RAMDAS WAYDHAN GADLINGE (SINCE DECEASED) THR LRS. VATSALABAI RAMDAS GADLINGE & ORS. versus GYANCHAND NANURAM KRIPLANI (DEAD) THR LRS. DHRUPADABAI & ORS. on 28 July 2021

ORDER

1. Leave granted.

2. The legal representatives of defendant in a suit for recovery ofpossession and damages have preferred this appeal against the judgmentand order dated 08.03.2016, as passed by the High Court of Judicatureat Bombay, Bench at Nagpur in Second Appeal No. 275 of 2001.

2. The predecessor of the present respondents filed the suit forpossession and damages (CS No. 189 of 1995) in the Court of CivilJudge (Senior Division), Akola against the predecessor of the presentappellants, essentially with the claim that he (the plaintiff) had purchasedthe suit property from the defendant under a registered sale deed dated01.10.1992 for a consideration of Rs. 27,500/- and the defendant hadput the plaintiff in possession of the suit property. The plaintiff assertedthat later on, the defendant put his lock over the property and thereafterinducted tenants therein; whereupon he filed a police complaint and thenfiled the present suit on 03.08.1995, seeking recovery of possession asalso damages.

3. The defendant, while resisting the claim so made by the plaintiff,contended that he had never sold the property to the plaintiff; rather hehad taken a loan of Rs. 27,500/- for which, a nominal sale deed was A

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Aexecuted. The defendant also submitted that he had repaid an amount ofRs. 19,750/- by way of cash and cheque to the plaintiff and had alsogiven his refrigerator worth Rs. 7,500/-.

4. After taking evidence and examining the material placed onrecord, the Trial Court found that the plaintiff had failed to establish theBfactum of his having been put in possession and that the municipal taxes,electricity bills etc. were also paid by the defendant, leading to theinference that the sale deed was not an outright sale but was executedonly as security. The Trial Court also observed that the property wasencumbered against the loan taken by the defendant from a society andsame could not have been sold before being released from suchCencumbrance.

5. The Trial Court also noticed that no payment of considerationwas made at the time of registration of the sale deed and no other evidencewas adduced by the plaintiff as to how did he make payment of thealleged sale consideration. Though the evidence in regard to the fact ofDdefendant having repaid a sum of Rs. 20,000/- to the plaintiff throughcheques was found to be unconvincing but, in view of other findings, theTrial Court proceeded to dismiss the suit.

6. The First Appellate Court, however, did not agree with thefindings and conclusion of the Trial Court on the material issues involvedEin the matter. The First Appellate Court disbelieved the story of makingrepayment by the defendant by way of cheques, particularly after noticingthat though the defendant stated that the cheques Exhibits 44 to 47 werereturned by the plaintiff whenever the payment was made but, therewas no such endorsement on the said cheques. The Appellate CourtFobserved that the defendant probably applied a trick by embodying thename of the plaintiff on all those cheques. The First Appellate Court alsoreferred to the fact that admittedly, the sale deed was executed and gotregistered before the Sub-Registrar and found that the defendant hadfailed to establish it to be a loan transaction. Accordingly, the FirstAppellate Court allowed the appeal and decreed the suit.G

7. Being aggrieved by the decree so passed by the First AppellateCourt, the defendant approached the High Court in second appeal. Thesecond appeal so preferred by the defendant (substituted by his legalrepresentatives) was admitted by the High Court on the followingsubstantial questions of law: -H

“(1) Is the judgment of appellate court erroneous being based onerroneous formulation of points for determination since the questionrelating to nature of transaction was not framed?

(2) Is the judgment of appellate court sustainable in the backgroundthat findings of fact as recorded by trial court are set aside withoutholding that those are illegal erroneous and unsustainable?

(3) Are findings recorded by first appellate Court liable to beregarded as perverse?”

