Present appeal has been filed against the judgement and decree dated 23.07.2014 passed by Additional District Judge, Court No. 9, Bulandshahar in Civil Appeal No. 249/2011 thereby setting aside the judgement and decree dated 07.08.2011 passed by trial court in Original Suit No. 133 of 2009.
Learned counsel for appellant has pressed the present appeal on the following substantial question of law:-
"a) Whether the lower appellate court was justified in misconstructing the Amin report regarding the damages to the mango garden wherein the brick kiln was not started.
b) Whether the lower appellate court was justified in allowing the appeal on no evidence regarding the damages caused to the plaintiff."
I have heard learned counsel for appellant and gone through the record.
Plaintiff-respondent has filed a suit for permanent injunction thereby restraining the defendants to cause damages to the mango garden by running brick kiln, registered as Regular Suit No. 133 of 2005 (Narendra Kumar and others Vs. Gokal and others). On the basis of documentary evidence, the trial court by judgement and decree dated 17.08.2011 has dismissed the suit.
Aggrieved by the same, the plaintiff file an appeal (Civil Appeal No. 249/2011 ( (Narendra Kumar and others Vs. Gokal and others), by means of the judgment and decree dated 23.07.2014, the appellate Court/Additional District Judge, Court No. 9, Bulandshahar has allowed the appeal and restrained the appellant-defendant to operate the brick kiln without obtaining a licnece from Zila Parishad and No Objection Certificate from Air Pollution Control Board/State Pollution Control Board.
Further, from the perusal of the appellate court judgement, the position which emerged out that the appellate court after taking into consideration the finding recorded by the trial court as well as the material on record while recording the finding given by trial court while dismissing the suit had given a finding that the appellants have neither obtained any licnece from Zila Parishad nor have obtained permission/No Objection Certificate from Central Pollution Control Board/State Pollution Control Board to operate brick kiln and also recorded a finding that the mango garden is within the radius of 2 k.m. of the place where the brick kiln is situated, so due to operation of the same, the trees standing on the Bagan are affected from the Gas which comes out from brick kiln, namely, Carbon Monoxide, Ethiline and Sulfer-dioxide etc., as such, the operation of the brick kiln by the appellant is in contravention to the law as laid down by this Court in the cases of Raghunandan Saran Vs. Smt. Kanta Devi, AIR 1975 Allahabad 130 and M/S Ganga Brick Udhyog and others Vs. Jai Bhagwan Swaroop, AIR 1982 Allahabad 333.
It is late in a day to quarrel that for the purpose of operating brick kiln, the necessary permission is to be taken from the Zila Parishad as well as permission/No Objection Certificate is to be taken from Central Pollution Control Board/State Pollution Control Board as per the law which governs the field but the same has not been done in the present case.
Thus keeping in view the said facts as well as the arguments advanced by learned counsel for the appellant in regard to the substantial question of law as mentioned herein, has got no force rather they are not substantial question of law in the instant case in view of the law as laid down in the case of Gurdev Kaur & Ors. v. Kaki & Ors. 2006 (4) SBR 371, the Hon'ble Apex Court, relevant portion quoted hereinbelow "The Privy Council, in Luchman v. Puna [(1889) 16 Calcutta 753 (P.C.)], observed that a second appeal can lie only on one or the other grounds specified in the present section."
The Privy Council, in another case Pratap Chunder v. Mohandranath [(1890) ILR 17 Calcutta 291 (P.C.)], the limitation as to the power of the court imposed by sections 100 and 101 in a second appeal ought to be attended to, and an appellant ought not to be allowed to question the finding of the first appellate court upon a matter of fact."
In Durga Chowdharani v. Jawahar Singh (1891) 18 Cal 23 (PC), the Privy Council held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may seem to be. The clear declaration of law was made in the said judgment as early as in 1891. This judgment was followed in the case of Ramratan Shukul v. Mussumat Nandu (1892) 19 Cal 249 (252) (PC) and many others. The Court observed :
"It has now been conclusively settled that the third court...cannot entertain an appeal upon question as to the soundness of findings of fact by the second court, if there is evidence to be considered, the decision of the second court, however unsatisfactory it might be if examined, must stand final."
In the case of Ram Gopal v. Shakshaton [(1893) ILR 20 Calcutta 93 (P.C.)], the Court emphasized that a court of second appeal is not competent to entertain questions as to the soundness of a finding of facts by the court below.
The same principle has been reiterated in Rudra Prasad v. Baij Nath [(1893) ILR 15 Allahabad 367]. The Court observed that a judge to whom a memorandum of second appeal is presented for admission is entitled to consider whether any of the grounds specified in this section exist and apply to the case, and if they do not, to reject the appeal summarily.
Similarly, before amendment in 1976, this Court also had an occasion to examine the scope of Section 100 C.P.C.. In Deity Pattabhiramaswamy v. S. Hanymayya and Others [AIR 1959 SC 57], the High Court of Madras set aside the findings of the District Judge, Guntur, while deciding the second appeal. This Court observed that notwithstanding the clear and authoritative pronouncement of the Privy Council on the limits and the scope of the High Court's jurisdiction under section 100, Civil Procedure Code, "some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under Section 100, Civil Procedure Code. We have, therefore, no alternative but to set aside the judgment of the High Court which had no jurisdiction to interfere in second appeal with the findings of fact arrived at by the first appellate Court based upon an appreciation of the relevant evidence.
In M. Ramappa v. M. Bojjappa [(1963) SCR 673], the Andhra Pradesh High Court interfered with the finding recorded by the Appellate Court which, in turn, had itself reversed the Trial Court's finding on the same question of fact. While setting aside the decree of the second Appellate Court, this Court observed :
"It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact, but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid."
It may be pertinent to mention that as early as in 1890 the Judicial Committee of the Privy Council stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add, or enlarge, the grounds specified in Section 100 of the Code of Civil Procedure.
The findings reached by the First Appellate Court cannot be interfered with, in second appeal, as no substantial question of law would have flowed out of such a finding. As Lord Hastings observed that "The facility of appeal is founded on a most laudable principle of securing, by double and treble checks, the proper decision of all suits, but the utopian idea, in its attempt to prevent individual injury from a wrong decision, has been productive of general injustice by withholding redress, and general inconvenience, by perpetuating litigation".
In Sir Chunnilal V. Mehta & & Sons Ltd. Vs. Century Spinning and Manufacturing Co. Ltd., reported in A.I.R. 1962 S.C., 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 Vs. Puran Indoria, reported in (2005) 7 S.C.C., 60, 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-quanon 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 Vs. Ramendra Narayan Roy & Ors., reported in A.I.R. 1947 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 Vs. Commissioner of Income Tax, New Delhi, reported in (2011) 1 S.C.C. 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 Vs. Ibrahim & Another in Civil Appeal No.1374 of 2008, decided on July 17, 2012, 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 CPC. 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."
For the foregoing reasons, after a careful consideration of arguments of the learned counsel for the appellant, I do not find any error of law in the conclusions recorded by the appellate court while passing the judgement, so no substantial question of law arises in the instant appeal. The judgement under challenge cannot be interfered in this appeal in exercise of jurisdiction under Section 100 CPC. The second appeal fails and is dismissed.
Order Date :- 26.8.2014 Ravi/-