Plaintiff's second appeal against dismissal of his injunction suit over kiosk licence transfer by Gulab Bai, upheld by first appellate court. High Court held no substantial question of law arose and dismissed the appeal.
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.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Civil Second Appeal No. 170/2024
Rajesh S/o Sh. Ramvilas, Aged About 31 Years, R/o Dukan Thadi No. 100, Purani Sabzi Mandi, Kota.
----Appellant
Versus
----Respondents
For Appellant(s) : Mr. Sameer Sharma For Respondent(s) :
HON'BLE MR. JUSTICE ASHOK KUMAR JAIN
Order
02/04/2024
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Gulab Bai. The documents of transfer were neither exhibited in the evidence of the plaintiff nor in evidence of defendant No.2, therefore, this Court cannot consider that Gulab Bai has agreed for transfer of licence to Rajesh.
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"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. “
In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC
405 , Hon’ble Supreme Court explained the purpose of framing
question of law in following manner:
“a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question.
b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon.
c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.”
SCC Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following words:-
“(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.”
Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar &
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Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the
scope of Section 100 of CPC and summarised the law as under:
13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction.
13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that:
“At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was:
(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such question;
(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;
(iv) Another part of the section is that the appeal shall be heard only on that question.”
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Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71
13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:-
a) Not previously settled by law of land or a binding precedent.
b) Material bearing on the decision of case; and (c) 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. Therefore, it will depend on facts of each case.
Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and Chandrabhan v. Saraswati 2022 SCC Online SC 1273
13.4 Non-formulation of substantial question(s) of lawrenders proceedings “patently illegal”. This Court’s decisions in Umerkhan v. Bimillabi (2011) 9 SCC 684 and Shiv Cotex v. Tirgun Auto Plast Pvt Ltd. & Ors. (2011) 9 SCC 678 indicate this position.
14.1 If the Court is of the view that a question framed is to be altered, deleted or a new question is to be added, then the Court must hear the parties.
14.2 For both the above principles, reference may be made to Gajaraba Bhikhubha Vadher v. Sumara Umar Amad (2020) 11 SCC 114 where the following principles were observed: -
a) The substantial question of law framed by the High Court must be answered, with reasons. Disposing off the appeal without answering the same cannot be justified.
b) If a need is felt to modify, alter or delete a question, a hearing must be provided to the parties in respect thereof.
14.3 When the case is admitted, but upon hearing when it is found that no substantial question of law arises for consideration, reasons should be recorded in such dismissal.
“4. Our attention is drawn by the learned counsel for the respondents to the provisions of Section 100(5) of the Civil Procedure Code where the respondent to a second appeal is permitted “to argue that the case does not involve such question” i.e. the questions formulated earlier. No doubt, but then the order on the second appeal should indicate, howsoever briefly, why the questions formulated at the earlier stage had, at
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the stage of final hearing, been found to be no questions of law.”
“15. It, furthermore, should not ordinarily frame a substantial question of law at a subsequent stage without assigning any reason therefor and without giving a reasonable opportunity of hearing to the respondents. [See Nune Prasad v. Nune Ramakrishna [(2008) 8 SCC 258 : (2008) 10 Scale 523] ; Panchugopal Barua v. Umesh Chandra Goswami [(1997) 4 SCC 713] (SCC paras 8 and 9); and Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438] (SCC paras 10 and 12)].
16.1 This Court in Mehboob-Ur-Rehman v. Ahsanul Ghani , (2019) 19 SCC 415 observed in respect of application of Section 100(5) CPC as under:-
a) It is not rule under proviso to sub-section (5) to hear any other substantial question of law irrespective of the question(s) formulated, so as to annul other requirements of S. 100, CPC. b) Proviso to come in operation in exceptional cases where reasons are to be recorded by High Court.
16.2 It has further been held that the application of this section is only when some questions, substantial in law, already stand framed. (B.C. Shivashankara v. B.R. Nagaraj ) (2007) 15 SCC 387.
16.3 Wrong application of law laid down by the Privy Council, Federal Court or the Supreme Court, will not qualify for substantial question of law and neither wrong application of facts. 16.4 If on an issue, the trial court discusses the evidence but does not return a finding thereon, High Court in jurisdiction under Section 100, CPC may do so. Reference be made to Govindbhai Chhotabhai Patel v. Patel Ramanbhai Mathurbhai (2020) 16 SCC 255
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This Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722 , observed-
“6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law…”
16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 referring to various other cases held:- a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse.
b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity. c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection.
This position was reiterated by Avtar Singh & Ors. v. Bimla Devi & Ors (2021) 13 SCC 816. 17.1. In aid of such a restricted application, an essential aspect in ensuring that it does not acquire the nature of a “third appeal” is the limited possibility of appreciation of evidence and connectedly, the restriction on upturning concurrent findings of fact. However, there are certain exceptions to the rule as pointed out by this Court in Nazir Mohamed v. J. Kamala (2020) 19 SCC 57 as under:
“33.4. The general rule is, that the 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:
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(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. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”
17.2 The extent of the same may be underscored by the observation that:
“32. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in V. Ramachandra Ayyar v. Ramalingam Chettiar [V. Ramachandra Ayyar v. Ramalingam Chettiar , AIR 1963 SC 302] . 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.”
(ASHOK KUMAR JAIN),J
MONU /26
1 issue framed by the court
Whether the grounds raised by the appellant give rise to a substantial question of law warranting admission of a second appeal under Section 100 CPC.
Colour shows how this judgement treated each authority
Chunilal V. Mehta & Sons Ltd. Vs. Century Spg. and Mgf. Co. Ltd.Relied on¶10
AIR 1962 SC 1314 · Who else cites this
Amar Singh Vs. Dalip SinghReferred¶13
(2012) 13 SCC 405 · Who else cites this
Chandrabhan Vs. SaraswatiApplied¶14
2022 SCC Online (SC) 1273 · Who else cites this
Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors.Relied on¶12
Civil Appeal No. 6070/2023 (SLP(C)No.20183 of 2022)
2 provisions across 1 enactments
Rajesh S/o Sh. Ramvilas
Gulab Bai W/o Puranmal (Deceased)
Hemlata W/o Ramvilas
Nagar Nigam, Kota Through Mahapaur
Ashok Kumar Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
