An ex parte injunction decree was challenged as fraudulent for withholding a compromise. The Court held the fraud pleadings insufficient, upheld the finding that the suit was time-barred, and found no perversity warranting interference. It dismissed the second appeal and dismissed the connected execution revision as infructuous.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.326 of 2007 a/w C.R.No.57 of 2008.
Judgment reserved on : 05.09.2017. Date of decision: September 12th , 2017.
1. RSA No.326 of 2007.
Dev Raj and others …..Appellants/Plaintiffs.
Versus Ishwar Dass ….Respondent/Defendant. 2. C.R. No. 57 of 2008. Dev Raj and others …..Petitioners. Versus Ishwar Dass ….Respondent.
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 No For the Appellants/ : Mr.Ajay Sharma, Advocate. Petitioners. For the Respondent : Mr.Suneet Goel, Advocate.
Tarlok Singh Chauhan, Judge.
RSA No.326 of 2007.
The plaintiffs are the appellants, who having lost before both the learned Courts below have filed the instant appeal.
1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes
2
Civil Suit No.110/93, titled “Ishwar Dass versus Dev Raj etc.” had been obtained by the respondent/defendant (hereinafter referred to as the defendant) by playing fraud, misrepresentation and withholding the compromise dated 01.06.1993 and instead of getting the suit dismissed in terms of the compromise got ex parte decree against the present plaintiffs and as such the same is nullity in the eyes of law and not binding on them. It was averred that the proceedings under Order 21 Rule 32 CPC on the basis of the fraudulent decree are also nullity in the eyes of law and the defendant has no right to claim any relief on the basis of fraudulent decree with a consequential relief of permanent injunction restraining the defendants, his successors, servants, family members and attorneys from interfering in possession and ownership of the house of the plaintiffs in Khasra No.881, Khewat No.195 min, Khatauni No.530 min, measuring 0-01-29 GM as per jamabandi for the year 1999-2000, situated in Mohal Mohtali, Tehsil Indora, District Kangra, H.P. It was further averred by the plaintiffs that the land as detailed above is “Gair Mumkin Abadi” in the ownership and possession of “abadi-deh” and the plaintiff No.1 started construction of his residential house over “abadi” land in his possession in the year 1993 and the defendant filed a Civil Suit No.110/93 for permanent injunction in the Court of Sub Judge 1st Class, Nurpur, on the allegations that the suit land was joint and plaintiff No.1 and his brothers be restrained from raising any construction over the suit land.
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written. In terms of the compromise, plaintiff No.1 completed his construction of residential house and left the place beyond the wall in Khasra No.881 where he had constructed his house and in terms of the compromise defendant Ishwar Dass in that case was allowed to use and occupy the “Nali” and vacant space and the defendant assured that he would get the suit pending in the Court dismissed as withdrawn and accordingly plaintiff No.1 did not go to the Court, but Ishwar Dass fraudulently did not withdraw the suit and got the ex parte decree against the plaintiffs without disclosing the factum of compromise and obtained decree on 18.08.1994 on the basis of falsehood, misrepresentation and withholding the compromise. Plaintiffs further averred that the defendant remained silent for about four years, so that the plaintiffs may not come to know about the factum of ex parte decree and may not get the same set aside and it was on 15.05.1998 that an application under Order 21 Rule 32 CPC was filed against the plaintiffs for taking action for non-compliance of the injunction order. On receipt of the notice, the plaintiffs contested the proceedings under Order 21 Rule 32 CPC and also produced the compromise in the Court, but the trial Court ignored the same and on 28.11.2003 directed them to remove their construction by dismantling the house and removing the material within one month at their own expenses. The defendant had been asked repeatedly to abide by the compromise dated 01.06.1993 and to get the proceedings dropped, but he refused to admit the claim of the plaintiffs, hence the suit was filed.
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maintainability, estoppel, cause of action and that the suit is barred by the principle of resjudicata, were taken. On merits, it was averred that the plaintiffs failed to appear in the civil suit and accordingly ex parte order was passed against them and compromise, if any, between the parties is not binding on the defendant. It was further averred that ex parte decree was passed against the plaintiffs on 18.08.1994 which was within the knowledge of the plaintiffs, but they disobeyed the order of the Court in the year 1998 and started construction over the suit land and he moved an application under Order 21 Rule 32 CPC before the Court which was contested by the plaintiffs and they never applied for restoration of the ex parte decree and also for setting aside the same. Hence, the plaintiffs had no cause of action and prayed for the dismissal of the suit.
learned trial Court:-
2. Whether plaintiffs are entitled for consequential relief of injunction, as prayed for ? OPP.
3. Whether suit is barred by doctrine of resjudicata, as alleged? OPD.
4. Whether present suit is not legally maintainable in the present form? OPD.
5. Whether plaintiffs are estopped from filing the present suit by their own act and conduct? OPD.
6. Whether plaintiffs have no cause of action to file the present suit? OPD.
7. Whether suit is bad for non-joinder of necessary parties? OPD.
8. Relief.”
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“Whether the Courts below have mis-read and mis-appreciated the oral and documentary evidence with special reference to Ext. PW2/A and Ext. DW2/A and statements of witnesses PW-1 to PW-3 and documents Ext. P-1 to P-5 thereby vitiating the impugned judgments and decrees?
