IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.03.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1303 of 2008 Saraswathi ..Appellants/Plaintiffs vs. Radhakrishnan ..Respondent/Respondent This second appeal is filed under Sec.100 CPC against the judgment and decree dated 30.04.2008 in A.S.No.26 of 2007 on the file of Subordinate Court, Vellore confirming the judgment and decree dated 13.03.2007 in O.S.No.780 of 2005 on the file of Additional District Munsif Court, Vellore. For Appellants : No appearance For Respondent : No appearance J U D G M E N T This second appeal is focussed by the original plaintiff, animadverting upon the judgement and decree dated 30.04.2008 passed in A.S.No.26 of 2007 by the Subordinate Court, Vellore, confirming the judgment and decree of the trial Court, namely, Additional District Munsif Court, Vellore, in O.S.No.780 of 2005. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court. 2. Pithily and precisely, tersely and briefly, avoiding discursive delineation of facts in view of the case of both sides having been set out in detail in the judgments of both the Courts below, I would like to set out the germane facts thus: The second appellant/plaintiff herein filed the suit O.S.No.780 of 2005 seeking the relief of declaration of title and permanent injunction in respect of an immovable property. While so, the defendant entered appearance and filed the written statement setting out the relevant facts including the pendency of E.A.No.478 of 2005 in the Court concerned regarding the same subject matter of the suit property. Whereupon, the trial Court took up preliminary issue as to the maintainability of the suit in view of Order 21 Rules 97 and 101 of CPC. Ultimately, the lower Court dismissed the suit on the ground https://hcservices.ecourts.gov.in/hcservices/ that in view of the pendency of such E.A. proceedings, separate suit is not tenable and as against it, an appeal was filed, for nothing but to be dismissed by the First Appellate Court, confirming the judgment and decree of the trial Court. 3. Being disconcerted and aggrieved by the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds as set out in the memorandum of appeal and also suggesting the following proposed substantial questions of law: "1. When the plaintiff seeks for relief with reference to 2 items of property and the application filed under 21 Rule 97 concerning only one item, still are the Courts below right in dismissing the suit as not maintainable? 2. Is the learned Subordinate Judge right in dismissing the application under Order 21 Rule 97 CPC on the ground that the memo filed was not pressed especially when under the Memo, the plaintiff wanted both the suit and application under Order 21 Rule 97 to be tried together?" 4. Despite printing the names concerned, none appeared. 5. A bare perusing of and poring over the relevant records including the typed set of papers and the certified copies of judgments of both the Courts below, would display and demonstrate, expatiate and convey that in a different suit, viz., O.S.No.301 of 2004, which was one for specific performance, a decree was passed. Whereupon, E.P.No.32 of 2005 emerged by way of executing the decree in O.S.No.301 of 2004 and at that time, the plaintiff/second appellant herein filed E.A.No.478 of 2005 setting up claim over the suit property involved in O.S.No.301 of 2004. Nonetheless, the same plaintiff/second appellant herein filed the present suit concerned O.S.No.780 of 2005 seeking declaration and possession. It is ex facie and prima facie clear that both the Courts below adverting to the relevant provisions of Order 21 Rules 97 and 101 of CPC, clearly and categorically held that a separate suit was not maintainable and there could be no second thought over it, in view of the settled legal position. 6. As such, the plaintiff/second appellant herein very conveniently in order to bye pass such proposition of law would come forward with a plea as though in the suit O.S.No.780 of 2005 concerned initially only one property was found set out which was the subject matter of the earlier suit in O.S.No.301 of 2004 and consequently the subject matter of E.A.No.478 of 2005, and that one other property was included in O.S.No.780 of 2005, and to that effect, a memo was filed before the appellate Court, but the appellate Court dismissed it. https://hcservices.ecourts.gov.in/hcservices/ 7. A perusal of the appellate Court's judgment would reveal that I.A.No.35 of 2008 was filed before the appellate Court seeking permission of the Court to file copy of the memo which was filed before the lower Court, presumably for adding one more property as per the plaintiff/second appellant. But the appellate Court correctly dismissed that I.A. with a finding that no order was passed in that memo by the trial Court itself. 8. I am at a loss to understand as to how a litigant, namely, the plaintiff/second appellant herein after filing the suit totally antithetical to the embargo contained in Order 21 Rules 97 and 101 of CPC, subsequently as an afterthought try to include one other property, so as to give an impression as though even though the suit might be hit by Order 21 Rules 97 and 101 of CPC, it will not hit by such provision if a new property is added in the suit. If at all, the plaintiff/second appellant is having a case with regard to one other item which was not included in the main suit, he ought to have taken steps to initiate appropriate legal action and he cannot tinker with the illegally instituted suit in violation of Order 21 Rules 97 and 101 of CPC and try to give artificially life to it. 9. At this juncture, my mind is redolent and reminiscent of the following decision of the Hon'ble Apex Court reported in (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL, certain excerpts from it 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. . . . . . . ." 18. . . . . . It has to be kept in mind that the right of appeal is neither a natural nor an inherenth 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. . . . . . https://hcservices.ecourts.gov.in/hcservices/ 21. . . . . 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 applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." https://hcservices.ecourts.gov.in/hcservices/ 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) One other decision of the Hon'ble Apex Court could also be cited as under: 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 adhering to the procedure prescribed under Section 100 of the Code. It has further been found in a number of cases https://hcservices.ecourts.gov.in/hcservices/ 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." It is therefore crystal clear that without any substantial question of law, second appeal cannot be entertained. Here my discussion supra would evince that absolutely there is no question of law, much less substantial question of law involved in this matter. As such, this Second Appeal is dismissed. No costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar gms https://hcservices.ecourts.gov.in/hcservices/ To 1.The Subordinate Judge, Vellore. 2.The Additional District Munsif Court, Vellore. S.A.No.1303 of 2008 SSR (CO) GSK 15.04.2009. https://hcservices.ecourts.gov.in/hcservices/