This second appeal is focussed by the defendant, animadverting upon the judgement and decree dated 23.2.2007 passed in A.S.No.93 of 2005 by the Principal District Judge(i.c), Salem, confirming the judgement and decree dated 29.6.2005 passed by the Sub Judge, Attur, in O.S.No.203 of 2003, which was filed for specific performance.
2. The defendant entered appearance and filed written statement, setting out various pleas inter alia to the effect that the said agreement to sell emerged only as a security for the repayment of loan and the sale price found set out in the agreement to sale is abysmally low., etc.
(b) The trial Court framed the relevant issues. During trial, the plaintiff examined himself as P.W.1 apart from examining one Arumugam as P.W.2 and Ex.A1 to A.3 were marked. The defendant examined himself as D.W.1 and also examined one Eswaran as D.W.2. and Ex.B1 was marked.
(c) Ultimately, the trial Court decreed the suit and as against which, A.S.No.93 of 2005 was filed for nothing but to be dismissed by the first appellate Court, confirming the judgement and decree of the lower Court.
3. Being disconcerted and aggrieved by the judgements and decrees of both the Courts below, this second appeal is focussed by the defendant on various grounds and also setting out the following substantial questions of law:-
(1) Whether the Ex.A1 is document of security for the loan borrowed by the defendant/appellant from the plaintiff or bona fide document of agreement of sale?
(2) Whether the decree granted by the Courts below are sustainable in the eye of law in the absence of any documentary evidence to show that the plaintiff was readily having the balance sale consideration of Rs.25,000/- by way of fulfilling his part.?
(3) In a plaint for specific performance whether it is sufficient if a person merely claims that he is ready and willing to perform his part without showing his bona fide by way of document or proof of evidence that he was having the balance sale consideration.?
(4) Whether the decree of the Courts below are sustainable?"
4. Despite printing the names concerned, none appeared.
5. A deep reading and poring over the typed set of papers, including the judgements of both the Courts below, would convey and project the facts to the effect that the plaintiff and the defendant entered into an agreement to sell, whereby the latter agreed to sell in favour of the former, the immovable properties in the schedule of the plaint. However, the defendant committed default in performing his part of the contract, which necessitated the plaintiff to file the suit. Both the Courts below thoroughly considered the plea of the defendant and held that absolutely there was no shard or shred, scintilla or pint-sized, iota or molecule extent of evidence to support the case of the defendant that in connection with the alleged loan of Rs.2,25,000/- borrowed by the defendant from the plaintiff, the borrower paid any interest, as claimed by him.
6. The first appellate Court in Paragraph 12 of the judgement even went to the extent of observing that had there been any semblance of evidence to evince and indicate that the defendant paid interest towards the alleged loan, as claimed by him, for eight months, at least there would be some probability of the Court drawing inference in favour of the plea of the defendant and in the absence of any such evidence, the first appellate Court expressed its view that the plea of defendant's cannot be countenanced and upheld.
7. The first appellate Court also, in paragraph 11 of the judgement, referred to the decision of the Honourable Apex Court reported in AIR 1997 SC 2702 (TAJ RAM V. PATTIRAM BHAGU) as well as the decision of this Court in NANJAMMAL V. PALANIYAMMAL 1993 II LAW WEEKLY 205 and held that quite antithetical to the terms and conditions, as found set out in the agreement to sell-Ex.A1-dated 22.7.2002, the defendant would not be justified in pleading that the real transaction was only a loan transaction. De hors that proposition, absolutely no evidence was placed by the defendant to substantiate his plea and in such a case, I am at a loss to understand as to how the defendant can raise his accusative finger as against the judgements of both the Courts below.
8. The proposed substantial question of law (1) is not at all referring to any question of law much less the substantial question of law, as it is only resembling with that of the issue No.2, framed by the trial Court.
9. The suggested substantial question of law (2) and (3) are relating to the readiness and willingness of the plaintiff to pay the remaining part of the sale consideration of Rs.25,000/-.
10. The preponderance of probabilities would govern the adjudication in civil cases. Here the admitted factual position was that the plaintiff parted with a huge sum of Rs.2,25,000/- even as early as on 22.7.2000 in favour of the defendant and only there was a pittance of Rs.25,000/- yet payable by the plaintiff to the defendant. The nature of the plea taken by the defendant would clearly evidence that he was not willing to execute the sale deed under one pretext or other. Put simply, believing the evidence adduced on the side of the plaintiff, the trial Court held that virtually the plea of the defendant was only a whistle for a wind and that the plaintiff was always ready and willing to pay the pittance of Rs.25,000/- and get the sale deed executed. As such, there is absolutely no substantial question of law, as found evinced in the suggested substantial questions of law ( 2) and (3).
11. At this juncture, my mind is redolent and reminiscent of the following decisions of the Honourable Supreme Court:
(i) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL, certain excerpts from its would run thus:-
"17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. . . . . . . ."
18. . . . . . It has to be kept in mind that the right of appeal is neither a natural nor an inherenth right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. . . . . .
21. . . . . However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by sufficing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or
Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta the phrase "substantial question of law' as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju(Sir Chunilal case, SCR p.557) "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."
This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:(Sir Chunilal case, SCR pp.557-58) "The proper test for determining whether a question of law raised 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 and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or call for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
23. 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 bearing 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. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law his a substantial one and involved in the case 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.(See Santosh Hazari v. Purushottam Tiwari).
24. . . .
(iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER, an excerpt from it would run thus-
9. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section in several cases, the findings of fact of the first appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this Section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal v. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR 1962 SC 1314) held that:
"The proper test for determining whether a question of law raised 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 and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
A plain reading of the above judgements would leave no doubt that unless there is substantial question of law involved in a matter, no second appeal would lie.
12. My discussion supra would connote and denote that here absolutely there is no merit in the second appeal and accordingly, the same is dismissed confirming the judgements and decrees of both the Courts below. No costs. Consequently, connected miscellaneous petition is dismissed.
Msk To
1.The Principal District Judge(FAC), I Additional District Judge, Salem.
2.The Sub Judge, Attur