IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 472 of 2017
Decided on: 05.12.2017

Sh. Ram Krishan …Appellant

.
Versus

Smt. Bhupeshwari Devi Ors. …Respondents

Coram

The Hon’ble Mr.Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No.

For the Appellant: Mr. Parveen Chandel, Advocate.

For the respondents:

to Mr. B.S. Attri, Advocate.

Justice Tarlok Singh Chauhan, Judge (Oral)

This regular second appeal is directed against the

judgment and decree dated 27.12.2016 passed by the learned District

Judge, Shimla, in Civil Appeal No. 46-S/13 of 2014, whereby he affirmed

the judgment and decree dated 01.09.2007, passed by the learned

Civil Judge (Junior Division), Court No. 3, Shimla in Civil Suit No. 42/1 of

2002, whereby the suit of the plaintiff/appellant came to be partly

allowed.

2. The parties to the lis are hereinafter referred in the same

manner, in which, they were referred to by the learned courts below.

3. Plaintiff filed a suit for declaration and permanent

prohibitory injunction alleging therein that he was married to one Smt.

Asha Devi @ Vidya as per Hindu rites and religion and out of their

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wedlock seven children were born. It was further averred that

defendant No. 1 had started claiming herself to be the legally wedded

wife of the plaintiff, which was wrong as the defendant No. 1 was well

.

aware of the fact that plaintiff was already married with Smt. Asha Devi

@ Vidya a long ago.

4. Defendants filed written statement raising preliminary

objections regarding maintainability, cause of action and limitation etc.

On merits, it was averred that in view of the judgment passed by the

learned Chief Judicial Magistrate, Shimla in case titled as Bhupeshwari

Devi vs. Ram Krishan in Criminal case No. 15/4 of 1999, wherein,

defendant No. 1 was held to be legally wedded wife of the plaintiff

and defendants No. 2 and 3 as their children.

5. It was further averred that the marriage between the

plaintiff and defendant No. 1 has been solemnized in the year, 1995

and this was so recorded and entered in the records of the Gram

Panchayat, Junga. The entries were got entered by the plaintiff himself.

Not only this, the plaintiff as well as defendant No. 1 had appended

their signatures in the Marriage Register kept in Gram Panchayat,

Junga.

6. The suit was further contested that plaintiff himself has got

issued a registered legal notice to defendant No. 1 through Shri Rajiv

Mehta, Advocate, wherein, he specifically averred that defendant No.

1 was his legally wedded wife.

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7. From the pleadings of the parties, the following issues

came to be framed by the learned trial Court vide order dated

8.10.2003:

.

1. Whether the defendant No. 1 has not legally wedded wife of

the plaintiff and defendant No. 2 and 3 are not his children
and entitled for declaration? OPP

2. Whether Smt. Asha Devi @ Vidya is legally wedded wife of
the plaintiff? OPP

3. Whether the plaintiff is entitled for the relief of injunction to
restrain the defendants from claiming any maintenance, etc.

from him? OPP

4. Whether the suit is not maintainable in the present form? OPD

5. Whether the plaintiff is stopped to file the present suit by his

own acts, conduct, acqui9scence, admissions, lapses and

latches, etc.? OPD

6. Whether the plaintiff has no cause of action to file the
present suit against the defendants? OPD

7. Whether the suit is time barred? OPD

8. Whether the suit is not properly valued for the purpose of
court fee and jurisdiction? OPD

9. Relief.

8. After recording evidence and evaluating the same, the suit

filed by the plaintiff was partly decreed in favour of the plaintiff and

against the defendants, declaring the defendant No. 1 not to be the

wife of the plaintiff and she was permanently restrained from claiming

herself to be legally wedded wife of the plaintiff.

9. Plaintiff aggrieved by the findings of the learned trial Court,

whereby, the defendants No. 2 and 3 were held to be the legitimate

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children of the plaintiff, filed an appeal before the first Appellate Court,

which came to be dismissed, constraining the plaintiff to file the instant

appeal on the grounds that the findings recorded by the courts below

.

are perverse and, therefore, deserves to be set aside.

