PONNAMMA JOHN Vs. VIJAYKUMAR TANWAR

JUDGEMENT

(1.) INITIALLY the petitioner had filed this Misc. Civil Case under Order XLV Rule 2 of the Code of Civil Procedure (for short 'CPC') read with Article 133 (1) (a) & (b) and Article 134-A of the Constitution of India and under Rules 1 and 2 of Chapter XXI of the High Court of Madhya Pradesh Rules, 2008 seeking a certificate under Article 133 (1) (a) and (b) of the Constitution in accordance with Form No. 31. However, on a preliminary objection being raised by the respondents, the petitioner prayed for amendment of the prayer made in the MCC and the said prayer to amend was allowed. Thereafter as amended the present MCC is treated and heard as a petition under Order XLV Rule 2 of the CPC read with Rules 1 and 2 of Chapter XXI of the High Court of Madhya Pradesh Rules, 2008 with a prayer to grant a certificate in terms of Rule 3 and Rule 7 of Order XLV of the CPC on the substantial questions of law stated in the memo of petition.

(2.) ACCORDING to the petitioner following two substantial questions of law of general importance need to be decided by Hon'ble the Supreme Court:-

(3.) SMT.Meena Chaphekar, learned Counsel appearing on behalf of the respondents on the other hand submitted reply of the MCC and raised preliminary objections by placing reliance on Section 109 of the CPC. She argued that in view of the provisions contained in Section 109 of the CPC and Article 133 (3) of the Constitution of India present petition filed by the petitioner is not maintainable. According to her, the order in question has been passed by Single Judge of this Court and, therefore, in view of bar contained in Article 133 (3) of the Constitution this MCC is not maintainable. According to her the substantial questions of law which were framed in the second appeal have rightly been decided vide judgment dated 11-5-2009 passed by this Court. She argued that in the said judgment it has been correctly held that Section 3(1) (b) of the Repeal Act saves the validity of any order granting exemption under sub-section (1) of Section 20 or any action taken thereunder notwithstanding any judgment of any Court to the contrary. She submits that it was also correctly held by this Court that the repeal of the Ceiling Act will not revive the plaintiff's right to get the sale-deed executed on the ground that the ban imposed in the sanction is not available now in view of the Repeal Act. She also submits that the second question as extracted in Paragraph 2 above is purely a question of fact. She argued that this Court after appreciating the evidence led by the parties has rightly held that the plaintiff's suit was barred by limitation. This question is also according to her is not of any general importance which needs decision by the Supreme Court. She argued that against the concurrent finding of fact recorded by two Courts below and upheld by this Court, if the petitioner had any grievance it was open for her to have approached the Supreme Court by filing a Special Leave Petition.