Section 100 CPC admission of Second Appeal is not routine- In view of the amendment to Section 100 CPC admission of Second Appeal is not routine and the appellants must show the Second Appeal involves a substantial question of law. Substantial question of law has not been defined but it has been stated that it substantially affects the rights of the parties. When the findings are not based upon admissible evidence or when inadmissible evidence has been taken into consideration or when both the courts below gave a perverse finding, then it can be said that a substantial question of law is involved.


 THE HON’BLE SRI JUSTICE K.C. BHANU


SECOND APPEAL NOS.419 OF 2009 AND 93 OF 2013


COMMON JUDGMENT:
         
These Second Appeals are filed under Section 100 CPC against the decree and common judgment dated 30-08-2007 passed in A.S.Nos.40 of 2000 and 44 of 2000 in O.S.Nos.352 of 1993 and 136 of 1999 respectively on the file of the Senior Civil Judge, Kovvur.

2.      Heard both sides. For the sake of convenience, the parties herein are referred to as arrayed in the trial court.

3.      O.S.No.352 of 1993 and 136 of 1999 were filed before the Prl. Junior Civil Judge, Kovvur, for permanent injunction restraining the defendants and their men from interfering with the plaintiffs peaceful possession and enjoyment of the plaint schedule properties respectively. The Suits were clubbed together and a common judgment was rendered by the Prl. Junior Civil Judge, Kovvur, dismissing the Suits. Challenging the same, the un-successful plaintiffs filed appeals before the first appellate court, namely Senior Civil Judge, Kovvur. By impugned judgment dated 30-08-2007 both the appeals were dismissed confirming the decree and common judgment of the trial court. Challenging the same, the present Second Appeals are filed.

4.      In view of the amendment to Section 100 CPC admission of Second Appeal is not routine and the appellants must show the Second Appeal involves a substantial question of law. 
Substantial question of law has not been defined but it has been stated that it substantially affects the rights of the parties. 
When the findings are not based upon admissible evidence or 
when inadmissible evidence has been taken into consideration or when both the courts below gave a perverse finding, 
then it can be said that a substantial question of law is involved.

5.      The Suits are filed for permanent injunction by the plaintiffs in respect of three items in plaint schedule property. The plaintiffs in both the suits based their claim on two un-registered Wills. Both the Wills were disbelieved by the trial court after giving substantial reasons. When both the wills have been disbelieved by the trial court as well as the first appellate court, the incidental title of the party cannot be decided because for grant of permanent injunction three requirements have to be satisfied namely 1) prima facie case 2) balance of convenience must be in favour of the plaintiff and 3) if the injunction is granted, whether any irreparable injury would be caused to the plaintiff.

6.      Insofar as the first requirement is concerned, it must be incidentally proved by both the plaintiffs. In view of the fact that there are some suspicious circumstances existing in respect of the execution of Wills, the trial court as well as the first appellate court rightly dismissed the suit. In all respects, the appellants ought to have filed a suit for declaration in respect of the plaint schedule properties. Instead of doing so, the present second appeals are filed. Even in these Second Appeals also no substantial question of law has been raised. Even with regard to the grant of injunction, the plaintiffs must show that they were in possession of the property by the date of filing of the Suits. Right from the date of filing of the suits, none of the parties filed any document to show that they are in actual possession and enjoyment of the property. Therefore, when the plaintiffs in both the suits failed to establish their physical possession and enjoyment of the property as on the date of filing of the suits the question of granting of injunction does not arise. Hence, there is no substantial question of law involved in these second appeals.

7.      Accordingly, both the second appeals are dismissed at the admission stage.  There shall be no order as to costs. 

8.      Miscellaneous petitions pending, if any, in these Second Appeals shall stand closed.
 ______________________
JUSTICE K.C. BHANU

February 12, 2013
PN

 


                                                    


 

 

 THE HON’BLE SRI JUSTICE K.C. BHANU

 


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 





                                         



 







 

 


SECOND APPEAL NOS.419 OF 2009 AND 93 OF 2013


February 12, 2013


PN

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.