I have heard learned counsel for the parties and have

gone through the records of the case.

10. What is ‘perverse’ was considered by the Hon’ble Supreme

Court in a detailed judgment in Arulvelu and another vs. State

Represented by the Public Prosecutor and another (2009) 10 SCC 206

wherein it was held as under:-

“26. In M. S. Narayanagouda v. Girijamma Another AIR 1977 Kar. 58,
the Court observed that any order made in conscious violation of
pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR

1r 331 the Court observed that a perverse verdict may probably be
defined as one that is not only against the weight of evidence but is
altogether against the evidence. In Godfrey v. Godfrey 106 NW 814,

the Court defined `perverse’ as turned the wrong way, not right;
distorted from the right; turned away or deviating from what is right,

proper, correct etc.

27. The expression “perverse” has been defined by various dictionaries

in the following manner:

1. Oxford Advanced Learner’s Dictionary of Current English Sixth
Edition

PERVERSE:- Showing deliberate determination to behave in a
way that most people think is wrong, unacceptable or
unreasonable.

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2. Longman Dictionary of Contemporary English – International
Edition

PERVERSE: Deliberately departing from what is normal and
reasonable.

.

3. The New Oxford Dictionary of English – 1998 Edition

PERVERSE: Law (of a verdict) against the weight of evidence or

the direction of the judge on a point of law.

4. New Webster’s Dictionary of the English Language (Deluxe
Encyclopedic Edition)

PERVERSE: Purposely deviating from accepted or expected
behavior or opinion; wicked or wayward; stubborn; cross or
petulant.

5. Stroud’s Judicial Dictionary of Words Phrases, Fourth Edition

PERVERSE: A perverse verdict may probably be defined as one
that is not only against the weight of evidence but is altogether

against the evidence.

28. In Shailendra Pratap Another v. State of U.P. (2003) 1 SCC 761, the

Court observed thus: (SCC p.766, para 8

“8…We are of the opinion that the trial court was quite justified
in acquitting the appellants of the charges as the view taken
by it was reasonable one and the order of acquittal cannot be

said to be perverse. It is well settled that appellate court would
not be justified in interfering with the order of acquittal unless
the same is found to be perverse. In the present case, the High
Court has committed an error in interfering with the order of
acquittal of the appellants recorded by the trial court as the
same did not suffer from the vice of perversity.”

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29. In Kuldeep Singh v. The Commissioner of Police Others (1999) 2
SCC 10, the Court while dealing with the scope of Articles 32 and 226
of the Constitution observed as under: (SCC p.14, paras 9-10)

“9. Normally the High Court and this Court would not interfere

.

with the findings of fact recorded at the domestic enquiry but if

the finding of “guilt” is based on no evidence, it would be a
perverse finding and would be amenable to judicial scrutiny.

10. A broad distinction has, therefore, to be maintained
between the decisions which are perverse and those which are
not. If a decision is arrived at on no evidence or evidence

which is thoroughly unreliable and no reasonable person would
act upon it, the order would be perverse. But if there is some
evidence on record which is acceptable and which could be
relied upon, howsoever compendious it may be, the
r conclusions would not be treated as perverse and the findings

would not be interfered with.”

30. The meaning of `perverse’ has been examined in H. B. Gandhi,
Excise and Taxation Officer-cum- Assessing Authority, Karnal Others v.

