1997 Supreme(SC) 251

1997(2) Supreme 152
SUPREME COURT OF INDIA
Dr. A.S. Anand and S.B. Majmudar, JJ.
Panchugopal Barua & Ors. -Appellants
versus
Umesh Chandra Goswami & Ors. -Respondents
Civil Appeal No. 3631 of 1993
Decided on 12-2-1997
Counsel for the Parties :
For the Appellants : Vijay Hansaria, Sunil K. Jain, Jatinder K. Bhatia, Manish Kumar, Advocates for M/s. Jain Hansaria & Co., Advocates.
For the Respondents : P.K. Goswami, Sr. Advocate, Ms. Vijay Lakshmi Menon, Advocate.

IMPORTANT POINT
The existence of a substantial question of law is the sine-qua-non for the exercise of the jurisdiction under the amended provisions of Section 100 Civil Procedure Code.

Headnote:(i) Civil Procedure Code, 1908-Section 100 as amended by Amendment Act of 1976-Second Appeals-Scope of-Jurisdiction of High Court to entertain a second appeal after 1976 amendment is confined only to such appeals as involve a substantial question of law, specifically set out in memorandum of appeal and formulated by High Court-Court to indicate in its order substantial question of law which it proposes to decide even if it was not earlier formulated by it.

       Held, an appellant is not to be allowed to set up a new case in second appeal or raise a new issue (otherwise than a jurisdictional one), not supported by the pleadings or evidence on the record and unless the appeal involves a substantial question of law, a second appeal shall not lie to the High Court under the amended provisions. Both the trial Court and the lower appellate Court had decided the cases only on questions of fact, on the basis of the pleadings and the evidence led by the parties before the Trial Court. No pure question of law nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court by the respondent. The High Court was, therefore, not justified in entertaining the second appeal on an altogether new point, neither pleaded nor canvassed in the subordinate courts and that too by overlooking the changes brought about in Section 100 C.P.C. by the Amendment Act of 1976 without even indicating that a substantial question of law was required to be resolved in the second appeal. To say the least, the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not to frustrate it by ignoring the same. (Para 9)

       (ii) Civil Procedure Code, 1908-Section 100-Title suit-Plaintiff s case that he allowed defendant to make permissive use of suit land by raising temporary structure and that he contrary to understanding refused to hand over possession-Defendant s defence that he raised construction as prospective purchaser-Concurrent findings-Plea of defendant found false-Second appeal-Allowed on basis of a plea claiming benefit of Section 60(B) Easement Act, raised before High Court for first time-Judgment of High Court held not sustainable - Conduct of defendant respondent also disentitled him to any relief on basis of equity, justice and good conscience -Provisions of Section 60(b) of Easement Act could not be attracted in State of Assam.

       Held : There may not be any quarrel with the abstract proposition of law that a plaintiff can succeed on the strength of his own case and not on the weakness of the defence but what the High Court seems to have completely overlooked is that the plaintiff s case specifically was that he had allowed the defendant to make permissive use of the suit land as a licensee and had permitted the raising of temporary structure thereon for a period of two years beginning 1st June, 1963 and that the defendant acting on the licence had raised a temporary structure on the suit land and contrary to the understanding had refused to hand back the possession of the suit land after the expiry of two years. This plea of the plaintiff had to be taken as a whole and could not be dissected for the purpose of granting relief to the respondent by accepting a part of it. On the plaintiff s plea, taken as a whole, the question of irrevocability of the licence could not at all arise because for granting relief on the principles contained in Section 60(b) of the Easements Act, a licence becomes irrevocable provided the following three conditions are satisfied. (Para 10)

       On the strength of the plaintiff-appellant s case, as noticed above, the High Court fell in error in holding that the licence could not be revoked because of the raising of permanent structure by the licensee, a case totally inconsistent with the defence raised in the Trial Court and the First Appellate Court by respondent No. 1. Such a plea ought not to have been allowed to be raised at the stage of the second appeal in the High Court for the first time in the second appeal. (Para 11)

       All the three courts, including the High Court, found that plea of the respondent to be false in the suit for specific performance filed by the respondent. S.L.P. against the judgment and decree, was also dismissed by this Court. How then could the respondent be found entitled to any relief in equity, when his defence was based on falsehood? We have noticed the conduct of the respondent in denying the title of the appellant herein and putting forward a plea which has been concurrently found by all the courts to be false. He, therefore, certainly did not come to the Court with clean hands. Thus, even if it be assumed for the sake of argument, that the principles of justice, equity and good conscience underlying the provisions of Section 60(b) of the Easements Act, could be attracted in a given case in the State of Assam where the Easements Act had not been extended, the conduct of the respondent disentitled him to any relief on the basis of equity, justice and good conscience . (Para 14)

       (iii) JUDICIAL PRACTICE-It is not permissible to extend provisions of an Act, made not applicable by legislature to a State, by a judicial order-It amounts to enacting legislation, a power not vested in judiciary. (Para 13)

       (iv) JUDICIAL PRACTICE AND PROCEDURE-It is obligation of Courts of law to further clear intendment of legislature and not to frustrate it by ignoring the same. (Para 9)