8. In the impugned judgment and order dated 08.03.2016, thelearned Single Judge of the High Court, after reproducing the aforesaidquestions, has observed that though specific point regarding the natureof transaction was not formulated by the First Appellate Court but theother point formulated by it covered the said issue; and the First AppellateCourt had considered the arguments of both sides and did consider theplea regarding money lending and issuance of cheque etc. and thenreturned the finding that the sale deed was not executed by way ofsecurity for a loan. The learned Single Judge was of the opinion thatthere was no reason to differ with the First Appellate Court on this point.As regards question No. 2, the learned Single Judge again made areference to the conclusion of the First Appellate Court and found thatthe alleged possession of defendant or his agents was of no consequenceor relevance when the plaintiff’s possession was legal and he was havinga valid title by way of sale deed. The learned Single Judge further observedthat the findings of fact recorded by the First Appellate Court were inaccordance with the facts and evidence and question No. 3 could not beanswered in affirmative. With these observations, the learned Judgeproceeded to dismiss the second appeal.

9. Several grounds have been urged on behalf of the appellantsseeking to question the impugned judgment and order dated 08.03.2016of the High Court. One of the fundamental submissions is that the HighCourt, after having admitted the second appeal and having formulatedsubstantial questions of law, was not justified in deciding the same in asummary manner by merely observing that the findings of the FirstAppellate Court called for no interference. It is submitted that the TrialCourt had dismissed the suit on relevant considerations and on cogentfindings; and such a decision could not have been reversed by the FirstAppellate Court without dealing with the reasoning and findings of theTrial Court. It is also submitted that the substantial pieces of evidence, A

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Aestablishing that the transaction in question was merely a loan transaction,required due consideration and the High Court has erred in not examiningthe relevant questions arising in the matter.

10. Per contra, it is submitted on behalf of the respondents thatthe First Appellate Court has meticulously examined the matter inBsufficient detail and the findings of fact recorded by the First AppellateCourt were not calling for any interference and hence, the High Courtwas justified in dismissing the second appeal even if admitted on a fewquestions, which all essentially related to the matters of fact.

11. Having heard learned counsel for the parties and havingCexamined the record, we are clearly of the view that the High Court,after having admitted the second appeal and having formulated substantialquestions of law, could not have disposed of the same by only stating itssatisfaction on the findings of the First Appellate Court without examiningthe relevant points arising from the submissions of the parties and withoutexamining as to whether the First Appellate Court was justified in reversingDthe findings of the Trial Court.

12. As the matter is proposed to be remanded for reconsideration,we shall not be recording any finding on merits and would leave theentire matter for consideration by the High Court in accordance withlaw but, we may indicate by way of illustration a fact that the defendant,Ein order to show that he had a loan transaction with the plaintiff, apartfrom producing various other cheques which were allegedly returned tohim, indeed adduced the evidence in the form of DW-4, an employee ofAkola Urban Co-operative Bank, to establish that a cheque dated07.12.1992 for a sum of Rs. 600/- was issued by the defendant in favourFof plaintiff and it was encashed. The relevant statement of account wasalso produced by this employee of the bank. We are not commenting onthe ultimate value and worth of this piece of evidence as the same has tobe examined with reference to the other evidence on record and anoverall view is required to be taken. However, it remains a fact that inparagraph 13 of the written statement, the defendant took the specificGplea of having made payment towards interest to the plaintiff and gaveout the details of various cheques commencing from 13.07.1992 and itincluded the aforesaid cheque dated 07.12.1992 for a sum of Rs. 600/-.These aspects, coupled with the other findings of the Trial Court vis-à-vis the findings of the First Appellate Court do deserve appropriateHconsideration on the questions formulated by the High Court. Those questions could not have been decided with mere observations ofendorsement of the findings of the First Appellate Court. With respect,the impugned judgment and order dated 08.03.2016 is akin to that of asummary disposal of the second appeal and that cannot be approved,because the second appeal had been admitted on specific questions.

