IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11.3.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1090 of 2008 and M.P.No.1 of 2008 Ramasamy .. Appellant/Defendant vs. Mariappan .. Respondent/Plaintiff This second appeal is filed against the order dated 30.4.2007 passed in A.S.No.11 of 2007 by the Additional District Court(FTC-IV), Bhavani, confirming the order dated 28.11.2003 passed in O.S.No.331 of 2002 by the II Additional District Munsif, Bhavani District. For Appellant : * Mr.Vijaysankar For Respondent : * Mr.N.Manokaran JUDGMENT This second appeal is focussed by the original defendant, animadverting upon the judgement and decree dated 30.4.2007 passed in A.S.No.11 of 2007 by the Additional District Court(FTC-IV), Bhavani, confirming the judgement of the trial Court, namely, the II Additional District Munsif, Bhavani District, in O.S.No.331 of 2002, which was a suit for permanent injunction, so as to restrain the defendant from interfering with the peaceful possession and enjoyment of the suit path way by the plaintiff. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court. 2. Broadly but briefly, narratively but precisely, the relevant facts, which are absolutely necessary and germane for the disposal of https://hcservices.ecourts.gov.in/hcservices/ this second appeal, could be portrayed thus in view of the fact that both the Courts below elaborately detailed and delineated the relevant facts in their respective judgements. The plaintiff earlier filed the suit O.S.No.460 of 1999 before the II Additional District Munsif, Bhavani, seeking declaration of his title and permanent injunction relating to two items of properties, one to an extent of 48 cents and another to an extent of 1¼ cents, which includes the present suit property also. The said suit was dismissed. However the fact remains that in the earlier suit, the written statement filed by the same defendant herein, marked as Ex.A6 in this suit, would demonstrate and evidence, express and expatiate in unmistakable terms, as correctly pointed out by the lower Court in its judgement, that the defendant candidly and categorically admitted the existence of common path way in the suit property herein. Ultimately, the earlier suit was dismissed on the ground that the prayer of the plaintiff for declaration of title over the said property and for injunction was untenable. Per contra, the present suit is for obtaining injunction so as to restrain the defendant from interfering with the plaintiff's right to use the suit common path way, found described in the schedule of the plaint. As such, the lower Court, adverting to various other facts and evidence held that the suit was not barred by res judicata and the appellate Court also confirmed the order of the lower Court. Being disconcerted and aggrieved by the judgements of both the Courts below, the defendant in the grounds of second appeal suggested the following substantial questions of law:- "A. Whether the judgements and decrees of the Courts below are vitiated by non framing of proper and relevant issues having regard to the nature of controversy between the parties. By not framing relevant issues the courts below have posed wrong and irrelevant issues for consideration affecting their judgement. B. Whether the judgements and decrees of the courts below are vitiated on account of non consideration of the fact that the present suit in O.S.No.331 of 2002 was barred by res judicata in as much as in the earlier suit in O.S.No.640 of 1999 for the relief of declaration and permanent injunction over the same suit property in S.No.683/2 had been dismissed by judgment and decree dated 21.1.2002. C. Whether the judgement and decree of the courts below are vitiated by their throwing the burden of proof wrongly on the defendant ignoring the basic principles of law that it was the plaintiff who had to prove and substantiate his case. https://hcservices.ecourts.gov.in/hcservices/ D. Whether the judgement and decrees of the courts below are vitiated by their drawing of unnecessary and unwarranted of inference/assumptions from the evidence of the parties including the report of the Advocate Commissioner." 3. A bare poring over and perusal of the judgement of the lower Court, as found enclosed in the typed set of papers, would demonstrate and display that as many as four issues were framed by the trial Court as under:- (i) Whether the plaintiff is entitled for permanent injunction; (ii) Whether the suit was bad for want of the prayer for declaration of title; (iii) Whether there is no cause of action for filing the suit; and (iv) to what relief is the plaintiff entitled to? 4. In my considered opinion, no doubt, the lower Court could have framed issues in a much better manner by delving deep into the factual aspects of the pleadings; nevertheless the perusal of the typed set of papers, would evince and set forth that understanding the real controversy between the parties, the trial Court entertained overwhelming or overbrimming oral and documentary evidence on either side, even touching upon the previous litigation in O.S.No.460 of 1999. Surprisingly and shockingly, the defendant miserably and grossly failed and abstained from raising the plea of res judicata in the written statement filed by him. 5. It is a common or garden principle of law in addition to it being a rudimentary principle of practice and pleading that the plea of res judicata should be raised as a specific plea in the written statement and it is the bounden duty of the defendant, who press into service the plea of res judicata, to produce the certified copies of the pleadings, issues and the judgement in support of his plea. However, in the written statement filed by the defendant before the trial Court, even though the very plea of res judicata has not been taken, nonetheless by at least barely referring to the proceedings in the previous suit, there could have been some statement, but it is conspicuous of its missing. The lower Court considered that aspect also in its judgement and held that the suit is not barred by res judicata. The plaintiff himself, as revealed by the records, exhibited Ex.A5 to A8, the certified copies of the plaint, written statement and sketch relating to the previous suit O.S.No.460 of 1999. The defendant marked Exs.B5 and B6-the certified copies of the judgement and decree in the previous suit O.S.No.460 of 1999. As such both the Courts below au fait with law and au courant with https://hcservices.ecourts.gov.in/hcservices/ facts, considered the legal as well as the factual aspects and held that the present suit was not barred by res judicata. 