Gopi Nath Sons Others 1992 Supp (2) SCC 312, this Court observed
as under: (SCC pp. 316-17, para 7)

“7. In the present case, the stage at and the points on which
the challenge to the assessment in judicial review was raised

and entertained was not appropriate. In our opinion, the High
Court was in error in constituting itself into a court of appeal
against the assessment. While it was open to the respondent to
have raised and for the High Court to have considered whether

the denial of relief under the proviso to Section 39(5) was
proper or not, it was not open to the High Court re-appreciate
the primary or perceptive facts which were otherwise within the
domain of the fact-finding authority under the statute. The
question whether the transactions were or were not sales
exigible to sales tax constituted an exercise in recording
secondary or inferential facts based on primary facts found by
the statutory authorities. But what was assailed in review was, in
substance, the correctness – as distinguished from the legal
permissibility – of the primary or perceptive facts themselves. It
is, no doubt, true that if a finding of fact is arrived at by ignoring
or excluding relevant material or by taking into consideration
irrelevant material or if the finding so outrageously defies logic

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as to suffer from the vice of irrationality incurring the blame of
being perverse, then, the finding is rendered infirm in law.”

11. What is ‘perverse’ has further been considered by this

Court in RSA No.436 of 2000, titled ‘Rubi Sood and another vs. Major

.

(Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the

following manner:-

“25….. A finding of fact recorded by the learned Courts below can
only be said to be perverse, which has been arrived at without
consideration of material evidence or such finding is based on no
evidence or misreading of evidence or is grossly erroneous that, if

allowed to stand, it would result in miscarriage of justice, is open to
correction, because it is not treated as a finding according to law.

26. If a finding of fact is arrived at by ignoring or excluding relevant
material or by taking into consideration irrelevant material or even the

finding so outrageously defies logic as to suffer from the vice of
irrationality incurring the blame of being perverse, then the finding is
rendered infirm in the eye of the law.

27. If the findings of the Court are based on no evidence or evidence,
which is thoroughly unreliable or evidence that suffers from vice of

procedural irregularity or the findings are such that no reasonable
persons would have arrived at those findings, then the findings may be

said to be perverse.

28. Further if the findings are either ipse dixit of the Court or based on

conjectures and surmises, the judgment suffers from the additional
infirmity of non application of mind and thus, stands vitiated.”

12. What is ‘perversity’ recently came up for consideration

before the Hon’ble Supreme Court in Damodar Lal vs.Sohan Devi and

others (2016) 3 SCC 78 wherein it was held as under:-

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“8. “Perversity” has been the subject matter of umpteen number of
decisions of this Court. It has also been settled by several decisions of
this Court that the first appellate court, under Section 96 of The Civil
Procedure Code, 1908, is the last court of facts unless the findings are
based on evidence or are perverse.

.

9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at
paragraph-11 that: (SCC pp. 192-93)

“11. It may be mentioned that the first appellate court under
Section 96 CPC is the last court of facts. The High Court in
second appeal under Section 100 CPC cannot interfere with
the findings of fact recorded by the first appellate court under
Section 96 CPC. No doubt the findings of fact of the first

appellate court can be challenged in second appeal on the
ground that the said findings are based on no evidence or are
perverse, but even in that case a question of law has to be
r formulated and framed by the High Court to that effect.”

10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this

principle has been reiterated: (SCC p. 532)

“10. It is settled law that in exercise of power under Section 100
of the Code of Civil Procedure, the High Court cannot interfere
with the finding of fact recorded by the first appellate court

which is the final court of fact, unless the same is found to be
perverse. This being the position, it must be held that the High
Court was not justified in reversing the finding of fact recorded
by the first appellate court on the issues of existence of

landlord-tenant relationship between the plaintiff and the
defendant and default committed by the latter in payment of
rent.”

11. In the case before us, there is clear and cogent evidence on the
side of the plaintiff/appellant that there has been structural alteration

in the premises rented out to the respondents without his consent.
Attempt by the respondent-defendants to establish otherwise has
been found to be totally non-acceptable to the trial court as well as
the first appellate court. Material alteration of a property is not a fact
confined to the exclusive/and personal knowledge of the owner. It is a
matter of evidence, be it from the owner himself or any other witness
speaking on behalf of the plaintiff who is conversant with the facts and
the situation. PW-1 is the vendor of the plaintiff, who is also his power of

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attorney. He has stated in unmistakable terms that there was structural
alteration in violation of the rent agreement. PW-2 has also supported
the case of the plaintiff. Even the witnesses on behalf of the defendant,
partially admitted that the defendants had effected some structural
changes.

