The court confirmed that a second appeal under Section 100 does not allow retrials on factual matters but should focus on substantial questions of law; failure to establish such questions leads to dismissal.

JUDGMENT

J.C.DOSHI, J.

1. By way of this Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short “Code”), the appellant-original plaintiff seeks to challenge the judgment and decree dated 10.01.2025 passed in Regular Civil Appeal No.144 of 2018 by the learned Principal District Judge, Bhavnagar, by which, the appellant’s appeal was dismissed confirming the judgment and decree dated 19.11.2018 passed in Regular Civil Suit No.383 of 2015 (Old Special Civil Suit No.223 of 1997) by the learned 5^th Additional Senior Civil Judge, Bhavnagar.

2. In appeal memo, the appellant raised the following questions as substantial questions of law:-

“(1) Whether learned trial court as well as learned appellate court have committed a substantial error in law in applying the principle of preponderance of probability into the admitted fact?

(2) Whether learned trial court as well as learned appellate court have committed grave error in interpretation of section 58 of evidence act and thereby the discretion is wrongly applied to this case?

(3) Whether learned appellate court have committed a substantial error by taking view contrary to learned trial court in admitted facts and even after that confirmed the findings of learned trial court?

(4) Whether learned first appellate court have committed a substantial error by not framing proper points of determination as per the requirement of Order 41 rule 31 of the Code of Civil Procedure, 1908?

(5) Whether learned first appellate court have committed a substantial error by not giving an independent reason after assessing the entire evidence?

3. The brief facts borne out from the record are that, the plaintiff filed Special Civil Suit No.223 of 1997 before the learned Senior Civil Judge, Bhavnagar for recovery of Rs.2,51,000/- from the defendant with interest at the rate of 18% per annum from 15.04.1997 with further interest at the same rate from the date of the suit till realization. The suit was subsequently renumbered as Regular Civil Suit No.383 of 2015. The suit was filed on the ground that the defendant was in need of money to avail a letter of credit facility and therefore, requested the plaintiff to lend Rs.2,51,000/-. Pursuant to their relationship, plaintiff advanced Rs.2,51,000/- to the defendant by cheque No.919027 dated 17.08.1996 as a hand-loan. The plaintiff later demanded repayment through Registered-AD Notice dated 14.04.1997. In response, surprising reply sent by defendant states that, on 18.10.1996, plaintiff had visited his premises to purchase two diesel generator sets for a total sale consideration of Rs.17,60,000/- and had paid Rs.2,51,000/- as advance payment. However, later on, plaintiff did not agree to purchase two generator sets and failed to pay remaining amount of Rs.15,09,000/-. Therefore, defendant constrained to sell two generator sets in the open market for Rs.14,51,000/- thereby incurring a financial loss of Rs.3,09,000/-. The defendant deducted the amount paid in advance by plaintiff and claimed that he suffered a loss of Rs.50,000/-. The plaintiff having received such reply and found that the defendant is not ready and willing to repay the amount of Rs.2,51,000/-, he filed a Special Civil Suit for recovery of the said amount with interest. The suit was later on renumbered as a Regular Civil Suit. Upon enhancement of the pecuniary jurisdiction of the Civil Court, the said notice was served to