GURNAM SINGH (D) BY LRS. & ORS. versus LEHNA SINGH (D) BY LRS. on 13 March 2019

[2019] 4 S.C.R. 1084SUPREME COURT REPORTS

SUPREME COURT REPORTS

[2019] 4 S.C.R.

GURNAM SINGH (D) BY LRS. & ORS.

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LEHNA SINGH (D) BY LRS.

(Civil Appeal No. 6567 of 2014)

BMARCH 13, 2019

[L. NAGESWARA RAO AND M.R. SHAH, JJ.]

Code of Civil Procedure, 1908:

s. 100 – Second appeal – Scope of – Suit for perpetualCinjunction – Trial Court decreed the suit – First Appellate Courtdismissed the suit – High Court in second appeal, afterre-appreciating the evidence decreed the suit – On appeal, held:Jurisdiction of High Court to entertain second appeal u/s. 100 isconfined only to such appeals which involve ‘a substantial questionof law’ – High Court cannot substitute its own opinion for that ofDthe lower court unless it finds that the conclusions drawn by thelower court were erroneous being contrary to the mandatoryprovisions of applicable law, or contrary to the law as pronouncedby the apex court or based on inadmissible evidence or no evidence– The lower court could have decided the case differently is not aEquestion of law – Appreciation of evidence is not permissible insecond appeal – In the present case, High Court while upsettingthe order of first appellate court appreciated the evidence on record– The question framed by High Court cannot be said to be substantialquestion of law – Thus, High Court exceeded its jurisdiction whiledeciding the second appeal – First Appellate Court, on appreciationFof evidence, gave cogent reasons and High Court wronglyinterfered with the same.

Allowing the appeal, the Court

HELD: 1.1 While interfering with and upsetting theGjudgment and order passed by the First Appellate Court, the HighCourt has appreciated the entire evidence on record, which inexercise of powers under Section 100 CPC is not permissible.High Court has not at all appreciated the fact that the High Courtwas deciding the Second Appeal under Section 100 of the CPC

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GURNAM SINGH (D) BY LRS. .& ORS. v. LEHNA SINGH (D)BY LRS.

and not first appeal under Section 96 of the CPC. The jurisdictionof High Court to entertain second appeal under Section 100 CPCafter the 1976 Amendment, is confined only when the secondappeal involves a substantial question of law. The existence of ‘asubstantial question of law’ is a sine qua non for the exercise ofthe jurisdiction under Section 100 of the CPC. In a second appealunder Section 100 of the CPC, the High Court cannot substituteits own opinion for that of the First Appellate Court, unless itfinds that the conclusions drawn by the lower court wereerroneous being: Contrary to the mandatory provisions of theapplicable law; or Contrary to the law as pronounced by the ApexCourt; or Based on in-admissible evidence or no evidence. Iffirst appellate court has exercised its discretion in a judicialmanner, its decision cannot be recorded as suffering from an erroreither of law or of procedure requiring interference in secondappeal. The Trial Court could have decided differently is not aquestion of law justifying interference in second appeal.[Para 13.1] [1094-H; 1095-A-F]

1.2 Cogent reasons, on appreciation of the evidence, weregiven by the First Appellate Court. First Appellate Court dealtwith, in detail, the so-called suspicious circumstance whichweighed with the Trial Court and thereafter it came to theconclusion that the Will, which as such was a registered Will, wasgenuine and do not suffer from any suspicious circumstances.Therefore, while passing the impugned judgment and order, theHigh Court has exceeded in its jurisdiction while deciding thesecond appeal under Section 100 CPC.[Para 15] [1096-D-F]

Issues

1.3 As per Section 100 CPC, the jurisdiction of the HighCourt to entertain the second appeal under Section 100 CPC isconfined only to such appeals which involve a substantial questionof law. The question of law framed by the High Court whiledeciding the second appeal in the present case, cannot be said tobe substantial questions of law at all. Therefore, the impugnedjudgment and order passed by the High Court cannot be sustainedand the same deserves to be quashed and set aside.[Para 15.1][1096-F-G; 1097-B]

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1086SUPREME COURT REPORTS

[2019] 4 S.C.R.