.

12. Be that as it may, the question whether there is a structural
alteration in a tenanted premises is not a fact limited to the personal

knowledge of the owner. It can be proved by any admissible and
reliable evidence. That burden has been successfully discharged by
the plaintiff by examining PWs-1 and 2. The defendants could not
shake that evidence. In fact, that fact is proved partially from the

evidence of the defendants themselves, as an admitted fact. Hence,
only the trial court came to the definite finding on structural alteration.
That finding has been endorsed by the first appellate court on re-
appreciation of the evidence, and therefore, the High Court in second

appeal was not justified in upsetting the finding which is a pure

question of fact. We have no hesitation to note that both the questions
of law framed by the High Court are not substantial questions of law.
Even if the finding of fact is wrong, that by itself will not constitute a

question of law. The wrong finding should stem out on a complete
misreading of evidence or it should be based only on conjectures and
surmises. Safest approach on perversity is the classic approach on the

reasonable man’s inference on the facts. To him, if the conclusion on
the facts in evidence made by the court below is possible, there is no

perversity. If not, the finding is perverse. Inadequacy of evidence or a
different reading of evidence is not perversity.

13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court
has dealt with the limited leeway available to the High Court in second
appeal. To quote para 34: (SCC pp.278-79)

“34. Admittedly, Section 100 has introduced a definite
restriction on to the exercise of jurisdiction in a second appeal
so far as the High Court is concerned. Needless to record that
the Code of Civil Procedure (Amendment) Act, 1976
introduced such an embargo for such definite objectives and
since we are not required to further probe on that score, we
are not detailing out, but the fact remains that while it is true

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that in a second appeal a finding of fact, even if erroneous, will
generally not be disturbed but where it is found that the findings
stand vitiated on wrong test and on the basis of assumptions
and conjectures and resultantly there is an element of
perversity involved therein, the High Court in our view will be
within its jurisdiction to deal with the issue. This is, however, only
in the event such a fact is brought to light by the High Court

.

explicitly and the judgment should also be categorical as to the

issue of perversity vis-à-vis the concept of justice. Needless to
say however, that perversity itself is a substantial question worth
adjudication — what is required is a categorical finding on the
part of the High Court as to perversity. In this context reference

be had to Section 103 of the Code which reads as below:

‘103. Power of High Court to determine issues of fact.- In any
second appeal, the High Court may, if the evidence on the
record is sufficient, determine any issue necessary for the

disposal of the appeal,–

(a) which has not been determined by the lower
appellate court or by both the court of first instance and
r the lower appellate court, or

(b) which has been wrongly determined by such court
or courts by reason of a decision on such question of
law as is referred to in Section 100.”

The requirements stand specified in Section 103 and nothing
short of it will bring it within the ambit of Section 100 since the
issue of perversity will also come within the ambit of substantial
question of law as noticed above. The legality of finding of fact
cannot but be termed to be a question of law. We reiterate

however, that there must be a definite finding to that effect in
the judgment of the High Court so as to make it evident that

Section 100 of the Code stands complied with.”

14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the
decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi

Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari
case6, SCC p. 615)

“30. The findings of fact recorded by a court can be held to be
perverse if the findings have been arrived at by ignoring or
excluding relevant material or by taking into consideration
irrelevant/inadmissible material. The finding may also be said to
be perverse if it is “against the weight of evidence”, or if the
finding so outrageously defies logic as to suffer from the vice of
irrationality. If a decision is arrived at on the basis of no
evidence or thoroughly unreliable evidence and no reasonable

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person would act upon it, the order would be perverse. But if
there is some evidence on record which is acceptable and
which could be relied upon, the conclusions would not be
treated as perverse and the findings would not be interfered
with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC
635 : 1985 SCC (LS) 131 : AIR 1984 SC 1805] , Kuldeep
Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (LS) 429

.

: AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of

A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC
589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3
SCC (Cri) 1179] .)”

This Court has also dealt with other aspects of perversity.

15. We do not propose to discuss other judgments, though there is
plethora of settled case law on this issue. Suffice to say that the

approach made by the High Court has been wholly wrong, if not,
perverse. It should not have interfered with concurrent findings of the
trial court and first appellate court on a pure question of fact. Their
inference on facts is certainly reasonable. The strained effort made by

the High Court in second appeal to arrive at a different finding is wholly

unwarranted apart from being impermissible under law. Therefore, we
have no hesitation to allow the appeal and set aside the impugned
judgment of the High Court and restore that of the trial court as
confirmed by the appellate court.”

13. Thus, it can be taken to be settled that a judgment can be

said to be perverse if the conclusions arrived at by the learned Courts

below are contrary to evidence on record, or if the Court’s entire

approach with respect to dealing with the evidence or the pleadings is

found to be patently illegal, leading to the miscarriage of justice, or if

its judgment is unreasonable and is based on erroneous understanding

of law and of the facts of the case. A perverse finding is one which is

based on no evidence or one that no reasonable person would have

arrived at. Therefore, unless it is found that some relevant evidence has

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not been considered or that certain inadmissible material has been

taken into consideration, the findings cannot be said to be perverse.

14. Judged in the light of the aforesaid exposition of law, in

.

case the facts of the case are adverted to, it would be noticed that

plaintiff stepped into witness box as PW2 and deposed regarding his

marriage with Asha Devi @ Vidya Devi, on 27.04.1978 and stated that

seven children had been born out of the said wedlock.

15. As regards defendant No. 1, he stated that she used to visit

his house but he had not solemnized marriage with her and defendants

No. 2 and 3 were her children which had been born without marriage.

16. In cross-examination, this witness admitted that in the

proceedings under Section 125 Cr.P.C., he has been held liable to pay

maintenance @ Rs. 850/- per month. However, the said decision has

been assailed in appeal which was stated to be pending in the Court

of learned Sessions Judge. This witness admitted that the factum of

marriage having been recorded in the Panchayat record but denied

having got issued a legal notice to defendant No. 1 through Shri Rajiv

Mehta, Advocate. He also denied that in the said notice he had got

recorded that on 20.08.1998 defendant No. 1 without his consent left his

company alongwith her two children. This witness admitted his

signature on a copy of the statement Ex.R-2 which was made by this

witness in the proceeding before the learned CJM on 24.09.2011.

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17. PW3 Kalma Nand, Secretary, Gram Panchayat, Junga had

produced register No. 1 pertaining to the year 1978 wherein the

marriage between Ram Krishan and Asha Devi @ Vidya was recorded

.

vide Ex.PW3/A. He also proved the copy of Pariwar Register Ex.PW3/B,

wherein the defendant No. 1 has been recorded as the wife of the

plaintiff and defendants No. 2 and 3 have been recorded as the

children of the plaintiff. This witness has feigned ignorance regarding

Asha Devi being the wife of the plaintiff.

18. PW4 Asha Devi wife of the plaintiff has stepped into the

witness box and deposed that the plaintiff was her husband and the

marriage was soleminised on 27.04.1978 and out of this wedlock she

gave birth to seven children. She admitted that defendant No. 1 was

her younger sister and was having two children but feigned ignorance

about the paternity of these children. She also feigned ignorance that

defendant No. 1 had filed a petition for maintenance against the

plaintiff and has also shown ignorance that defendant No. 1 had

married the plaintiff in the year 1995 as per Hindu rites and customs. She

also feigned ignorance about defendants No. 2 and 3 being the

children of the plaintiff from defendant No. 1.

