2006 Supreme(Kar) 795

Karnataka High Court
SANGLI BANK LIMITED, BIJAPUR - Appellant
Versus
BHIMAPPA - Respondent
Decided On : 10-19-06
Miscellaneous Second Appeal Nos. 86 to 106 of 2004

Headnote:Civil Procedure Code, 1908- Appeal under

       Whether an appeal would lie under if order of remand is treated as a decree and not a mere order - Held, it is safe to adopt that such an appeal be heard only on grounds enumerated under Section 100 of Code - Settled Principle (2004 Supreme 486).

       Code of Civil Procedure, 1908- Appeal under - Order 43, Rule 1(u) -Appeal under -Whether an appeal would lie under if order of remand is treated as a decree and not a mere order - Held, it is safe to adopt that such an appeal be heard only on grounds enumerated under Section 100 of Code - Settled Principle (2004 Supreme 486).

       Negotiable Instruments Act, 1881- Promissory note - Section 26 - Promissory note - Defence as to - There is nothing in law to debar maker of a promissory note from pleading as a defence to a suit thereon that as a matter of fact note was given for a special purpose and was not payable until happening of a certain event, which so far, had not yet happened - Settled Principle(ILR 1928 All 754).

       Indian Evidence Atc, 1872 - Promissory note - Section 92(3) - Promissory note - Defence as to - There is nothing in law to debar maker of a promissory note from pleading as a defence to a suit thereon that as a matter of fact note was given for a special purpose and was not payable until happening of a certain event, which so far, had not yet happened - Settled Principle (ILR 1928 All 754).

       Indian Evidence Act, 1872 - Failure to produce documents - Section 114 - Failure to produce documents -Document in possession of party obliged to produce same in order to satisfactorily establish claim, fails and/or neglects to produce same, an adverse inference may be drawn against him. [Ram Mohan Reddy, J]: Having regard to the facts of this case, more particularly the denial of the entire transaction by the loanees, and in the absence of proof of the documents allegedly executed by the loanees, it cannot be said that non-appearance of the loanees as a witness would attract application of illustration (g) of Section 114 of the Evidence Act, to draw an adverse inference, in order to establish the case of the appellant. It is nedless to state that the appellant ought to have lead in substantial legal evidence in support of its claims against the loanee to the satisfaction of the Courts below. Having not done so, the failure on the part of the loanee to enter the witness box, no adverse inference could be drawn against him.

       Referred : 25 Cal 401=2 CWN 188; ILR 1928 All. 754; AIR 2004 SCW 7064; (1999) 3 SCC 457 Head Note(c); (1999) 3 SC 573 Head Note (1); 2004 (2) Supreme 486; 2006 AIR SCW 2404; 2006(4) AIR Kar R 628.

       Code of Civil Procedure,1908 -Substantial question of law - Section 100 - Substantial question of law - What is. Dilatory Settled Principles: If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be term to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as appreciation of the facts, the documentary evidence of the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring intereference in second appeal. This Court in (AIR 1976 SC 830) Reserve Bank of India Vs. Ramkrishna Govind Morey (1976 (1) SCC 803) held that whether the Trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference(2006 (4) AIR Kar R 628).

       Code of Civil Procedure, 1908- Interference under - Section 100 - Interference under - When court gets jurisdiction. Dilatory Settled Principles: Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interefering under Section 100, C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intenstion of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intenstion was very clear that legislature never wanted second appeal to become "third on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was: i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved. ii) The substantial question of law to precisely state such question; iii) A duty has ben cast on the High Court to formulate substantial question of law before hering the appeal; iv) Another part of the Section is that the appeal shall be heard only on that question.(2006 AIR SCW 2404).

       Negotiable Instruments Act, 1881- Promissory note - Section 26 - Promissory note - Defence as to - There is nothing in law to debar maker of a promissory note from pleading as a defence to a suit thereon that as a matter of fact note was given for a special purpose and was not payable until happening of a certain event, which so far, had not yet happened - Settled Principle(ILR 1928 All 754).