AIshwar Dass Jain v. Sohan Lal (2000) 1 SCC 434 :[2000] 4 Suppl. SCR 722 ;Madamanchi Ramappa v.Muthaluru Bojappa AIR 1963 SC 1633 : [1964] SCR673 – relied on.

2. Despite the catena of decisions of this Court and evenBthe mandate under Section 100 of the CPC, the High Courts underSection 100 CPC are disturbing the concurrent findings of factsand/or even the findings recorded by the first appellate court,either without formulating the substantial question of law or onframing erroneous substantial question of law. Therefore, theHigh Courts are reminded the limitations under Section 100 ofCthe CPC and it is hoped that High Courts would keep in mind thelegal position before interfering in Second Appeal under Section100 of CPC. [Para 18] [1098-D-E]

Panchugopal Barua v. Umesh Chandra Goswami(1997) 4 SCC 713 : [1997] 2 SCR 12 ;KondibaDDagadu Kadam v. Savitribai Sopan Gujar (1999) 3SCC 722 : [1999] 2 SCR 728 ;Narayanan Rajendranv. Lekshmy Sarojini(2009) 5 SCC 264 : [2009] 2SCR 71 – referred to.

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6567

of 2014

From the Judgment and Order dated 27.11.2007 of the High CourtGof Punjab and Haryana at Chandigarh in Civil Regular Second AppealNo. 2191 of 1985

Manoj Swarup, Ms. Mansi Jain, Mukul Kumar, Advs. for theAppellants.

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Amit Sharma, Sandeep Singh, Ms. Jyoti Mendiratta, Advs. forthe Respondents.

The Judgment of the Court was delivered by M.R. SHAH, J. 1.Feeling aggrieved and dissatisfied with theimpugned judgment and order dated 27.11.2007 passed by the High Courtof Punjab and Haryana at Chandigarh in Civil Regular Second AppealNo.2191 of 1985 by which the High Court has allowed the said appealpreferred by the respondent herein-original plaintiff (now dead andrepresented by LRs) and has quashed and set aside the judgment anddecree passed by the First Appellate Court and consequently restoredthe judgment and decree passed by the learned Trial Court, the originaldefendants have preferred the present appeal.

2. The facts leading to present appeal in nutshell are as under:

That the respondent–original plaintiff (hereinafter referred to as‘original plaintiff’) filed a suit in the Court of Sub Judge, First Class,Sangrur for perpetual injunction restraining the original defendants fromdispossessing him from the suit land. It was the case on behalf of theoriginal plaintiff that he and his brother Bhagwan Singh alias Nikka Singhwere owners and in possession of the suit land. Bhagwan Singh aliasNikka Singh expired leaving behind the plaintiff to be his only successor.Bhagwan Singh had no wife or children. The defendants who had noconcern with the suit land were out to dispossess him from the sameforcibly. Hence, therefore, he filed the aforesaid suit against thedefendants for perpetual injunction.

2.1 That the defendants appeared before the Trial Court andresisted the suit by filling the written statement. It was denied by thedefendants that the plaintiff was the successor of Bhagwan Singh,deceased. According to the defendants, Bhagwan Singh, before his death,executed a Will in favour of Defendant Nos.2 to 6 on 17.01.1980.According to the defendants, as all the defendants served BhagwanSingh in his lifetime and therefore he executed the Will in favour ofDefendant nos.2 to 6 because of the services rendered. It was the caseon behalf of the defendants that prior to it also, Bhagwan Singh aliasNikka Singh had got executed a Will on 17.08.1979, but the same remainedas unregistered one. It was admitted that in the lifetime of Bhagwan A

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ASingh, both the plaintiff and the Bhagwan Singh, cultivated the suit landjointly. According to the defendants, after the death of Bhagwan Singh,Defendant Nos.2 to 6 came into possession of half share of BhagwanSingh. In the alternative, the defendants pleaded that even if it was provedthat the original plaintiff was in possession of the suit land, DefendantNos. 2 to 6 were entitled to joint possession of half share of the suit landBwhich belonged to Bhagwan Singh, deceased.

