LexKONDIBA DAGADU KADAM versus SAVITRIBAL SOPAN GUJAR AND ORS.
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A KONDIBA DAGADU KADAM v. SAVITRIBAl SOPAN GUJAR AND ORS. APRIL 16, 1999 B [S. SAGHIR AHMAD AND R.P. SETHI, JJ.] Code of Civil Procedure, 1908 : S.100 (as amended by Amending Act, No. 10411976-Second appeal- C No substantial question of/aw involved-Interference by High Court-Validity of-Held, High Court not justified in its interference-High Court must satisfy itself that a substantial question of law exist before hearing an appeal- Concurrent finding of fact howsoever erroneous 'cannot be disturbed by High Court. D S. JOO (as amended by Amending Act. No. 10411976)-Scope and object of S. I OD-Second appeal-Substantial question of /aw-Already decided by· larger Bench or superior courts-Its wrong application ·on facts of a E case-Cannot be termed to be substantial question of law. Appellant filed a suit for specific performance of sale agreement against respondent. The suit was dismissed by trial court. On appeal, the Lower Appellate Court granted relief in favour of appellant relying upon the evidence of two attesting witnesses who have categorically deposed that the respondent F had executed sale agreement by putting his thumb impression. However, High Court by reappreciating the evidence, reversed the fmdings of Appellate Court. High Court found that there was no reference in the plaint regarding witness 'R' and the evidence of another witness 'S' was not reliable. Aggrieved, appellant has filed the present appeal. G Allowing the appeal, and setting aside the order of High Court, this Court HELD: 1.1. High Court was not justified in its interference under S. 100 Civil Procedure Code, 1908 as no substantial question of law was H involved in the second appeal. (732-G-H) 728 / .. KONDIBA DAGADU KADAM v. S.S. GUJAR 729 1.2. After the amendment of S. 100 (amending Act No. 104 of 1976) A of the Code, a second appeal can be filed only ifa substantial question oflaw is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The B appeal is required to be heard on the question so formulated. However, the respondent at the time of hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the Section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such question was C not formulated at the time of admission either by mistake or by inadvertence. . [730-G-H; 731-A-BJ 1.3. A second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under S. 100 of the Code. The D substantial question of law has to be distinguished from a substantial question of fact. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should ~ot ordinarily reject witnesses accepted by the trial court in respect of credibility E but eve!l where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable F or its settled position on the basis of pronouncements made by the apex Court, or was based upon inadmissible evidence or arrived at without evidence. [731-E; 732-A-B-CJ Sir Chunilal v. Mehta and Sons Ltd. v. Century Spinning and G Manufacturing Co. Ltd., AIR (1962) SC 1314 and Reserve Bank of India & Anr. v. Ramakrishna Govind Morey, AIR (1976) SC 830, relied on. 2. lf the question of law termed as 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 H 7
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