13. It needs hardly any emphasis that under Section 100 of theCode of Civil Procedure, 1908 (‘CPC’), admission of a second appealwhile formulating substantial questions of law for consideration is a matterentirely different because at that threshold stage, the High Court wouldbe examining as to whether the case involves any substantial question oflaw or not. However, once a second appeal is admitted, on the HighCourt being satisfied that a substantial question of law is involved in thecase and with formulation of that question, the appeal is required to beheard in terms of Order XLII CPC.

14. A look at Order XLII CPC makes it clear that except for thelimitations envisaged by Rule 2 thereof read with Section 100, the rulesof Order XLI do apply, so far as may be, for the purpose of hearing ofthe second appeal, i.e., an appeal from appellate decree.

Section 100 CPC reads as under: -

“100. Second appeal.—(1) Save as otherwise expresslyprovided in the body of this Code or by any other law for the timebeing in force, an appeal shall lie to the High Court from everydecree passed in appeal by any Court subordinate to the HighCourt, if the High Court is satisfied that the case involves asubstantial question of law.

(2) An appeal may lie under this section from an appellatedecree passed ex parte.

(3) In an appeal under this section, the memorandum ofappeal shall precisely state the substantial question of law involvedin the appeal.

(4) Where the High Court is satisfied that a substantialquestion of law is involved in any case, it shall formulate thatquestion.

(5) The appeal shall be heard on the question so formulatedand the respondent shall, at the hearing of the appeal, be allowedto argue that the case does not involve such question:

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Provided that nothing in this sub-section shall be deemed totake away or abridge the power of the Court to hear, for reasonsto be recorded, the appeal on any other substantial question oflaw, not formulated by it, if it is satisfied that the case involvessuch question.”

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BRules 1 and 2 of XLII CPC read as under: - “1. Procedure.—The rules of Order XLI shall apply, so faras may be, to appeals from appellate decrees.

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2. Power of Court to direct that the appeal be heard on thequestion formulated by it.—At the time of making an order underCRule 11 of Order XLI for the hearing of a second appeal, theCourt shall formulate the substantial question of law as requiredby Section 100, and in doing so, the Court may direct that thesecond appeal be heard on the question so formulated and it shallnot be open to the appellant to urge any other ground in the appealwithout the leave of the Court, given in accordance with theDprovision of Section 100.”

15. Obviously, a second appeal, after its admission with formulationof substantial question of law, cannot be disposed of summarily. TheCourt has further power to hear the appeal on any other substantialquestion of law if not formulated earlier for reasons to be recorded. OfEcourse, at the time of hearing, the respondent is entitled to argue that thecase does not involve the question or questions so formulated but,interestingly, in the present case, we do not find any indication in theimpugned judgment and order of the High Court if the respondent evenargued that the case did not involve the formulated questions or any ofFthem. It has also not been the conclusion by the High Court that thequestions so formulated were not involved in the case. That being theposition, in our view, it was required of the High Court to examine thematter in necessary details and then, to determine the substantial questionsof law formulated in the case. In this view of the matter, we have nooption but to set aside the impugned judgment and order dated 08.03.2016Gand to remand the matter for reconsideration by the High Court on thequestions of law already formulated by it.

16. We would hasten to reiterate that we are not commenting onthe merits of the case either way and all the aspects are left open fordetermination by the High Court with reference to the relevant contentionsHof the parties.

RAMDAS WAYDHAN GADLINGE (SINCE DECEASED) THR LRS.VATSALABAI RAMDAS GADLINGE v. GYANCHAND NANURAMKRIPLANI (DEAD) THR LRS. DHRUPADABAI

17. Accordingly, this appeal is allowed; the impugned judgmentand order dated 08.03.2016 is set aside; and Second Appeal No. 275 of2001 is restored for reconsideration by the High Court on the substantialquestions of law already formulated by it. The civil suit in question havingbeen filed way back in the year 1995, we would request the High Courtto assign a reasonable priority to the matter and take a final decision inthe appeal expeditiously.

Devika Gujral

Appeal allowed.

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