       Land Acquisition Act, 1894- Second appeal- Section 54 (As amended by Karnataka Act 17/1961) - Second appeal - Section 100, CPC applies - Hence, appellant has to make out a substantial question of law for intereference with orders impugned.

       Cases Referred : 25 Cal 4012 CWN 188; ILR 1928 All. 754; AIR 2004 SCW 7064; (1999) 3 SCC 457 Head Note(c); (1999) 3 SC 573 Head Note (1); 2004 (2) Supreme 486; 2006 AIR SCW 2404; 2006(4) AIR Kar R 628.

       Indian Evidence Atc, 1872 - Promissory note - Section 92(3) - Promissory note - Defence as to - There is nothing in law to debar maker of a promissory note from pleading as a defence to a suit thereon that as a matter of fact note was given for a special purpose and was not payable until happening of a certain event, which so far, had not yet happened - Settled Principle(ILR 1928 All 754).

       Indian Evidence Act, 1872 - Failure to produce documents - Section 114 - Failure to produce documents -Document in possession of party obliged to produce same in order to satisfactorily establish claim, fails and/or neglects to produce same, an adverse inference may be drawn against him. [Ram Mohan Reddy, J]: Having regard to the facts of this case, more particularly the denial of the entire transaction by the loanees, and in the absence of proof of the documents allegedly executed by the loanees, it cannot be said that non-appearance of the loanees as a witness would attract application of illustration (g) of Section 114 of the Evidence Act, to draw an adverse inference, in order to establish the case of the appellant. It is nedless to state that the appellant ought to have lead in substantial legal evidence in support of its claims against the loanee to the satisfaction of the Courts below. Having not done so, the failure on the part of the loanee to enter the witness box, no adverse inference could be drawn against him.

       Cases Referred : 25 Cal 401=2 CWN 188; ILR 1928 All. 754; AIR 2004 SCW 7064; (1999) 3 SCC 457 Head Note(c); (1999) 3 SC 573 Head Note (1); 2004 (2) Supreme 486; 2006 AIR SCW 2404; 2006(4) AIR Kar R 628.

       Land Acquisition Act, 1894- Second appeal- Section 54 (As amended by Karnataka Act 17/1961) - Second appeal - Section 100, CPC applies - Hence, appellant has to make out a substantial question of law for intereference with orders impugned.

       Cases Referred : 25 Cal 4012 CWN 188; ILR 1928 All. 754; AIR 2004 SCW 7064; (1999) 3 SCC 457 Head Note(c); (1999) 3 SC 573 Head Note (1); 2004 (2) Supreme 486; 2006 AIR SCW 2404; 2006(4) AIR Kar R 628.

       Civil Procedure Code,1908 -Substantial question of law - Section 100 - Substantial question of law - What is. Settled Principles: If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be term to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as appreciation of the facts, the documentary evidence of the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring intereference in second appeal. This Court in (AIR 1976 SC 830) Reserve Bank of India Vs. Ramkrishna Govind Morey (1976 (1) SCC 803) held that whether the Trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference(2006 (4) AIR Kar R 628).

       Civil Procedure Code, 1908

       Interference under - When Court gets jurisdiction. Settled Principles: Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interefering under Section 100, C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intenstion of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intenstion was very clear that legislature never wanted second appeal to become "third on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was: i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved. ii) The substantial question of law to precisely state such question; iii) A duty has ben cast on the High Court to formulate substantial question of law before hering the appeal; iv) Another part of the Section is that the appeal shall be heard only on that question.(2006 AIR SCW 2404).

       Civil Procedure Code, 1908

       Applicability - Even if a suit proceeds exparte and in absence of a written statement unless applicability of rule is attracted and Court acts thereunder, necessity of proof by plaintiff of his case to satisfaction of Court cannot be dispensed with - Merely because defendant is absent, Court shall not admit evidence admissibility whereof is execluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence.

       Cases Referred : 25 Cal 401; 2 CWN 188; ILR 1928 All. 754; AIR 2004 SCW 7064; (1999) 3 SCC 457 Head Note(c); (1999) 3 SC 573 Head Note (1); 2004 (2) Supreme 486; 2006 AIR SCW 2404; 2006(4) AIR Kar R 628.