2.2 That the original plaintiff, in the replication filed, denied havingBhagwan Singh -deceased, executed the Will in favour of the DefendantNos.2 to 6 on 17.01.1980.He pleaded that Bhagwan Singh was not in aposition to make any Will. Bhagwan Singh was actually murdered by theCdefendants by administrating poison to him and that the defendants wereprosecuted for the murder of Bhagwan Singh deceased. That thedefendants forged the Will on behalf of the Bhagwan Singh and underthe umbrella of that forged document they were out to dispossess himforcibly. It was also denied that the defendants were in possession of Dthe suit land with regard to the share of Bhagwan Singh.

3. That on the basis of pleadings, the learned Trial Court framedthe following issues :

“1. Whether the plaintiff is the sole heir of Bhagwan Singh,deceased?

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2. Whether the plaintiff is in possession of the property in dispute?

3. Whether the plaintiff is entitled to the relief prayed for?

4. Whether Bhagwan Singh deceased made a valid will as allegedin written statement in favour of defendants Nos.2 to 6?

F5. If issue No.2 is proved in favour of the plaintiff whetherdefendant Nos.2 to 6 are entitled to joint possession of the land insuit?

6 Whether the defendants are governed in matters of marriageby the Punjab Pepsu Customary Law? If so, its effect?G

7. Relief.”

4. That pursuant to the order passed by the High Court, the learnedTrial Court framed the following additional issue:

“4. A. Whether the defendants have committed the murder ofBhagwan Singh? If so, its effect?”

5. Both the parties led evidence on the issues framed. That onappreciation of evidence and on considering the submissions made bythe learned advocates on behalf of the respective parties, the Trial Courtheld Issue Nos.1,4,2,5,6 and 3 in favour of the plaintiff and against thedefendants. The Trial Court held the Issue No.4A in favour of thedefendants and against the plaintiff. Consequently, the learned Trial Courtheld Issue No. 3 in favour of the plaintiff and against the defendants andheld that the plaintiff is entitled to the perpetual injunction as prayed for.Consequently, the learned Trial Court decreed the suit.

6. That in an appeal before the First Appellate Court preferredby the defendants, the First Appellate Court reversed the judgment anddecree passed by the Trial court, by giving cogent reasons which wereon re-appreciation of evidence. The First Appellate Court allowed theappeal preferred by the defendants and consequently dismissed the suitby quashing and set aside the judgment and decree passed by the learnedTrial Court.

7. Feeling aggrieved and dissatisfied with the judgment and decreepassed by the First Appellate Court, the plaintiff preferred Regular SecondAppeal before the High Court. By impugned judgment and order, theHigh Court allowed the same Second Appeal and has quashed and setaside the judgment and decree passed by the learned First AppellateCourt dismissing the suit and consequently has restored the judgmentand decree passed by the Trial Court decreeing the suit.

8. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the original defendants have preferredthe present appeal.

9. Ms. Mansi Jain, learned advocate has appeared on behalf ofthe appellants-original defendants and Mr. Amit Sharma, learned advocatehas appeared on behalf of the respondent– original plaintiff.

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10. Ms. Jain, learned Advocate appearing on behalf of the originaldefendants has vehemently submitted that, in the facts and circumstancesof the case, the High Court has committed a grave error in allowing thesecond appeal and quashing and set aside the well-reasoned judgmentand order passed by the First Appellate Court.

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B10.1 It is vehemently submitted by Ms. Jain, learned Advocateappearing on behalf of the original defendants that the impugned judgmentand order passed by the High Court is beyond the scope and ambit ofSection 100 of the Code of Civil Procedure (CPC). It is vehementlysubmitted by Ms. Jain that while allowing the Second Appeal and quashingand set aside the judgment and decree passed by the First AppellateCCourt, the High Court has re-appreciated the entire evidence on recordas if the High Court was deciding the First Appeal under Section 96 ofthe CPC.

