IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 249 of 2006 Date of decision: 24.11.2010 Daulat Ram …. Petitioner Versus Surinder Singh ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioner: Mr. Romesh Verma, Advocate. For the respondent: Mr.Dabender Sharma, vice Mr.Ashok Sood, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) 1. This petition under Article 227 of the Constitution of India is directed against the judgment and decree passed by the learned Additional District Judge, Shimla in Civil Appeal No.81-S/13 of 2005 whereby he allowed the appeal filed by the respondent (hereinafter referred to as the ‘plaintiff’) and set aside the judgment and decree passed by the learned Trial Court and passed a decree of Rs.20,00/- in favour of the plaintiff. 2 2. This petition has been filed under Article 227 of the Constitution of India since no Regular Second Appeal is maintainable in a case where the value of the mule is less than 25,000/-. It is well settled law that the powers vested in this Court under Article 227 of the Constitution of India cannot be used as a substitute for an appeal and this Court in exercise of its supervisory jurisdiction cannot act as an Appellate Court. Even a second appeal under Article 100 is only maintainable when a substantial question of law is involved. 3. The first question which arises is whether any substantial question of law arises in this appeal or not. The plaintiff claimed that the defendant had killed his mule and the value of his mule is Rs.25,000/-. The defendant denied this fact. An FIR Ext.DA in respect of the same incident had been filed and this FIR was lodged at the instance of the plaintiff in which he had stated that his sister, Kaushlaya Devi was standing near the water tank where the mule was later found dead. In the FIR, it was also stated that the plaintiff suspected that his mule had been killed by the defendant. 3 4. Smt.Kaushalaya Devi appeared in Court as PW/2 and stated that she had seen the defendant killing the mule with a sickle. The question as to whether the defendant killed the mule or not is a pure question of fact and not a question of law. 5. Sh.Romesh Verma, learned counsel for the petitioner urges that the learned Lower Appellate Court has not considered the version set out in the FIR. Unfortunately, when the plaintiff appeared in the witness box, neither the plaintiff nor his sister was confronted with the material recorded in the FIR. Therefore, this cannot be used at this stage. 6. The next submission of Sh.Verma is that there was no material on record to show that the learned Lower Appellate Court has not given any finding as to what was the cost of the mule and has just passed the decree without any discussion. There is no manner of doubt that the learned Lower Appellate Court has just observed that the value of the mule was not less than 20,000/- without referring to any evidence. However, I have gone through the evidence and found that the plaintiff clearly stated in his testimony that the value of the mule was 4 Rs.20,000/- and furthermore, the plaintiff was not cross- examined in this regard at all. Therefore, there was evidence on record on this issue. 7. In view of the above discussion, I find that this is not a fit case to exercise the supervisory jurisdiction of the Court under Article 227 of the Constitution of India. Therefore, the petition is dismissed. No order as to costs. November 24, 2010 ( Deepak Gupta ) (m) Judge