¢ $ glee I v€((e ( aa§5<i ,9 \S\s§(§ xx,x$x\s\&5\_/ r r m .J \ MWMMW MNQNMDM T’ VEFEE on m, .\ w m w g . @LE mmw why- wmy i$aa§mm$$ Eqmq. $94: “Eaamq N a; mwm£ mmrmm wwmma‘ wmw wmm. \ 3%. g? mWQwmT”4%.? E§.E§¢mm« \f'lilh Era NaRwgiH M w 7. . \WE g;agmg‘ gaggq wggmq mmaqi wEVE 93g §$ $34 as mma mawwmmd. ‘ 5 : 1 HIGH COURT OF CHHATTISGARH AT BILASPUR AppeHant Respondents Versus Second Appeal No.55 of 2004 Vishram Baisakhu and another JV$ NoL1 ; Shri i i ‘ i second Appeal under Section 100 of the Code of Civil Procedure I ‘x 2. i 1 was I r ‘ I mortgaged by his 4 .~\ Presént:- Shri Sganjay Patel, counsel for the appeJIant. Shri M.K.Bhaduri with Shri Praveen Tutsyan, counsel for respondent father 3 Learned counsel for the appellant ls heard on admission. g Plaintiff/respondent No.1 Baisakhu preferredwka 'suit for declaration and permanent injunction with respect to the’suit land admeiasuring 4.42 acres situated at Village Pali. Tahsil Takhatpur, District Bilaspur on the allegation that the suit land is ancestral property, which he has received in succession from his father Ludgu, vvhvo :died about 15 years back. According to'the plaintiff, the suit land Ludgu in favour of defehdaht/appeilant Vishram against a loan amount of Rs.400/-, however, a nominal sale-deed in favour of Vishram was executed on 21-71-1971. The loan amount, having been repaid to Vishram, by allové/ing him to cultivate the suit land for 3 years and making payment of Rs.400/- against the interest and principle of the loan amount, it is $anjéev Ag'rawal, Panel Lawyer for the State/respondent No.2. ORAL ORDER (Passed on 19‘ February, 2010) the Slnqle Bench: Hon’ble Shri Justice Prashant Kumar Mishra (—— 1/ .the Qase of the plaintiff that after some time the defendant Vishram initiatied revenue proceedings and started raising dispute on the basis of the; nominal sale-deed dated 21-7-1971. The plaintiff preferred Civil Suit %No.93-Al1987-, in which the summons was served 'on the i defendant/appellant yet he failed to present himself in the Court and ex l parte l decree was passed on 2—7—1988. It was decreed that the sale— deedl dated 21-7-1 971 is null and void and not binding on the plaintiff Baisakhu and the defendant Vishram shall not disturb the possessron 3. ‘ When the matter was, thus, pending in relation to the first suit, fCivil Suit N093—A/1987 filed by Baisakhu the present appellant/defendant preferred CIVII Swt No 19 A/1991 and obtained an ex parte decree on 3-11-1993. It is the pleading of the plaintiff i Baisakhu in the present suit, i.e., Civil Suit No.4—A/gQOO that after obtaining the ex parte decree on 3—11-1 993, the defendant/appellant initiated revenue proceedings to get his name recorded and tried to dispossess the plaintiff, on which he made enquiries and obtained certified copies of the revenue records and came to know on 4 11- 1996 after receivmg the copies of the revenue records that the ,defendant/appellant has obtained the ex parte decree on 3 11 1993 in CIVII; Suut No.19-A/1991 The plaintiff thus stated that the said ex partje judgment and decree dated 3-1 1-1993 in CiVil Suit No.19-A/1991 hasjbeen obtained by the defendantfa‘ppellant in a fraudulent manner and} : therefore is not binding upcn him and the defendant does not of thle¢tamhff Baisakhu M.J.C. No.22/1988 for setting aSIde the ex partef decree was rejected and thereafter Miscellaneous Civil Appeal No.2i1/19’89 was also rejected on 22-2—1994. i i i i / , derive any right tltle or Interest m the suit property by vrrtue of the said W ex parie decree dated 3 11 1993 4i The trial Court dismissed the present suit Ie .CIVII Suit N<3i 4 A/2000 after holding that the ex parte decree dated 3 11 1993 In Cr It Surt No 19 A/1991 Is not Illegal because the plaintiff had knowledge of the suit as he was deemed to have been served With the notice of ClVIl Surt No 19 A/1991 on his refusal to accept the same The trial Court came to the conclusron that the plaintiff has not examined the Process Server to prove that he was not served With the notice of CiVil Suit No.19-A/1991. The trial Court also found that the present :suit ie Civil Sult No 4-A/2000 is barred by limitation as the plaintiff has failed to speCify the date on which he gathered the knowledge about the ex pan‘e decree dated 3 11 1993 therefore it Will be treated that the period of limitation to get a decree set aSIde shall start from the date of the decree itself and since the present suit ie CiVil Suit No4 A/2000 has not been filed Within a peHod of 3 years from 3 11 1993 the suit is barred by limitation 5. ‘On appeal filed by the plaintiff/respondent No1 the frst appellate Court has allowed the appeal and thus decreed the present sUIt preferred by the plaintiff. 