KISHAN CHAND SAINI Vs. KRISHAN SINGH SAINI

JUDGEMENT

(1.) This second appeal was filed in the year 2002 by the appellant to set aside the judgment and decree dated 28th January, 1987 passed by Sub-Judge, First Class, Delhi and to set aside the judgment dated 31st January, 2002 passed by first appellate court upholding the order of Sub-Judge in R.C.A. No.17 of 2001. No questions of law were framed by the appellant in the memorandum of appeal. Only grounds of appeal were mentioned in general. The following grounds could be culled out by this court on the basis of which the order of first appellant court was assailed :-

(2.) This court in Modipon Limited Vs. Aruna Kohli & Anr.; R.S.A. No.12 of 2010 decided on 21st April, 2001 observed as under :- "10. The first appeal is a matter of right of a litigant and in the first appeal, the court is supposed to re-appreciate the entire evidence in the light of the arguments of the appellant and the First Appellate Court can substitute its own findings of facts and findings of law, on being convinced that the order of the Trial Court was not in accordance with law or the findings of facts were not based on the evidence. However, the Second Appeal cannot be entertained in a casual manner. The policy of legislature is that there should be rest to the litigation and Second Appeal should not be entertained unless a substantial question of law is raised by the appellant and framed by the Court. In State Bank of India & Ors vs. S.N. Goyal (2008) 8 SCC 92, the Hon'ble Supreme Court laid down as to what was the substantial question of law in the following words:

(3.) There is no gain saying that if the appreciation of evidence is considered erroneous by the appellant that cannot be a ground for entertaining a second appeal (Thimmaiah vs. Ningamma; (2000) 7 SCC 409). Merely because on appreciation of evidence another view was equally possible, would not clothe the High Court to assume jurisdiction by terming the question of fact as a question of law [Paras Nath Thakur vs. Smt. Mohani Dasi (deceased); AIR 1959 SC 1204 and Veerayee Ammal vs. Seeni Ammal; AIR 2001 SC 2920]. It has been the consistent view that High Court has no jurisdiction to entertain second appeal on the ground of erroneous finding of fact based on appreciation of relevant evidence although where the findings of fact are vitiated by total non- consideration of the evidence available on record or by an illegal approach on the matter, the High Court may entertain a second appeal. However, this has to be very rare and in exceptional cases. The general rule is that the second appeal cannot be entertained on the issues of facts and the High Court cannot disturb findings of fact given by the courts below nor an appeal can be admitted unless a case was made out under Section 100 of CPC and a question of law was clearly spelled in the memorandum of appeal and at the time of admission, the High Court considered such question of law, as raised by the appellant, as a substantial question of law and framed the same for consideration at the time of admission of the appeal. The rationale behind this is that the appreciation and re- appreciation of evidence must come to an end with the first appellate court and only important legal issues could be taken up by the second appellate court. Before amendment of CPC, that is, prior to the year 1976, the cases decided by Privy Council and by the Supreme Court clearly restricted the scope of interference under Section 100 of CPC. The consistent position has been that the court should not interfere with the concurrent findings of fact. After the year 1976, scope of Section 100 CPC got further curtailed and narrowed down and the second appellate court could have jurisdiction to interfere under Section 100 of CPC only where substantial question of law was involved and such substantial questions of law was clearly formulated in the memorandum of appeal by the appellant and at the time of admission of second appeal by the High Court itself. It is bounden duty and obligation of the High Court to formulate substantial question of law and then only to proceed further with the second appeal.