The High Court dismissed the second appeal under Section 100 CPC. The bench held that the questions raised were purely factual matters regarding whether a cheque represented a loan or a refund of earnest money. Consequently, no substantial question of law arose.
Second Appeal dismissed in limine; no costs awarded.
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 FOR THE STATE OFTELANGANA AT HYOERABAD
WEDNESDAY, THE FOURTH DAY OFMARCH TWO THOUSAND AND TWENTY
PRESENT
THE HONOURABLE DR. JUSTICE SHAMEEM AKTHER
SECOND APPEAL NO: 75 OF 2020
Appeal under section 100 against Judgment and Decree dated 27 .11.2019 in AS No.9 of 2018 on the file of the Court of the Vlll Additional District Judge, Nizamabad preferred against Judgment and decree dated. 28.11.2017 in OS No. 143 of 2015 on the file of the Court of the Principal Junior Civil Judge, Nizamabad Between:
Manchala Srinivas, S/o. Kalisham, aged about. 50 years, Occ. Business (Partner) C/o Sri Surya Femina Collections, H.No. 7-10-99611 beside Delhiwala Sweet Home, R.P Road, Nizamabad, 503001 & R/o FIat No. 306, Prabhuchaya Apartments, Near lVahan Apartments, Vinayaknagar, Nizamabad.
.,.APPELLANT/DEFENDANT
AND
Mamidi Prakash @ Manchala Prakash, S/o Ramulu, aged about. 70 years, Occ. Business, R/o H.No. 7-10-996, Rashtrapati Road, Nizamabad
,..RESPONDENT/PLAINTIFF
Counsel for the Appellant: SRI T V KALYAN SINGH
Counsel for the Respondent: NONE APPEARED
The Court made the following: ORDER
THE I{ON,BLE DT. JUSTICE SHAMEEM AKTHER
=$ECONDAPPEALNo.75
JUDGMENT:
This Second Appeal, under Section 100 of th: Code of Civil Procedure, 1908. is filed by the appellant/defendant, challenging thejudgment and decree, dated 27.11.2019, passerl in Appeal Suit No.9 of 2018 by the VIII Additional District Judre, Nizamabad, whereby, the judgment and decree dated 28.11.i017 passed in O.S.No.143 of 2015 by the Principal lunior Civil Jud3e, Nizamabad, was set aside and the subject suit was decreed as prayed for.
2, Heard the learned counsel for the appellantrdefendant and perused the reco rd.
"The plaintiff and the defendant were acque inted with each other. At the request of the defendant, theplain:iff advanced an amount of Rs.70,000/- as hand loan to the defendant on 24.03.20t4, through cheque bearing No.41 drawn on Bank of India. The said amount was transferred to the account of the defendant on the same day. Subsequently, in spite of repeated requests, the defendant failed to repay the amount due by dodgi rg the matter on False pretexts. The plaintiff, after issuing a legal rotice, dated
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10.05.2015, to the defendant, filed the subject suit for recovery of an amount of Rs.91,373l- together with interest @ 24o/o per annum against the defenda nt. "
"The averments made in the plaint are false. The defendant is a businessman and he obtained one mulgi at Rashtrapathi Road, Nizamabad, from the plaintiff in the year 2005. Adjacent to that premises/ one Smt. Bhagyalaxmi, who is the relative oF the plaintiff, had three mulgies. The defendant obtained one mulgi, i.e., second mulgi, from the said Smt. Bhagyalaxmi in the year 2008 to run his shop on monthly rent oF Rs.2000/-. The defendant paid an amount of Rs.40,000/- to Smt. Bhagyalaxmi towards advance in the presence of Sri G. Dharmaraju and Sri K.S.Prakash Rao and he invested an amount of Rs.30,000/- to renovate the said mulgi with tiles and POP. The original owner agreed to refund the amount of Rs.70,000/- at the time of vacating thepremises and executed receipt to that efFect. The defendant handed over the receipt of Rs.70,000/- issued by the original owner to the plaintiff and the plaintiff issued cheque to the defendant towards refund of advance amount expenses and it was not debt. The defendant was financially sound and there was no necessity for him to borrow the amount from the plaintiff. The suit is liable to be dismissed."
a) Whether the plaintiff is entitled to claim the suit amount ol Rs.9L,373 / - with future interest?
b) To what relief?
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7, On behalf of the plaintiff, the plaintiff himself was examined as P.W.1 and Exs.A.1 to A.3 were marked. On br:half of the defendant, thr: defendant himself was examined as D. W.1 besides examining D.V/s.2 and 3 and Exs.B.1 to 8.47 were narked.