10.2 It is vehemently submitted by Ms. Jain, learned Advocateappearing on behalf of the original defendants that High Court, whileDdeciding the second appeal, has not properly appreciated the fact thatthe High Court was deciding the second appeal under Section 100 of theCPC and therefore was bound by the limitations in exercise of the powersunder Section 100 of the CPC. It is submitted that in the second appealunder Section 100 of the CPC, the High Court was not required toEappreciate/re-appreciate the evidence and the appellate jurisdiction ofthe High Court was restricted to the substantial question of law. It issubmitted that therefore while quashing the impugned judgment and order,the High court has exceeded in its jurisdiction under Section 100 of theCPC and therefore the impugned judgment and order passed by theHigh Court deserves to be quashed and set aside on these grounds alone.FIn support of her above submissions, Ms. Jain, learned Advocate hasrelied upon the decisions of this Court in the case of PanchugopalBaruav. Umesh Chandra Goswami, (1997) 4 SCC 713; KondibaDagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722; IshwarDass Jain v. Sohan Lal, (2000) 1 SCC 434.G

10.3 It is further submitted by Ms. Jain, learned advocate appearingon behalf of the original defendants that even on merits also, the impugnedjudgment and order passed by the High Court is not sustainable. It issubmitted by Ms. Jain that the learned Trial Court while holding and not

accepting the Will executed in favour of the defendant Nos.2 to 6 framedfollowing suspicious circumstances:

“(i) There is no mention about the Plaintiff being disinherited bythe testator in the Will though it was proved on record that thePlaintiff was the real brother of the testator and was serving himand also cultivating his land. The factum of Plaintiff cultivatingthe land stood proved from the revenue record and, therefore,covenant in the Will that the land was being cultivated by theDefendants was factually incorrect.

(ii) In the Will it is mentioned that it was first and last Will, whereasstand of the Defendants was that earlier also there was a Willexecuted by the testator.

(iii) The name of father of Gurnam Singh was also wronglymentioned.

(iv) As observed by the learned Trial Court, in the Will, it has beenstated that the testator had headed and understood the Will andthumb marked the same in the presence of witnesses and thewitnesses also attested it in his presence. This statement is notrequired for proving the Will and, therefore, the learned Trial Courtformed an opinion that such type of convenient in the Will createsa doubt about its authenticity. Thus the learned Trial Court waspleased to hold that the Will was stage-managed by hatching aconspiracy and that is why DW-3 alone took Nikka Singh stealthilyfrom the village in a car and DW-4 Joginder Singh was alreadypresent at Bhawanigarh hobnobbed with the petitioner-writer andgot the transaction sealed.

(v) All the witnesses stated that Nikka Singh was in good healthat that time which is not acceptable as admittedly Nikka Singhwas suffering from cancerous disease and was also a patient ofT.B.

(vi) It was also observed by the learned Trial Court that DW-1 inhis deposition has stated that before the death of Nikka Singh heobtained his thumb impression on 4-5 blank papers.

(vii) The way in which the Will was executed was itself a suspiciouscircumstance taken note of by the trial court to reject the saidWill.”

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A10.4 It is submitted by Ms. Jain, learned Counsel appearing forthe original defendants that all the aforesaid circumstances which werefound to be suspicious circumstances by the learned Trial Court, cameto be dealt with by the First Appellate Court which gave its own reasonson appreciation of evidence. It is submitted that the First Appellate Courtobserved and held as under :B

“1. Just because Lehna Singh, natural heir of Bhagwan Singh,hereinafter referred as Testator, not mentioned in the will, doesnot make it suspicious.

2. Declaring the will to be surrounded by suspicious circumstances,Cmainly based on recitals in the body of the will Ex.D2, is not wellfounded, as such, will is a registered document and has been dulyproved by attesting witnesses, DW3 and DW4.

3. Testator would cancel Schedule will by a registered documentare not recitals in the will which would mean as suspiciousDcircumstances surrounding the will.