19. To rebut the evidence, defendant No. 1 stepped into the

witness box as DW1 and deposed that her marriage with the plaintiff

was solemnized as per Hindu rites and customs in the month of

February, 1995 and out of this marriage defendants No. 2 and 3 had

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been born. This witness further stated that she has filed a petition for

maintenance and the same was allowed vide Ex. R3 against which the

plaintiff had filed revision petition, however, the same was dismissed

.

vide Ex.R4. She further proved Ex.P-5 regarding her marriage and further

proved notice Ex. R-7 in which the plaintiff had requested to come

back to the matrimonial home alongwith children wherein he has got

recorded that defendant No. 1 was his legally wedded wife.

20. In cross-examination, this witness reiterated that the

marriage was solemnized in the year, 1995 by her father at Kajoura,

wherein, number of persons had participated. The marriage ceremony

was performed by Jagdish Sharma and all the brothers and sisters of this

witness had attended the marriage. She denied that Asha Devi @

Vidya solemnized marriage with the plaintiff in the year 1978. She also

denied that seven children had been born out of this wedlock. She

further stated that after marriage she was residing at village Baura and

thereafter she had been thrown out of the matrimonial home. Now-a-

days, she was residing at village Kheel Khajaivda at her parental home.

21. Having made a note of the oral evidence, now adverting

to the documentary evidence i.e. Ex. PW3/A is copy of the marriage

register, wherein the marriage of plaintiff and Asha Devi has been

recorded. Ex.PW3/B is a copy of Pariwar Register, wherein defendant

No. 1 is shown to be the wife of the plaintiff and defendants No. 2 and 3

have been shown to be their children. Ex.R-2 is the statement of the

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plaintiff which was made by him in the proceedings before the learned

CJM, Shimla on 24.9.2011. Whereas Ex. R-3 is the order passed by the

learned Magistrate awarding maintenance in favour of the defendants

.

and Ex. R4 is the order by virtue of which the revision petition filed by the

plaintiff against the order Ex.R3 was dismissed by the learned Sessions

Judge, Shimla.

22. This in entirety is the evidence led by the parties and it

would be evidently clear that the plaintiff virtually led no evidence

which may indicate that he had no relationship with defendant No. 1 or

he was a complete stranger. He has candidly admitted that

defendants No. 2 and 3 were the children of defendant No. 1, who

according to him were born without marriage.

23. It is not the case of the plaintiff that defendant No. 1 was a

stranger, rather his specific case is that she had been visiting his home

off and on.

24. The entire edifice of the plaintiff case stands destroyed

when copy of Pariwar Register Ex.PW3/B is perused wherein the plaintiff

and defendant No. 1 has been shown as husband and wife and

defendants No. 2 and 3 their children. Likewise, in the notice that was

issued by the plaintiff through Shri Rajiv Mehta, Advocate, the plaintiff

has categorically admitted defendant No. 1 to be his wife and

defendants No. 2 and 3 to be his children.

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25. Apart from above, there is other overwhelming evidence

available on the record to suggest that defendants No. 2 and 3 are the

children of the plaintiff born out of the relationship between the plaintiff

.

and defendant No.1.

26. It is otherwise more than settled that the appellate Court

continues to be a final court of fact and law and second appeal to the

High Court lies only where there is a substantial question of law.

Meaning thereby, the pure findings of fact remain immune from

challenge before this Court in second appeal. It shall be apt to refer to

three Judges Bench decision of the Hon’ble Supreme Court in Santosh

Hazari vs. Purushottam Tiwari (deceased) by LRs (2001) 3 SCC 179

wherein it was observed as follows:

“15……The first appellate Court continues, as before, to be a final

Court of facts; pure findings of fact remain immune from challenge
before the High Court in second appeal. Now the first appellate Court
is also a final Court of law in the sense that its decision on a question of

law even if erroneous may not be vulnerable before the High Court in
second appeal because the jurisdiction of the High Court has now

ceased to be available to correct the errors of law or the erroneous
findings of the first appellate Court even on questions of law unless

such question of law be a substantial one.”