6. Learned counsel for the appellant has argued that the lower appellate Court should not have interfered With the Judgment and decreel passed by the trial Court and the present swt ie CiVil Suit No 4 A/ZOOO is barred by limitatton 1 m4, i . app 7. I have perused the records of the Courts below. It is born out fron§ the records that the first decree, i.e., ex parte decree dated 2-7— 198ES passed in Civil Suit No.93-A/1987 in favour of Baisakhu remained intaet in spite of filing. of M.J.C. No.22/1988 and thereafter Miseeiianeous Civii'Appeai No.21/1989 by the defendant/present eila‘nt for setting aside the ex parte decree dated 2-7—1988. 'The first decree, i.e., ex palte decree dated 2-7—1988, has, thus, become finai in between the parties. The iegai effect of the first decree is that theis‘ai‘e-deed dated 21-7—1971 has no iegai effect as if it is not in i a existence to affect the titie of the plaintiff. If that be so, preference of i , ’ theiisecond suit, i,e., Civil Suit No.19-A/1991, by the defendant/present appéeliant was itself a ma/a fide action inasmuch as in the-said suit he i has: not disclosed about the ex parte decree dated 2-7-1988 passed earlier against him in the earlier suit,.i.e., Civil Suit No.93aA/1987, in which he had moved an applicationjor setting aside the ex parte dedree. The first appellate Court, while reversing the findings of the trial Court, has recorded categorical findings which are based on sound reasoning and appreciation that the first decree dated 2-7-1988 is binbling on the parties and the sale-deed dated 21-7-1971 itself is not in existence in the eyes of law. Plea regarding the present suit being barred by limitation has also been dealt with to hold that the suit is witnin limitation. ‘J. 8. ,ln paragraph 7 of‘the plaint, the plaintiff has stated that he cam to l<now about the-ex parte decree dated 3-1 1-1993 on 4-1 1-1996 after obtaining certified copies of the revenue records and during this period l - ‘. the defendant/present appellant started creating disturbance in his l e ”5—— possession. ln the opinion of this Court the plaintiff has clearly stated the date of ansmg of the cause of action for filing the present sutt therefore It cannot be said that the present suit has not been filed I within a. period of 3 years from the date of accrual of the cause of adtion. The finding by the trial Court in this regard was not in accordance With law and has rightly been set aSide by the first i appellate Court. 9 i ln State Bank of India and others vs SNGoyaI (2008) 8 l SCQ 92 the Hon ble Supreme Court has enunCIated as to what is a substantial question of law. Paragraph 13 of the report is extracted l heteinbéiow: ‘ i l i “13. Second appeals would lie in cases which ”involve i substantial questions of law. The word “substantia/”prefixed to ”question of law” does not refer to the stakes involved in the case, nor intended to refer only to questions of law of ‘ general importance but refers 'to impact or effect of the - quest/on of law on the deCISIon In the lis between the part/es i Substantial questions of law” means not only substantial ‘l questions of law of general importance, but also substantial ‘ question of law arising in a case as between the parties. In i the context of Section 100 CPC, any question of law which 3 affects the final decision in a case is a substantial question ‘ of law as between the pan‘ies. A question of law which arises incidental/y or collaterally, having no bearing on the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question ‘ of law, by this Coult or by the High Court concerned, it cannot be said that theNcase involves a substantial question of law. lt is said that‘a substantial question of law arises [when a question of law, which is not finally settled by this Court (or by the High Coun‘ concerned so far as the State is ~g’ concerned), arises for consideration in the case. But this ‘ statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has fol/oWed or right/y applied such clear enunciation of law, obviously the case will not be considered as giving rise'to a substantial questiOn of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the High Court concerned), but the lower court had jmiSinterpreted I or misapplied the same, and correct l t t application of the law as declared or enunciated by this Court (or the High Court concerned) would have led to a 3 different decision, the appeal would involve a substantial question of law as between the parties. Even where there is ‘ an enunciatiQn of law by this Court (or the High Court concerned) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated, legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two viewpoints, it ‘ can be said that a substantial question of law arises for i consideration. There cannot, therefore, be astraitjacket definition as to when a substantial question of law arises in a case. Be that as it may." 10. ‘ In‘view of the law Iaid down by the Hon’ble Supreme Court as to what is a substantial question of law and on perusal of the records, this Court finds that the appeliant has not been abie to raise any substantial quesgtion of iaw for determination in this appeal. The present second al, therefore, fails and is hereby dismissed at the admission stage. appe. i i i i i Sdl- Prash‘ant Kumar Mishra Judge ignored or >