4. Father’s name of Gurnam Singh described as Dewa Singh,instead of Mehar Singh, are not such recitals in the will whichwould means as suspicious circumstances surrounding the will.

5. The perusal of the will reveals that the will when it was scribed,Eit was thumb marked at two places, when the will as a whole wasscribed and when it was read over to Testator, in the presence ofattesting witnesses.

6. Just because Testator was suffering from an illness does notmean his testamentary capacity can be questioned.

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7. Nothing has been brought on file by the Respondent to showthat DW3 and DW4 were in any way inimical towards him, thesworn testimony of these witnesses remains unimpeached andunshattered.

DW3 and DW4, who are respectable independent witnesses andGnot inimical toward Respondent.”

10.5 It is submitted by Ms. Jain, learned Advocate appearing forthe original defendants that therefore when the First Appellate Courtrecorded its own findings and reasoning on appreciation of evidence, H

which was permissible as the First Appellate Court being an appeal underSection 96 of the CPC, the same was not required to be set aside by theHigh Court in a second appeal under Section 100 of the CPC. It issubmitted that re-appreciation of the evidence while deciding the secondappeal is wholly impermissible. Making the above submissions, it is prayedto allow the present appeal and quash and set aside the impugnedjudgment and order passed by the High Court and restore the judgmentand decree passed by the learned First Appellate Court and consequentlydismiss the suit.

11. Mr. Amit Sharma, learned advocate appearing on behalf ofthe respondent–original plaintiff while opposing the present appeal hasvehemently submitted that in the facts and circumstances of the caseand on appreciation of evidence and having found that the findingsrecorded by the First Appellate Court are perverse, the High Court hasrightly interfered with the judgment and decree passed by the FirstAppellate Court and has rightly restored the judgment and decree passedby the learned Trial Court.

11.1 It is further submitted by Mr. Amit Sharma, learned Advocatethat cogent reasons were given by the Trial Court holding the Will dated17.01.1980 as suspicious and finding recorded by the learned Trial Courtwere on appreciation of the evidence, as rightly observed by the HighCourt, the First Appellate Court was not justified in interfering with suchfindings which were recorded on appreciation of evidence.

11.2 It is further submitted by Mr. Sharma, learned Advocateappearing on behalf of the original plaintiff that the testator, at the timeof execution of the alleged Will, was not in a position to execute the Willas he was suffering from cancerous disease and was also a patient ofTB.

11.3 It is further submitted by Mr. Sharma, learned Advocateappearing on behalf of the original plaintiff that even the DW1, in hisdeposition, admitted that before the death of Nikka Singh, he obtainedhis thumb impression on 4-5 blank papers. It is submitted that there arenumber of discrepancies in the alleged Will, viz., though in the Will it wasstated that land was being cultivated by the defendants, actually theplaintiff was cultivating the land; that in the Will it was mentioned that itwas the first and last Will, whereas, even according to the defendants, AB

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Aearlier also there was a Will executed by the testator and the name ofthe father of Gurnam Singh was also wrongly mentioned. It is submittedthat therefore, as rightly observed by the learned Trial Court, the Willwas executed in suspicious circumstances and therefore the learnedTrial Court rightly rejected the same Will. It is submitted that despite theabove glaring suspicious circumstances, the First Appellate Court heldBthe Will genuine and therefore the High Court has rightly interfered withthe judgment and decree passed by the First Appellate Court.

11.4 It is further submitted by Mr. Sharma, learned Advocateappearing on behalf of the original plaintiff that the learned Trial Courtwas justified in holding the Will to be surrounded by suspiciousCcircumstances due to ill-health of the testator. It is submitted that thetestator was admittedly suffering from cancerous disease and T.B. andtherefore, the evidence of the attesting witnesses that he was in goodstate of mind, was rightly ignored by the Trial Court.

11.5 Making the above submissions, it is prayedto dismiss theDpresent appeal.

12. Heard the learned advocates appearing on behalf of theoriginal plaintiff and defendants at length. We have considered in detailthe judgment and decree passed by the Trial Court, Judgment and orderpassed by the First Appellate Court and impugned judgment and orderEpassed by the High Court.

