A.1 to A.7.
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9. The trial Court, after considering the entire material
available on record, vide judgment and decree dated 10.08.2020,
dismissed the suit observing that except Ex.A.2 and her self-
serving statement, no scrap of paper was filed by the plaintiff.
Aggrieved by the same, the plaintiff filed A.S.No.29 of 2020. The
first Appellate Court on re-appreciation of the entire evidence
and perusal of the material available on record dismissed the
appeal confirming the judgment and decree passed by the trial
Court, vide judgment and decree dated 01.04.2022. Hence, the
present Second Appeal.
10. Heard Sri T. Sasi Kumar, the learned counsel for the
appellant and Sri A. Srinivas, the learned counsel for the
respondents. Perused the record.
11. The learned counsel for the appellant vehemently argued
that the trial Court dismissed the suit without proper
appreciation of the evidence and the first Appellate Court erred
in confirming the same. He also contended that the first Appellate
Court failed to appreciate the facts that the defendants have paid
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only E.P. amount and not any additional amount and that no
senior citizen of India should be allowed to suffer for non-receipt
of the pension for which he/she is genuinely eligible. In support
of the said contentions, the learned counsel for the appellant
relied upon the judgment of the High Court of Judicature at
Bombay, Nagpur Bench, Nagpur, in Shri Naini Gopal v. the
Union of India 1.
12. There is no dispute with regard to the ratio laid down by
the High Court of Bombay in the above referred judgment.
However, the facts of the said case and the facts of the present
case are different and thus, the above judgment has no
application to the present case.
13. A perusal of the record discloses that both the Courts
below concurrently held that the plaintiff did not file any scrap of
paper to prove her case. Admittedly, the burden of proof lies on
the plaintiff to prove her case. Hence, this Court does not find
any illegality or irregularity in the impugned order warranting
interference by this Court.
LD-VC-CW-665 of 2020, dated 20.08.2020
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14. Further, the learned counsel for appellant failed to raise
any substantial question of law to be decided by this Court in this
Second Appeal. In fact, all the grounds raised in this appeal are
factual in nature and do not qualify as the substantial questions
of law in terms of Section 100 C.P.C.
15. It is well settled principle by a catena of decisions of the
Apex Court that in the Second Appeal filed under Section 100
C.P.C., this Court cannot interfere with the concurrent findings
on facts arrived at by the Courts below, which are based on
proper appreciation of the oral and documentary evidence on
record.
16. Further, in Gurdev Kaur v. Kaki 2, the Apex Court held that
the High Court sitting in Second Appeal cannot examine the
evidence once again as a third trial Court and the power under
Section 100 C.P.C. is very limited and it can be exercised only
where a substantial question of law is raised and fell for
consideration.
(2007) 1 Supreme Court Cases 546
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17. Having considered the entire material available on record
and the findings recorded by the trial Court as well as the first
Appellate Court, this Court finds no ground or reason warranting
interference with the said concurrent findings, under Section 100
C.P.C. Moreover, the grounds raised by the appellant are factual
in nature and no question of law much less a substantial question
of law arises for consideration in this Second Appeal.
18 . Hence, the Second Appeal fails and the same is accordingly
dismissed at the stage of admission. No costs.
Pending miscellaneous applications, if any, shall stand
closed.
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LAXMI NARAYANA ALISHETTY, J
Date: 23 .01.2024
va
