- (1.) This second appeal has been preferred against the judgment and decree dated 5.9.2003 passed by learned Civil Judge (J.D.), Haveli, district Faizabad in regular Suit No. 60 of 1980, by which the plaintiff's suit for permanent and prohibitory injunction was dismissed with costs and the judgment and order dated 25.8.2012 passed in regular Civil Appeal No. 59 of 2003, by which the appeal was allowed, cross-objection was dismissed and the plaintiff's suit was decreed with costs. Heard learned Counsel for both the parties and have gone through the records.
(2.) The learned first Appellate Court has rightly allowed the appeal, as the learned Trial Court has wrongly discussed the evidence as well as law on the point. This case was earlier decided and an appeal was preferred, which was allowed and the case was remanded back to the learned Trial Court with the direction to re-hear the matter and decide the case in accordance with law. But the learned Trial Court has repeatedly relied upon the discussions made by the learned first Appellate Court, by which the case was remanded back for re-trial as if they were binding upon it. Due to this misconception of law, the learned Trial Court has wrongly interpreted the evidence, which has been corrected by the learned first Appellate Court in a judicious manner. There is no infirmity in the discussions made and the conclusion arrived at by the learned first Appellate Court. No substantial question of law is involved in this case.
(3.) In Sir Chunnilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., 1962 AIR(SC) 1314 the Hon'ble Apex Court for the purposes of determining the issue has held: The proper test for determining whether a question of law raises 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. Further in Rajeshwari v. Puran Indoria, 2005 61 AllLR 145 it was held: The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a sine-qua-non for the exercise of jurisdiction under the provisions of section 100, C.P.C. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. In Smt. Bibhabati Devi v. Ramendra Narayan Roy and others, 1947 AIR(PC) 19 it has been held: the Privy Council has provided the guidelines as in what cases the second appeal can be entertained, explaining the provisions existing prior to the amendment of 1976, observing .... that miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happen not in the proper sense of the word a judicial procedure at all. That the violation of some principles of law or procedure must be such erroneous proposition of law that if that proposition to be corrected, the finding cannot stand, or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding, is such a question of law. In Vijay Kumar Talwar v. Commissioner of Income Tax, New Delhi, 2011 1 SCC 673, it has been held: 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 on the decision of the case, if answered either way, insofar 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. It will, therefore, depend on the facts and circumstances of each case, whether a question of law is a substantial one or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. In the case of Union of India v. Ibrahim and another, 2012 94 AllLR 895, in Civil Appeal No. 1374 of 2008, decided on July 17, 2012, reported in : 2012 (94) ALR 895, the Hon'ble Apex Court has held: There may be exception circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of section 100 C.P.C. It may be necessary to do so for the reason that after all the purpose of the establishment of Courts of justice is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction. In second appeal the Court frames the substantial question of law at the time of admission of the appeal and the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions or the Court comes to the conclusion that the question(s) framed could not be the substantial question(s) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal. In view of the law as discussed above, the appeal is dismissed.;