27. What would be the substantial question of law was

thereafter considered in para 12 of the judgment, which reads thus:

“12. The phrase ‘substantial question of law’, as occurring in the
amended Section 100 is not defined in the Code. The word substantial,

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as qualifying “question of law”, means – of having substance, essential,
real, of sound worth, important or considerable. It is to be understood
as something in contradistinction with – technical, of no substance or
consequence, or academic merely. However, it is clear that the
legislature has chosen not to qualify the scope of substantial question

.

of law by suffixing the words of general importance as has been done
in many other provisions such as Section 109 of the Code or Article
133(1)(a) of the Constitution. The substantial question of law on which a

second appeal shall be heard need not necessarily be a substantial
question of law of general importance. In Guran Ditta Anr. Vs. T. Ram
Ditta, AIR 1928 Privy Council 172, the phrase “‘substantial question of
law” as it was employed in the last clause of the then existing Section

110 of the C.P.C. (since omitted by the Amendment Act, 1973) came
up for consideration and their Lordships held that it did not mean a
substantial question of general importance but a substantial question
of law which was involved in the case as between the parties. In Sir

Chunilal V. Mehta Sons Ltd. Vs. The Century Spinning and

Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench
expressed agreement with the following view taken by a Full Bench of
Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR

1952 Madras 264:-

“When a question of law is fairly arguable, where there is room

for difference of opinion on it or where the Court thought it
necessary to deal with that question at some length and discuss

alternative view, then the question would be a substantial
question of law. On the other hand if the question was
practically covered by the decision of the highest Court or if

the general principles to be applied in determining the question
are well settled and the only question was of applying those
principles to the particular fact of the case it would not be a
substantial question of law.”

and laid down the following test as proper test, for determining
whether a question of law raised in the case is substantial:-

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“The proper test for determining whether a question of law
raised in the case is substantial would, in our opinion, be
whether it is of general public importance or whether it directly
and substantially affects the rights of the parties and if so
whether it is either an open question in the sense that it is not

.

finally settled by this Court or by the Privy Council or by the
Federal Court or is not free from difficulty or calls for discussion
of alternative views. If the question is settled by the highest

Court or the general principles to be applied in determining the
question are well settled and there is a mere question of
applying those principles or that the plea raised is palpably
absurd the question would not be a substantial question of

law.”

28. Finally, in paragraph 14, the Hon’ble Supreme Court laid

down the guidelines on the test of as to what is the substantial question

of law, which reads thus:

“14. A point of law which admits of no two opinions may be a
proposition of law but cannot be a substantial question of law. To be

“substantial”, a question of law must be debatable, not previously
settled by law of the land or a binding precedent, and must have a
material bearing on the decision of the case, if answered either way, in

so far as the rights of the parties before it are concerned. To be a

question of law involving in the case there must be first a foundation for
it laid in the pleadings and the question should emerge from the
sustainable findings of fact arrived at by court of facts and it must be

necessary to decide that question of law for a just and proper decision
of the case. An entirely new point raised for the first time before the
High Court is not a question involved in the case unless it goes to the
root of the matter. It will, therefore, depend on the facts and
circumstance of each case whether a question of law is a substantial
one and involved in the case, or not; the paramount overall
consideration being the need for striking a judicious balance between

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the indispensable obligation to do justice at all stages and impelling
necessity of avoiding prolongation in the life of any lis.”

29. The findings recorded by the learned courts below are

.

based on the correct appreciation of the pleadings and the evidence

and are pure findings of fact are immune from challenge in the second

appeal.

30. No question of law much less substantial question of law

arises for consideration in this appeal.

31. Consequently, I find no merit in this appeal and the same is

dismissed. Pending application, if any, also stands disposed of.

(Tarlok Singh Chauhan),
Judge.

December 05, 2017
sanjeev

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