LN SM RAMASAMY CHETTIAR Vs. ADAIKKAMMAI ALIAS PARIPOORNAM

JUDGEMENT

(1.) The point of law raised for admission in this second appeal and which alone can be raised as the findings of fact based upon acceptable an relevant evidence are concurrent & binding upon me is that a benamidar notwithstanding the non-intervention and non-opposition of the real owner cannot maintain a suit for partition and that this objection can be raised by the other parceners or co-owners.

(2.) The fact that merely because the appellant has shown that an arguable or prima facie point of law arises in appeal is not a ground for admission, has been expounded by the Law Commission in its 14th Report of the Reform of the Judicial Administration Vol. 1 Chapter 16 page 390. The Court has further to be satisfied that the decision of the lower appellate Court on a point of law is erroneous and that it is necessary in order to do justice between the appellant and the respondent that a further hearing should be given to both the parties. In fact the Law Commission has gone to the extent of suggesting that a statutory requirement should be made providing that the judge admitting the appeal should state the point or points of law which arise for consideration in the second appeal and that the High Court should in its discretion even be permitted to go further and order that the appellant should be heard only on the point or points of law stated by the judge admitting the appeal. It is to be hoped that this contingency may not arise by ourselves subjecting to "stricter and better scrutiny" the second appeals at the stage of admission because if such a statutory requirement is made, only a negligible percentage of second appeals will get admitted and a valuable corrective in reserve conferred under S. 100 of the Civil Procedure Code will be greatly lost to the detriment of the litigant public and efficient administration of Civil Justice.

(3.) The point of law taken by the learned advocate Mr. N. C. Raghavachari and in regard to which I have the advantage of Sri K. Parasaran assisting me as amicus curiae is neither an arguable point of law nor a prima facie good point of law since the law on the subject has become well settled though the case law is sparse on the subject and the principles relating hereto have not been comprehensively expounded.