13. At the outset, it is required to be noted that the learned TrialCourt held the Will dated 17.01.1980, which was executed in favour oforiginal defendant Nos. 2 to 6,surrounded by suspicious circumstancesand therefore did not believe the said Will.F

13.1. The suspicious circumstances which were considered bythe learned Trial Court are narrated/stated hereinabove. On re-appreciation of evidence on record and after dealing with each allegedsuspicious circumstances, which were dealt with by the learned TrialCourt, the First Appellate Court by giving cogent reasons held the WillGgenuine and consequently did not agree with the findings recorded bythe learned Trial Court. However, in Second Appeal under Section 100of the CPC, the High Court, by impugned judgment and order hasinterfered with the Judgment and Decree passed by the First AppellateCourt. While interfering with the judgment and order passed by the first H

Appellate Court, it appears that while upsetting the judgment and decreepassed by the First Appellate Court, the High Court has again appreciatedthe entire evidence on record, which in exercise of powers under Section100 CPC is not permissible. While passing the impugned judgment andorder, it appears that High Court has not at all appreciated the fact thatthe High Court was deciding the Second Appeal under Section 100 ofthe CPC and not first appeal under Section 96 of the CPC. As per thelaw laid down by this Court in a catena of decisions, the jurisdiction ofHigh Court to entertain second appeal under Section 100 CPC after the1976Amendment, is confined only when the second appeal involves asubstantial question of law. The existence of‘a substantial question oflaw’ is a sine qua non for the exercise of the jurisdiction under Section100 of the CPC. As observed and held by this Court in the case ofKondibaDagadu Kadam (Supra), in a second appeal under Section 100of the CPC, the High Court cannot substitute its own opinion for that ofthe First Appellate Court, unless it finds that the conclusions drawn bythe lower Court were erroneous being:

(i) Contrary to the mandatory provisions of the applicable law; OR

(ii) Contrary to the law as pronounced by the Apex Court; OR

(iii) Based on in-admissible evidence or no evidence.

It is further observed by this Court in the aforesaid decision that ifFirst Appellate Court has exercised its discretion in a judicial manner, itsdecision cannot be recorded as suffering from an error either of law orof procedure requiring interference in second appeal. It is furtherobserved that the Trial Court could have decided differently is not aquestion of law justifying interference in second appeal.

14. When a substantial question of law can be said to have arisen,has been dealt with and considered by this Court in the case of IshwarDass Jain (Supra). In the aforesaid decision, this Court has specificallyobserved and held :

“Under Section 100 CPC, after the 1976 amendment, it is essentialfor the High Court to formulate a substantial question of law and A

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Ait is not permissible to reverse the judgment of the first appellatecourt without doing so. There are two situations in whichinterference with findings of fact is permissible. The first one iswhen material or relevant evidence is not considered which, ifconsidered, would have led to an opposite conclusion. The secondsituation in which interference with findings of fact is permissibleBis where a finding has been arrived at by the appellate court byplacing reliance on inadmissible evidence which if it was omitted,an opposite conclusion was possible. In either of the abovesituations, a substantial question of law can arise.”

15. Applying the law laid down by this Court in the aforesaidCdecisions to the facts of the case on hand, we are of the opinion that theHigh Court has erred in re-appreciating the evidence on record in thesecond appeal under Section 100 of the CPC. The High Court hasmaterially erred in interfering with the findings recorded by the FirstAppellate Court, which were on re-appreciation of evidence, which was Dpermissible by the First Appellate Court in exercise of powers underSection 96 of the CPC. Cogent reasons, on appreciation of the evidence,were given by the First Appellate Court. First Appellate Court dealtwith, in detail, the so-called suspicious circumstance which weighed withthe learned Trial Court and thereafter it came to the conclusion that the Will, which as such was a registered Will, was genuine and do not sufferEfrom any suspicious circumstances. The findings recorded by the FirstAppellate Court are reproduced hereinabove. Therefore, while passingthe impugned judgment and order, the High Court has exceeded in itsjurisdiction while deciding the second appeal under Section 100 CPC.

