1 S.B. Civil Second Appeal No. 377/2010 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 377/2010 Abdul Jabbar Versus Lohari & Others. Date: 29.09.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. J.P. Gupta, for the appellant. BY THE COURT:- Heard learned counsel for the appellant. 2. Plaintiff-appellant filed a suit for specific performance and permanent injunction in respect of property in dispute before Civil Judge(Junior Division), Karauli. Defence of defendants was that the document in question was not an Agreement to Sale, but property in question was mortgaged with the plaintiff. Learned trial court framed 8 issues. Both the parties led their oral and documentary evidence. Learned trial court vide its judgment and decree dated 08.02.2007 dismissed the suit for specific performance. However, defendants were restrained from dispossessing the plaintiff from the shop in dispute without due process of law. 2 S.B. Civil Second Appeal No. 377/2010 3. Aggrieved with the order dismissing the suit for specific performance, plaintiff filed regular appeal. Defendants filed cross objections with regard to injunction order passed by learned trial court. 4. Learned first appellate court vide its judgment and decree dated 09.08.2010 dismissed the appeal of plaintiff, but allowed the cross objections filed by the defendants. While allowing the cross objections and setting aside the order of injunction, the first appellate court observed that plaintiff has not stated that defendants want to dispossess the plaintiff without due process of law. 5. Learned counsel for the appellant has argued that both the courts below have committed serious illegality in deciding the issue relating to specific performance of the agreement. He also contended that finding of the first appellate court for setting aside the injunction order is apparently illegal and is liable to be set aside. 6. I have examined the findings of both the courts below in the light of submissions of learned counsel for the appellant. 7. Learned counsel for the appellant could not point any illegality or perversity in the findings of both the courts below. Second 3 S.B. Civil Second Appeal No. 377/2010 appeal is to be entertained only when some substantial questions of law are involved in the case. 8. A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram vs. Ameerchand- (1981) 2 SCC 414, considered the effect of amendment made in Section 100 of the CPC in 1976, and held as under: “......The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law.” 9. The Hon'ble Supreme Court, in Ramaswamy Kalingaryar Vs. Mathayan Padayachi-AIR 1992 SC 115, while considering the scope of Section 100 CPC, held as under: “......Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of S.100, C.P.C., which defines the contours of the power of the High Court in second appeal. .....” 4 S.B. Civil Second Appeal No. 377/2010 10. The Hon'ble Supreme Court in Gurdev Kaur & Others Vs. Kaki & Others-(2007) 1 SCC 546, considered the true import, scope and ambit of Section 100 CPC by referring the Section 100 CPC, before and after amendment of 1976, various declarations of law by Privy Council and Supreme Court, Legislative background in the 54th Report of the Law Commission of India submitted in 1973, Historical perspective, Rational behind permitting second appeal on substantial question of law, and held as under: “81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention. 82. In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the Hihg Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.” 5 S.B. Civil Second Appeal No. 377/2010 11. Since no substantial question of law is involved in the present case, therefore, I do not find any merit in any of the submissions of learned counsel for the appellant. 12. It is relevant to mention that trial court passed an injunction order in favour of the plaintiff observing that plaintiff will not be dispossessed from the shop in dispute without due process of law. First appellate court has set aside that part of the order by recording reason that plaintiff has not stated that defendants want to dispossess him from the shop in question without due process of law, therefore, in absence of any specific pleading in this regard, plaintiff is not entitled to any injunction order in his favour. Although, this finding of first appellate court has been challenged by learned counsel for the appellant, but he could not satisfy this Court as to how this finding of first appellate court is perverse. He referred the plaint as well as statements, but no where it is stated that defendants are dispossessing the plaintiff from the shop in dispute without due process of law. His apprehension is that finding of first appellate court will amount to giving a licence to the defendants to dispossess the plaintiff. The apprehension of the appellant is baseless. 6 S.B. Civil Second Appeal No. 377/2010 It will be open for the appellant to file fresh suit for injunction as and when new cause of action arises in his favour in this regard. 13. Second appeal is, accordingly, dismissed in limine with the aforesaid observations. (Narendra Kumar Jain),J. Manoj, Item No.5.