10, The Sec:onC Appeal is sought to be admitted rnl:he following substanti.rl qr e:,; .ions of law:
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The findings recorded by the first appellate Court a13 perverse and not based on the evidence on record and ultimatel)' prayed to set aside thejudgment and decree under challenge and allow the Second Appeat as prayed for.
L2. There cannot be any dispute that, under the arnerded Section 100 of CPC, a party aggrieved by the decree passed by the first appellate Courtflas no absolute right of appeal. He can neither challenge the decree on a question of fact or on a(luestion of law. The second appeal lies only where the High Court s satisfied that the case involves a substantial question of l,rw. The word 'substantial' as qualifying 'question of law', means and conveys of having substance, essential, real, of sound wo.th, important, considerable, fairly arguable. A substantial question of law should directly and substantially affect the rights of the par'ies. Aquestion of law can be said to be substantial between th€parties, lf the decision in appeal turns one way or the other on th(rparticular view of law. But, if thequestion does not affect the de:ision, it cannot be said to be substantialquestion between the parti:s. Recording a finding without any evidence on record; disr:gard or nonconsideration of relevant or admissible evidenr.e; taking into consideration irrelevant or inadmissible evidence; ler"/erse finding are some of thequestions, which involve substan:ialquestions of law.
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Nizamabad branch. The plaintiff has also filed Ex.A.1-original pass book, Ex,A.2-office copy of legal notice, dated 10.05.2005, and Ex.A.3-returned postal cover, in support oF his case. Though the defendant contended that payment of Rs.70,000/- was made by the plaintiff towards refund of the earnest money of the defendant, absolutely there is no receipt or any document to substantiate the same. Further, admittedly, the defendant was tenant of Smt. Bhagyalaxmi. The defendant did not even file any receipt to show that advance money was paid to said Bhagyalaxmi. Even the said Bhagyalaxmi was not examined on behalf of the defendant to substantiate that such an advance was received by her. The defendant had examined DWs.1 to 3 to substantiate his case that payment of Rs.70,000/- by the plaintiff by way of the cheque in question was towards refund of the earnest money oF the defendant. This aspect was dealt with by the first appellate Court in detail, disbelieving the defence setup by the defendant and was pleased to reverse the findings recorded by the trial Court vide judgment and decree dated 27.11.2019 and decreed the suit as indicated above. The return of earnest money by theplaintiff to the defendant, as contended by the defendant, is aquestion of fact and the appellate Court is the ultimate Court to determine such factual issues in between the parties to the litigation. Admittedly, there is no single document to substantiate that plaintiff returned the earnest money to the defendant by way of subject cheque, dated 24.03.2014.
L4. A plain reading of thequestions sought to be raised in this appeal as substantial questions of law are purequestions of fact,
,1
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which canlot be dealt with in this appeal filed under Section 100 of C.P.C. W,.lere the First appellate court had exer:ised its discretion in ajudicial Tanner, lt cannot be termed to be an error, either of law or of procedure, requiring interference in a ilecond Appeal. After re-ilppreciating the entire evidence on record, the first appellate Co'rrt recorded its findings in favour of theplaintiff, which are not f,er,/erse. The said findings are bas€ d on evidence on record. The'e is nothing to take a diFferent view. The lower appellate CoJrt has neither overlooked the admissitrle evidence nor acted upc n inadmissible evidence. After careful examination oF the pleadings, evidence and the contentions, this(-out finds that no question rf aw, much less substantial questlon of law, isjnvolved in this Se:ond Appeal. The appeal is devoid of nrerit and is liable to be dism issed.
Nliscel aneous Petitions, if any, pending in :his Second Appeal,
shall stand closed.
SiD/.K.SRINIVASARAO DEPUTY REGISTRAR //TRUE COPY//
SEC OFFICER
To,
1 The VlllAdditionalDistrictJudge, NizamabadNizamebad District i ri .pi,""lirl iunior Civit Judg"eNizamabadNizama)ad District' 5 o.i,'cc i""5r' iv Krlv"n Sing6 Advocate [oPUC] 4 Two CDCoPies JR JIVl
HIGH COURT
DATED:0410312020
-/::::::::_
(
,t
i r HAI 2020
i).!
ORDER
SA.No.75 of 2020
DISMISSING THE SECOND APPEAL WITHOUT COSTS
<br>,
I
2 issues framed by the court
Whether the second appeal involves a substantial question of law requiring interference with the first appellate court's findings on facts.
Whether the belower appellate court erred in dismissing the defendant's contention that the payment was a refund of earnest money rather than a loan.
1 provisions across 1 enactments
Manchala Srinivas
Mamidi Prakash
SHAMEEM AKTHER
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
