Paras Nath vs Bankey Lal

Arvind Kumar Mishra-I, J.—Heard learned counsel for the appellant and perused the material available on record. This is defendant''s second appeal under Section 100 C.P.C.

The plaintiff-respondent instituted Original Suit No. 2215 of 1994 against Paras Nath in the Court of the VII-Additional Civil Judge, (Junior Division), Allahabad, for obtaining decree of permanent injunction which was contested by the defendant-appellant and the original suit was ultimately decreed in favour of the plaintiff vide judgment and decree dated 29.5.2000, where against Civil Appeal No. 101 of 2000 was preferred before the Special Judge (EC Act)/Additional District Judge, Allahabad which was dismissed vide judgment and decree dated 28.11.2014.

It emanates from record that the learned trial Court framed in all six issues and recorded finding specifically on all issues while decreeing the suit. Learned counsel for the appellant contended that the learned first appellate Court while deciding the appeal did not frame any specific point for determination of the appeal which is against the spirit of the provisions of Order 41 C.P.C.

Learned counsel further submitted that both the Courts below have not examined and scrutinized the evidence properly and the view taken by the Courts below is not correct.

As regards submission made by the learned counsel for the appellant that evidence has not been examined and scrutinized properly by the Courts below, learned counsel for the appellant could not point out as to which part of the evidence has been misread and the relevant evidence has been omitted or inadmissible has been taken into account.

Instead of satisfying above query the learned counsel for the appellant stuck to the same arguments that both the Courts below did not examine the evidence properly. Suffice to say, that argument alone cannot be ground to act upon it, in the absence of any supporting material. In so far as the plea that the Courts below did not appreciate correctly the evidence is concerned, only this much would be observed that the plea will by itself not give rise to any question of law and what to say about substantial question of law. For substantial question of law the appellant is required to show that the Courts below took note of inadmissible evidence and irrelevant evidence and omitted to consider admissible evidence.

In so far as contention that the learned first appellate Court did not frame any point for determination of the appeal is concerned, suffice is to observe that it is always not necessary for the first appellate Court to lay down in specific words points for determination but the point for determination of the appeal is to be gathered from overall reading of the judgment. In the present context, it can be observed that the appellant raised specific objection before the first appellate Court while assailing the decree passed by the trial Court and also in the original suit. The plea/objection to the decree as raised by the appellant before the first appellate Court was specifically denied by the respondent''s side and the first appellate Court basically based its findings on the above plea of the appellant. The very plea made by the appellant while assailing the finding recorded by the trial Court assumes nomenclature of the point for determination of the appeal which fact is very much obvious from a simple reading of the judgment of the first appellate Court. The first appellate Court has very much considered all the pleas raised by the appellant before it and concurred with the finding of the trial Court, therefore, it cannot be said that the appellate Court''s judgment sans the point for determination.

It appears that learned counsel for the appellant wants this Court to assume nomenclature of the first appellate Court and to re-appreciate evidence and fact which have been concluded by concurrent finding of the Courts below. This plenary exercise cannot be done in second appeal in view of concurrent findings which are very much based upon proper appreciation of evidence. It would not be out of reference to note at the cost of repeation, that the scope of exercise of the jurisdiction by the High Court in second appeal under Section 100 C.P.C. is limited only to the substantial question of law. To be a substantial question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. This very aspect of substantial question of law has been elaborated by Hon''ble Apex Court in the case of Govindaraju Vs. Mariamman, AIR 2005 SC 1008 : (2005) 3 CTC 504 : (2005) 2 JT 107 : (2005) 2 SCC 500 : (2005) 1 SCR 1100 : (2005) 2 UJ 763 .

In the present case, both the Courts below while recording concurrent finding have taken into consideration all the points raised and answered between the parties, pros and cons, therefore it is incumbent upon the appellant to come out with the particular piece of evidence which has been left untouched by the Courts below. The scope of substantial question of law has been further elaborated in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 251 ITR 84 : (2001) 2 JT 407 : (2001) 1 SCALE 712 : (2001) 3 SCC 179 : (2001) 1 SCR 948 : (2001) AIRSCW 723 : (2001) 1 Supreme 642 and Thiagarajan and Others Vs. Sri Venugopalaswamy B. Koil and Others, AIR 2004 SC 1913 : (2004) 2 CTC 354 : (2004) 5 JT 54 : (2004) 3 SCALE 345 : (2004) 5 SCC 762 : (2004) 3 SCR 1229 : (2004) AIRSCW 2939 : (2004) AIRSCW 1618 : (2004) AIRSCW 4851 : (2004) 3 Supreme 474 : (2004) 6 Supreme 396 . The aforesaid view is supported recently by Hon''ble Apex Court in the case of Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, (2011) 330 ITR 1 : (2011) 1 SCC 673 : (2011) 196 TAXMAN 136 , Union of India (UOI) Vs. Ibrahim Uddin and Another, (2012) 6 JT 466 : (2012) 4 RCR(Civil) 727 : (2012) 6 SCALE 476 : (2012) 8 SCC 148 : (2013) AIRSCW 2752 : (2012) 4 Supreme 585 . The aforesaid decisions have been followed by this Court in the case of State of U.P. and others v. Stanti Dem and others, 2013 (7) ADJ 37 (NOC).

To sum up the appeal, it can be conveniently observed that both the Courts below have taken comprehensive view of the material/evidence available on record and have recorded concurrent findings as discussed above. Learned counsel for the appellant could not point out any manifest error or illegality in the impugned judgments of the Courts below so that any substantial question of law may arise for determination in the instant second appeal. In absence of any substantial question of law, the instant second appeal deserves to be dismissed at this stage under Order 41 Rule 11 C.P.C. Dismissed, accordingly.