SHARMA, J. - (1.) IN a suit for declaration, possession and mandatory injunction instituted in respect of property in question by the plaintiff respondent on February 9, 1987, the defendant appellant did not choose to file written statement, even after the trial court kept the suit pending for a period of five and half years for this purpose only. The defendant appellant also failed to cross-examine the witnesses adduced by the plaintiff respondent and did not examine any witness on his behalf. Learned trial court on January 8, 2001 decreed the suit. Civil regular first appeal preferred by the defendant appellant was dismissed by the learned appellate has now filed the instant second appeal impugning the aforequoted findings of the courts below.
(2.) DR. Prakash Chand Jain, learned counsel appearing for the appellant, canvassed that the suit instituted by the respondent on the basis of the agreement dated December 1, 1985 stated to be made in his favour by one Shriniwas Vaidhya was not maintainable without seeking the relief of specific performance. The agreement was not admissible in evidence and on the basis of said document decree for declaration could not be passed. It was further contended that despite the directions issued by the High Court in the order dated January 16, 1996 the trial court failed to summon the President and the Secretary of the Society. Effect of section 51 of the Transfer of Property Act was not taken into consideration by the courts below. The civil court had no jurisdiction to entertain the suit in view of section 75 and 127 of the Rajasthan Cooperative Societies Act. It was also urged that the appellant filed counter claim but it was not taken into consideration. In respect of findings of the appellate court below it was contended that it had fallen into serious error of law in rejecting the application of the appellant made under Order 41 Rule 27 CPC. Both the courts below also committed error of law in not framing the issues and points for determination. Reliance was placed on Radha Kishan vs. Shridhar (1), Sarada vs. M. K. Rajendran (2), Sunil Kumar vs. Kishan (3), Jawajee Nagnathan vs. Revenue Divisional Officer (4), J. D. A. vs. Kailashwati Devi (5) and Radhamoni vs. T. Jaganathan At the outset I deem it appropriate to refer the advise of caution indicated by their Lordships of the Supreme Court in Kondiba Dagadu Kadam vs. Savitri Bai Sopan Gujar (7), in regard to scope of second appeal. It was observed in para 1 thus- "despite amendment by the Amending Act No. 104 of 1976, section 100 of the Code of Civil Procedure appears to have been liberally construed and generously applied by some Judges of various High Courts with the result that the drastic changes made in the law and the object behind that appears to have been frustrated. The Amending Act was introduced on the basis of various Law Commission Reports recommending for making appropriate provisions in the Code of Civil Procedure which were intended to minimise the litigation, to give the litigant fair trial in accordance with the accepted principles of natural justice, to expedite the disposal of civil suits and proceedings so that justice is not delayed, to avoid complicated procedure, to ensure fair deal to the poor sections of the community and restrict the sector appeals only to such question which are certified by the courts to be substantial question of law. " In para 6 of the judgment it was held that- ". . . Where the 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 substantial question of law in second appeal. " Undeniably the age of present litigation is 14 years. Five and half years were wasted in seeking time to file written statement. Witnesses of plaintiff-respondent were not cross- examined and the appellant did not adduce evidence. Despite the `zero participation' by the defendant appellant the case was prolonged for such a long time. Learned trial judge did his best to comply with the order of the High Court but the witnesses did not turn up. Ultimately the High Court permitted the trial court to dispose off the case. In my considered opinion the appellant cannot be permitted to raise those points of law which he did not choose to plead. A bare look of provisions contained in Order 8 Rule 6 A of the Code of Civil Procedure demonstrates that the defendant can be permitted to plead the counter claim in the written statement itself and when the defendant does not choose to file written statement how can be allowed to place on record the counter claim? I am also of the view that in absence of the specific pleadings in the written statement application by the defendant in the appellate court under Order 41 Rule 27 CPC is not maintainable. It is not within the domain of the High Court under Section 100 CPC to investigate the grounds on which the findings were arrived at by the courts below. As appellant can not raise those questions which he did not plead, I do not propose to discuss the case law cited by the learned counsel for the appellant. I am satisfied that no substantial question of law arises in the instant appeal. Resultantly, the appeal stands dismissed summarily. . ;