I have heard the learned counsel for the parties and gone through the records.
“ 26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the
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weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition
PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English - International Edition
PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition
PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition)
PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition
PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC
761, the Court observed thus: (SCC p.766, para 8
"8…We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
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29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10)
"9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7)
"7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
in RSA No.436 of 2000 , titled ‘Rubi Sood and another vs. Major (Retd.)
Vijay Kumar Sud and others , decided on 28.05.2015 in the following
manner:-
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“25….. A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated.”
the Hon’ble Supreme Court in Damodar Lal vs. Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-
“8. “Perversity” has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93)
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“11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect.”
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532)
“10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent.”
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been
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successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man’s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79)
“34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication — what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
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‘103 . Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,—
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100.”
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with.”
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6, SCC p. 615)
“30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)”
This Court has also dealt with other aspects of perversity.
15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of
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the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court.”
“4. That in view of the terms of compromise plaintiff No.1 completed the construction of his residential house and left the place beyond the wall in Khasra No.881 where he had constructed his house and in terms of the compromise the defendant (Ishwar Dass) in this case was allowed to use and occupy the Nali and vacant space and the defendant assured that he would get the suit pending in the Court dismissed as withdrawn and the plaintiff believing in the good sense of the defendant carried on his work and did not go to Court but the plaintiff
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fraudulently did not withdraw the suit and got an ex-parte decree against the plaintiffs without disclosing the factum of compromise by the plaintiffs and in this manner the defendant succeeded in getting a fraudulent decree on 18-8-94 on the basis of falsehood, misrepresentation and withholding the compromise.”
“ 4. Particulars to be given where necessary .- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.”
‘Fraud’ is obtaining of an advantage by unfair or wrongful
means.
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allegations, however strong, if unaccompanied by sufficient particulars, are not enough and the Court will not take notice.
“fraudulent/misrepresentation” have not given any specific particulars regarding fraud and misrepresentation and it is more than settled that a vague or general plea can never serve this purpose of Order 6 Rule 4 CPC and the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence and the unfair advantage obtained by the other.
wherein it was held as under:
“10. Before, however a court is called upon to examine whether undue influence was exercised or not, it must scrutinize the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal (1964) 1 SCR 270: (AIR 1963 SC 1279) above referred to. In that case it was observed (at p. 295 of SCR): (at p. 1288 of AIR):
“A vague of general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other.”
“25. There was practically no evidence about the domination of Balaram over Prasanna at the time of the execution of the deed of gift or even thereafter. Prasanna, according to the evidence, seems to have been a person who was taking an active interest
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in the management of the property even shortly before his death. The circumstances obtaining in the family in the year 1944 do not show that the impugned transaction was of such a nature as to shock one’s conscience. The plaintiff had no son. For a good many years before 1944 he had been making a living elsewhere. According to his own admission in cross-examination, he owned a jungle in his own right (the area being given by the defendant as 80 bighas) and was therefore possessed of separate property in which his brother or nephew had no interest. There were other joint properties in the village of Parbatipur which were not the subject matter of the deed of gift. It may be that they were not as valuable as the Lokepur properties. The circumstances that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death is not on the face of it an unconscionable transaction. Moreover, we cannot lose sight of the fact that if Balaram was exercising undue influence over his father he did not go to the length of having the deed of gift in his own name. In this he was certainly acting very unwisely because it was not out of the range of possibility that Subhas after attaining majority might have nothing to do with his father.”
“15. While it is true that ‘undue influence’, ‘fraud’, ‘misrepresentation’ are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded, with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed
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and no contention was raised on that point at any stage in the trial court, or, in the first round, even before the first appellate court.”
20. In Sukhdei (Smt.) (dead) by LRs vs. Bairo (dead) and
others (1999) 4 SCC 262 the Hon’ble Supreme Court held that while pleading fraud, particulars necessary for establishing the same should be specifically stated in the plaint and it was further held that findings on a question of fraud concurrently arrived at by the Courts below should not be interfered with by the High Court while exercising power under Section 100 of CPC. The aforesaid Rule is mandatory and no departure from the Rule is permissible while leading evidence. As regards the plea of misrepresentation, the same means wrong, false or misleading representation.
