2011 Supreme(Kar) 20

High Court of Karnataka (Circuit Bench At Dharwad)
THE HONOURABLE MR. JUSTICE ARAVIND KUMAR
Ninganagouda
Versus
Kalubai & Others
M.S.A.No. 390 of 2010 (DEC & PER)
Decided on : 07-01-2011

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 104: [Aravind Kumar,J] Miscellaneous Second Appeal against an Order of remand passed under Order 41 Rule 23-A - Necessity of formulating a substantial question of law by the High Court - Substantial question of law to be framed under Section 100(4) - Held, An appeal under Section 104 CPC cannot be elevated to the status of an appeal filed under Section 100 against an order of remand made by Lower Appellate Court in exercise of its power under Order 41 Rule 23-A which would squarely fall within Order 43 Rule 1(u). In order to consider and examine the question as to whether substantial question of law is to be framed in an appeal filed under Section 104 of C.P.C against an order passes under Order 41 Rule 23-A it would also be necessary to examine Section 100 of CPC which provides for filing second appeal vis-a-vis Section 104 of C.P.C which also provides for filing an appeal against certain orders only and in view of the fact same is treated as a second appeal. - Further held, Under Section 100(4) High Court will examine if there is any substantial question of law involved in an appeal and if so, would formulate the substantial questions of law, if any, for being adjudicated. Whereas under Section 104 filing of appeal is restricted to orders enumerated in Clauses (ff), (ffa), (g), (h) and (i). For entertaining an appeal filed under Section 104 what requires to be seen or examined is to find out as to whether such an appeal is filed against any of the orders as enumerated in Clauses (ff), (ffa), (g), (h) and (i) and it need not go beyond it. - A comparative study of Section 100 and 104, it would emerge in Section 104 the words "substantial question of law" is not to be found which mandates High Court to formulate substantial questions of law for being adjudicated. The law makers have consciously omitted to add "substantial question of law" for consideration of an appeal or entertaining an appeal filed under Section 104. An appeal under Section 104 is an "appeal simplicitor" and it would not be an appeal required to be entertained or considered for being adjudicated after formulating substantial question of law. The words as found in the language of sub-Section (4) of Section 100 of CPC is not to be found in the language used in Section 104 of CPC. On facts, held, Thus, appeal in question has been filed under Section 104, which is against an order of remand and appeal against such order being expressly found in Order 43 Rule (1)(u) and no substantial questions of law are required to.

       KARNATAKA STAMP ACT, 1957 - Section 35: [Aravind Kumar,J] Admission of instrument where not be questioned - Power of the Appellate Court to examine the correctness or otherwise of admissibility of a document - Held, It is clear from Section 35 that when an instrument and document admitted in evidence such admission of document cannot be questioned otherwise except as provided under Section 58 of the said Act. This provision would be applicable, when the defendants have appeared, participated and contested in the proceedings and did not choose to raise objection for marking of the said document and at a later stage objects to it. However, this principle cannot be extended and held applicable either when defendant has not appeared and contested the matter or when such a contention is raised by a party before Appellate Court about marking of a document either on the ground that he had not participated in the proceedings or such marking was impermissible in law or against law and in such circumstances it would no whittle down the power of Appellate Court to examine the correctness or otherwise and such a finding given by the Trial Court about admissibility as also its marking. Further, A document becomes inadmissible in evidence unless the Author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross-examination in a Court of law. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken. - On facts, held, in the instant case defendants have not participated in the proceedings and not having filed their written statement and they having been placed exparte defendants are fully justified in raising objection regarding admissibility of the document before the Appellate Court. The Appellate Court was also within its power to examine the correctness or otherwise as to the marking of the document in question.