6. At this juncture I would like to highlight and spotlight the fact that the previous suit, indubitably and indisputably, incontrovertibly and unassailably, was for declaration of plaintiff's title and possession in respect of the larger extent of land, including the suit property, but it was dismissed. But here it is quite obvious and axiomatic, pellucid and palpable, so to say, as plain as day, that the present suit is for injunction, as as to restrain the defendant from interfering with the plaintiff's right to use the path way. As has been already highlighted supra, as per Ex.A6, the written statement filed by the defendant in the previous suit, he supinely and plainly admitted the existence of such common path way. Claiming absolute right and ownership over the suit path way is different from claiming right of usage as path way. There is abysmal difference between the two prayers. As such, by citing the previous judgement, the appellant herein cannot try to canvas the plea of res judicata and thereby try to achieve success in the litigative battle. I would make it clear that any amount of evidence without pleadings should be eschewed. 7. Here even considering the plea of res judicata on merits, in view of my discussion supra, I could see no reason to interfere with the findings of both the Courts relating to the plea concerning res judicata. Absolutely there is nothing to indicate that any question of law much less substantial question of law is involved in this case. 8. At this juncture my mind is reminiscent and redolent of the following decisions of the Honourable Apex Court: (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL, certain excerpts from its would run thus:- "17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of hearing of the appeal has a right to argue that the case in the Court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring https://hcservices.ecourts.gov.in/hcservices/ that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence. 18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal v. Mehta and Sons, Ltd., v. Century Spg.&Mfg.Co.Ltd.held that (SCR pp.557-58) "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means – of having substance, essential, real of sound https://hcservices.ecourts.gov.in/hcservices/ worth, important or considerable. It is to be understood as something in contradistinction with-technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by sufficing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta the phrase "substantial question of law' as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju(Sir Chunilal case, SCR p.557) "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law." This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:(Sir Chunilal case, SCR pp.557-58) "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or call for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of https://hcservices.ecourts.gov.in/hcservices/ applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 23. 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, insofar 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 of law his 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.(See Santosh Hazari v. Purushottam Tiwari). 24. . . . (iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well- recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER, an excerpt from it would run thus- "9. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without https://hcservices.ecourts.gov.in/hcservices/ adhering to the procedure prescribed under Section 100 of the Code. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section in several cases, the findings of fact of the first appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this Section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal v. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR 1962 SC 1314) held that: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 9. A plain reading of the above judgements would leave no doubt that unless there is substantial question of law involved in a matter, no second appeal would lie. The trial Court also, in its elaborate judgement considered all the pleas of the defendant, which were put forth during trial and arguments, and suitably dealt with by pointing out that the said suit path way is running from East to West starting from Paruvachi Sethunampalayam Main Road on the East towards West. The trial Court relied on the oral as well as the documentary evidence adduced on both sides and rendered its judgement and the appellate Court correctly confirmed it. Hence, I could see no merit on the part of the defendant in trying to pursue this second appeal and as such at the admission stage itself I would like to dismiss it. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed. Sd/ Asst.Registrar 31.3.2009 *(Amended as per the Order of this Court dated 12.8.2009 and made herein) Sd/- Asst.Registrar 17.8.2009 /true copy/ Sub Asst.Registrar Msk To 1. The Additional District Court(FTC-IV), Bhavani |Amended Order to be 2. The II Additional District Munsif, |Substituted to the Bhavani District. |Judgement already |despatched | 1 CC To Mr.V.Vijay Shankar, Advocate, SR NO.7651/09 S.A.No.1090 of 2008 rs1(co) pmk/2.4.2009. pmk/18.8.2009. https://hcservices.ecourts.gov.in/hcservices/