“…………The allegation of fraud, coercion and undue influence could not be proved by the plaintiffs and as such both the courts below have rightly held that the plaintiffs have failed to prove that the gift deed was as a result of fraud, coercion and undue influence. The possession of the land in dispute was given to the defendant and the mutation of entry in the revenue record in her name was made by the Patwari in the presence of Beli Ram during his life time. The execution of the gift deed was the personal right of the donor and since Beli Ram had not assailed the gift made by him in favour of the defendant during his life time, the plaintiffs have failed to establish that the donee had not rendered any service to the donor during his life time. The gift has been validly made by the donor in favour of the donee voluntarily and with his free will and accepted by the donee it cannot be said
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that the gift was induced by undue influence under Section 16 (2) & (3) of the Indian Contract Act, 1872 and was as a result of fraud as defined under Section 1 of the Act. The ratio of the judgment in Ladli Parshad Jaiswal v. The Karnal Distillery Co., Ltd. Karnal & Ors., AIR 1963 Supreme Court 1279 strongly relied on by the learned counsel for the plaintiffs in my view does not advance the case of the plaintiffs that the gift in question was as a result of undue influence under S. 16 (2) & (3) of the Contract Act, 1872. In Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib & Ors., AIR 1967 Supreme Court 878, it has been observed that law under Section 122 of the Transfer of Property Act, 1882 as to undue influence is the same in case of a gift inter vivos as in case of a contract. It has further been held that the court trying a case of undue influence under Section 16 of the Contract Act, 1872 must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor, and (2) has the donee used that position to obtain an unfair advantage over the donor? Upon the determination of these issues a third point emerges, which is that or the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. The judgment further proceeded to observe that merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. In this view of the matter, as noticed hereinabove, the plaintiffs have miserably failed to establish that the gift deed was executed by donor in favour of the donee under undue influence or fraud……”
be noticed that the plaintiffs examined three witnesses in support of their claim.
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Despite this, the defendant did not withdraw the case and by playing fraud obtained ex parte decree against them. He further stated that it was on account of the compromise that he did not appear in the Court and after four years, the defendant filed an execution petition against him under Order 21 Rule 32 CPC wherein he disclosed to the Court about the compromise having been effected between the parties, but despite that order was passed against him. In cross-examination, this witness stated that the house was constructed by him in the year 1993, but he denied that the conditions of the compromise were not fulfilled by him. He stated that the construction had been raised by him over Khasra No.881. He further admitted that the compromise dated 01.06.1993 did not bear the stamp of the Pradhan.
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ex parte decree was obtained by him by concealing the compromise. He further denied that the plaintiffs had constructed the house as per the terms of the compromise and “Nali” and vacant space had been left by them behind the house.
This in entirety is the evidence led by the parties.
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“ 15……The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.”
“12. The phrase ‘substantial question of law’, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying “question of law”, means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in
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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 suffixing 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 & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase “‘substantial question of law” as it was employed in the last clause of the then existing Section 110 of the C.P.C. (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 as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-
“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 view, 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.”
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-
“The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be
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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.”
“14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. 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, in so far 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 is 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.”
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The substantial question of law, as referred to above, is answered accordingly.
C.R. No. 57 of 2008.
( Tarlok Singh Chauhan )
September 12th , 2017. Judge. (krt)
2 issues framed by the court
Were the concurrent findings vitiated by misreading or misappreciation of the compromise, subsequent document and witness evidence?
Did the allegations challenging the ex parte decree satisfy the particularity required for pleading fraud and misrepresentation?
Colour shows how this judgement treated each authority
Arulvelu and another vs. State Represented by the Public Prosecutor and anotherRelied on¶38
Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 · Who else cites this
Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and othersRelied on¶63
RSA No.436 of 2000
Damodar Lal vs. Sohan Devi and othersRelied on¶72
Damodar Lal vs. Sohan Devi and others (2016) 3 SCC 78 · Who else cites this
Subhas Chandr a Das Mushib v. Ganga Prosad Das Mushib and othersRelied on¶113
Subhas Chandr a Das Mushib v. Ganga Prosad Das Mushib and others AIR 1967 SC 878 · Who else cites this
Afsar Shaikh and another v. Soleman Bibi and othersRelied on¶120
Afsar Shaikh and another v. Soleman Bibi and others AIR 1976 Supreme Court, 163, · Who else cites this
Sukhdei (Smt.) (dead) by LRs vs. Bairo (dead) and othersRelied on¶125
Sukhdei (Smt.) (dead) by LRs vs. Bairo (dead) and others (1999) 4 SCC 262 · Who else cites this
Upasna and others vs. Omi DeviRelied on¶126
Upasna and others vs. Omi Devi, 2001 (2) Current Law Journal (H.P.) 278
Santosh Hazari vs. Purushottam Tiwari (deceased) by LRsRelied on¶147
Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs (2001) 3 SCC 179 · Who else cites this
2 provisions across 2 enactments
Dev Raj and others
Dev Raj and others
Ishwar Dass
Tarlok Singh Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
