SA.673-08 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL No. 673 OF 2008 Popat Dadabhau Vishwasrao & Anr. ...Appellants Vs. Bhaguji Dadabhau Vishwasrao ...Respondent *** Mr. P. S. Dani, for the Appellants. Mr. Mandar Soman i/b T. D. Deshmukh, for Respondent No.1. *** CORAM: V. M. KANADE J. DATE : JANUARY 27, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the appellants and the respondent. The appellants are original defendants. A suit was filed by the respondent/plaintiff for injunction in respect of the suit property. The trial Court framed following issues- “1. Whether plaintiff proves that he is having title over the suit land? 2. Whether the plaintiff proves that he was in possession of the suit land on the date of institution of the suit? 3. Whether the plaintiff proves that defendants obstructed SA.673-08 - 2 - his peaceful possession over the suit land? 4. Whether the plaintiff is entitled for injunction, as sought?” The trial Court answered all these issues in the affirmative and passed the following order- “1. The suit is decreed with costs. 2. Temporary injunction granted is hereby confirmed and the permanent injunction against the defendant is granted. The defendants or the agents or anybody claiming through them are hereby restrained from causing any obstruction to or interference in possession of the plaintiff over the suit land. The plaintiff shall not attempt or cause to attempt to take possession of the house situated in the suit land or to dispossess them until they are evicted by following the due procedure of law. 3. Decree be drawn accordingly.” 2. The defendants challenged the judgment and order of the trial Court of the trial Court dated 4th April, 2006 by filing an appeal. The Appellate Court dismissed the appeal and observed that the judgment and decree passed by the trial Court was confirmed, except the finding as against issue No.1 was set aside. 3. The learned counsel appearing on behalf of the appellants SA.673-08 - 3 - candidly and fairly submitted that the issue which was framed in the grounds of appeal was not happily worded. He submitted that, therefore, he would like to re-formulate the substantial question of law. It is submitted that the substantial question of law was - “Whether the decree passed by the trial Court in favour of the defendants could be set aside in the appeal, filed by the defendants though a relief to that effect was not asked for?” 4. The learned counsel for the plaintiff/ respondent herein, submitted that the trial Court had relied upon the admission which was given by the plaintiff to the effect that defendants had house in the suit property and after having noted the said admission, the trial Court had also asked the plaintiff not to attempt or cause to attempt to take possession of the house, situated in the suit land or to dispossess until they are evicted by following the due procedure of law. It is not necessary to establish the title over the suit property before claiming injunction. The learned counsel invited my attention to point Nos. 1 and 2, which were formulated by the Appellate Court. He submitted that the Appellate Court did not take into consideration the admission which was given by the plaintiff and which was noted by the trial Court. It is, SA.673-08 - 4 - therefore, submitted that order passed in appeal was liable to be set aside. 5. On the other hand, the learned counsel appearing on behalf of the respondent submitted that the trial Court has taken into consideration the conflicting stands taken by the defendant in the written-statement and also an admission which was given by him in his evidence and thereafter had recorded the findings in favour of the plaintiff. 6. After having heard the counsel for the appellants and the respondent at length, in my view, no substantial question of law is raised in the Second Appeal. In the first place, it is an admitted position that the defendants had not filed a counter-claim in the said suit for injunction and for possession. The trial Court itself could not have passed any order in its operative portion in favour of the defendant since no such relief was claimed by the defendant by way of counter-claim. The Appellate Court, therefore, in my view, was justified in modifying the decree which was partly passed in favour of the defendants. Perusal of the operative part of the order, passed by the trial Court clearly shows that the trial Court has observed as under - SA.673-08 - 5 - “The plaintiff shall not attempt or cause to attempt to take possession of the house situated in the suit land or to dispossess them until they are evicted by following the due procedure of law.” Such a relief should not have been granted by the trial Court in the absence of a counter-claim being filed by the appellants herein. 7. In this view of the matter, I do not see any reason to interfere with the finding, being the finding of fact, recorded by the Appellate Court in the appeal filed by the defendant. The Apex Court in a recent judgment in the case of – Koppisetty Venkat Ratnam, Appellant vs. Pamarti Venkayamma, Respondent [(2009) 4 Supreme Court Cases, 244] has deprecated the practice of interference of the High Court interfering with the finding of concurrent finding of fact. The Apex Court after taking into consideration the legislative background in the Fifty- fourth Report of the Law Commissioner of India in 1973, as well as the historical perspective in respect of the appellate jurisdiction which has to be exercised by the High Court, the accumulation of arrears of Second Appeals in the High Court and the rationale behind permitting the Second Appeal on the question of law and thereafter taken into consideration the leading cases decided after the 1976 Amendment, has SA.673-08 - 6 - observed in paragraph 17 and 18 as under- “17. It is a matter of common experience in this Court that despite clear enunciation of law in a catena of cases of this Court, a large number of cases are brought to our notice where the High Courts under Section 100 CPC are disturbing the concurrent findings of fact without formulating the substantial question of law. 18. We have cited only some cases and these cases can be easily multiplied further to demonstrate that this Court is compelled to interfere in a large number of cases decided by the High Courts under Section 100 CPC . Eventually this Court has to set aside these judgments of the High Courts and remit the cases to the respective High Courts for deciding them de novo after formulating substantial questions of law. Unfortunately, several years are lost in the process. Litigants find it both extremely expensive and time consuming. This is one of the main reasons of delay in the administration of justice in civil matters.” 8. In my view, the substantial question of law which is sought to be raised by the learned counsel for the appellants namely - “Whether the decree passed by the trial Court in favour of the defendants could be set aside in the appeal, filed by the defendant though a relief to that effect was not asked for?” is really misconceived, since no relief was SA.673-08 - 7 - claimed by the defendant in the trial Court. There is no substance in the submissions advanced by the learned counsel appearing on behalf of the appellants. Second Appeal is, therefore, dismissed. [ V. M. KANADE J.]