15.1 As observed hereinabove and as held by this Court in aFcatena of decisions and even as per Section 100 CPC, the jurisdiction ofthe High Court to entertain the second appeal under Section 100 CPC isconfined only to such appeals which involve a substantial question oflaw. On going through the substantial questions of law framed by theHigh Court, we are of the opinion that the question of law framed by theGHigh Court while deciding the second appeal, cannot be said to besubstantial questions of law at all. The substantial questions of law framedby the High Court are as under :

“(i) Whether the Appellate Court can reverse the findings recordedby the learned trial court without adverting to the specific findingof the trial Court?H

(ii) Whether the judgment passed by the learned lower AppellateCourt is perverse and outcome of misreading of evidence?”

The aforesaid cannot be said to be substantial questions of law atall. In the circumstances, the impugned judgment and order passed bythe High Court cannot be sustained and the same deserves to be quashedand set aside. At this stage, decision of this Court in the case ofMadamanchi Ramappav. Muthaluru Bojappa, AIR 1963 SC 1633, isrequired to be referred to.

In the aforesaid decision, this Court has observed and held asunder:

“Whenever this Court is satisfied that in dealing with a secondappeal, the High Court has, either unwittingly and in a casualmanner, or deliberately as in this case, contravened the limitsprescribed by S.100, it becomes the duty of this Court to interveneand give effect to the said provisions. It may be that in somecases, the High Court dealing with the second appeal is inclinedto take the view that what it regards to be justice or equity of thecase has not been served by the findings of fact recorded byCourts of fact; but on such occasions it is necessary to rememberthat what is administered in Courts is justice according to law andconsiderations of fair play and equity however important they maybe, must yield to clear and express provisions of the law. If inreaching its decisions in second appeals, the High Courtcontravenes the express provisions of S.100, it would inevitablyintroduce in such decisions an element of disconcertingunpredictability which is usually associated with gambling; andthat is a reproach which judicial process must constantly andscrupulously endeavour to avoid.”

16. Therefore, we are of the opinion that this is a fit case to interferewith the impugned judgment and order passed by the High Court, as, asobserved hereinabove, the High Court has exceeded in its jurisdiction,while allowing the second appeal under Section 100 of the CPC.

17. In view of the above and for the reasons stated above, weallow this appeal, set aside the impugned Judgment and Order passed bythe High Court dated 27.11.2007 passed in Civil Regular Second AppealNo.2191 of 1985 and restore the Judgment and Order passed by thelearned District Judge, Sangrur dated 06.06.1985 passed in Civil Appeal

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ANo.27 of 29.02.1983 and consequently dismiss the suit preferred by therespondent herein–original plaintiff. No costs.

18. Before parting with the present judgment, we remind the HighCourts that the jurisdiction of the High Court, in an appeal under Section100 of the CPC, is strictly confined to the case involving substantialBquestion of law and while deciding the second appeal under Section 100of the CPC, it is not permissible for the High Court to re-appreciate theevidence on record and interfere with the findings recorded by the Courtsbelow and/or the First Appellate Court and if the First Appellate Courthas exercised its discretion in a judicial manner, its decision cannot berecorded as suffering from an error either of law or of procedure requiringCinterference in Second Appeal. We have noticed and even as repeatedlyobserved by this Court and even in the case of Narayanan Rajendranv. Lekshmy Sarojini, (2009) 5 SCC 264,despite the catena of decisionsof this Court and even the mandate under Section 100 of the CPC, theHigh Courts under Section 100 CPC are disturbing the concurrent findingsDof facts and/or even the findings recorded by the First Appellate Court,either without formulating the substantial question of law or on framingerroneous substantial question of law.

Therefore, we are constrained to observe as above and remindthe High Courts the limitations under Section 100 of the CPC and againEhope that High Courts would keep in mind the legal position beforeinterfering in Second Appeal under Section 100 of the Code of CivilProcedure.

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Appeal allowed.

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