1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants-
original plaintiffs to quash and set aside the impugned judgment and decree passed by the learned trial Court-learned 2nd Joint Civil Judge (Senior Division), Himatnagar in Regular Civil Suit No. 123/1997 as well as the learned appellate Court- learned Additional District Judge Sabarkantha at Himatnagar dated 27/02/2009 in Regular Civil Appeal Nos. 6/1999 by which the learned appellate Court has allowed the said appeal preferred by the respondent by quashing and setting aside the judgment and decree passed by the learned trial Court in Regular Civil Suit No. 123/1997.
2. The facts leading to the present Second Appeal in nutshell are as under;
2.1. The appellants-original plaintiffs preferred Regular Civil Suit No. 123/1997 before the learned trial Court-learned 2nd Joint Civil Judge (Senior Division), Himatnagar against the respondent for recovery of Rs. 49,301/-. It appears that the respondent also filed counter Regular Civil Suit No. 124/1997 against the appellants to recover an amount of Rs. 47,000/-. The learned trial Court consolidated both the suits and by common judgment and decree dated 31/12/1998 allowed Regular Civil Suit No. 123/1997 preferred by the appellants and decreed the suit directing the respondent-original defendant of Regular Civil Suit No. 123/1997 to pay a sum of Rs. 49,301/- with running interest at the rate of 18% per annum from the date of filing of the suit till realization of the decretal amount and dismissed the counter Regular Civil Suit No. 124/1997 filed by the respondent. Being aggrieved and dissatisfied with the impugned common judgment and decree passed by the learned trial Court the respondent preferred Regular Civil Appeal Nos. 6/1999 as well as 28/1999 and the learned appellate Court vide impugned judgment and order dated 27/02/2009 has allowed both the appeals by quashing and setting aside the judgment and decree passed by the learned trial Court in Regular Civil Suit No. 123/1997 decreeing the suit in favour of the appellants. The learned appellate Court partly allowed Regular Civil Appeal No. 28/1999 quashing and setting aside the judgment and decree passed by the learned trial Court in Regular Civil Suit No. 124/1997 by directing the appellants to pay Rs. 30,320/- to the respondent-original plaintiff with interest at the rate of 6% per annum. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Court in Regular Civil Appeal No. 6/1999, which was arising out of Regular Civil Suit No. 123/1997 (Regular Civil Suit No. 1/1997 (New No.)) the appellants-original plaintiffs have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3. At the outset, it is required to be noted that as such both the parties filed the cross suits. The appellants-original plaintiffs preferred Regular Civil Suit No. 123/1997 for recovery of Rs. 49,301/- from the respondent and respondent no. 1 preferred counter suit, being Regular Civil Suit No. 124/1997 for recovery of Rs. 47,000/-. The learned trial Court decreed Regular Civil Suit No. 123/1997 preferred by the appellants and dismissed the counter suit preferred by the respondent being Regular Civil Suit No.124/1997. The learned appellate Court has reversed the judgment and decree passed by the learned trial Court and has quashed and set aside the judgment and decree passed by the learned trial Court in Regular Civil Suit No. 123/1997 and has allowed Regular Civil Suit No. 124/1997 dismissing the same and consequently partly decreed the suit holding that respondent no. 1-original plaintiff of Regular Civil Suit No. 124/1997 is entitled to recover a sum of Rs. 30,320/- from the appellants. It is required to be noted that as such the appellants have preferred a Second appeal against the judgment and order passed by the learned appellate Court in Regular Civil Appeal No. 28/1999 allowing the same quashing and setting aside the judgment and decree passed by the learned trial Court in Regular Civil Suit No. 124/1997 dismissing the same and consequently partly decreeing the suit, which has been dismissed by this Court on the ground of delay. Under the circumstances, when the said appeal is dismissed and consequently the judgment and order passed by the learned appellate Court in Regular Civil Suit No. 28/1999 is confirmed as such the present Second Appeal deserves to be dismissed. Even otherwise, considering the impugned judgment and order passed by the learned appellate Court, it cannot be said that the learned appellate Court has committed any error and/or illegality in allowing Regular Civil Appeal No. 6/1999 and quashing and setting aside the judgment and decree passed by the learned trial Court in Regular Civil Suit No. 123/1997. The finding given by the learned appellate Court is on appreciation of evidence, which is neither perverse nor contrary to the evidence on record. As such, the learned advocate appearing on behalf of the respondent is not in a position to point out any substantial question of law, which arises in the present Second Appeal. Under the circumstances, it cannot be disputed that unless and until any substantial question of law arises, the Second Appeal under Section 100 of the Code of Civil Procedure is not required to be entertained.
4. In view of the above, the present Second Appeal deserves to be dismissed and is accordingly dismissed.
CIVIL APPLICATION No. 3642/2012 In view of dismissal of the Second Appeal, the Civil Application deserves to be dismissed and is accordingly dismissed.
(M.R. SHAH, J.)
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