1. The present Second Appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellant herein – original defendant No.1 to quash and set aside the impugned judgement and decree dated 30/07/2011 passed by learned Principal Senior Civil Judge, Bhuj-Kachchh in Regular Civil Suit No.354 of 2009 as well as impugned judgement and order dated 14/02/2012 passed by learned 3rd Additional District Judge, Kachchh at Bhuj in Regular Civil Appeal No.14 of 2011, by which, learned Appellate Court has dismissed the said appeal confirming the judgement and decree passed by the learned Trial Court.
2. That the respondent herein – original plaintiff instituted Regular Civil Suit No.354 of 2009 against the appellant herein – original defendant No.1 and another in the court of learned Principal Senior Civil Judge, Kachchh at Bhuj for declaration and permanent injunction to declare that the plaintiff is not legally wedded wife of defendant No.1 and defendant No.1 is not legally wedded husband of the plaintiff and for declaration that Marriage Certificate issued by defendant No.2 is null and void. Permanent injunction was also sought against defendant No.1 restraining defendant No.1 from using the marriage certificate issued by defendant No.2 permanently.
3. It was the case on behalf of the plaintiff that when she was working in Company, she came in the contact of defendant No.1 and defendant No.1 gave her the assurance to give better job to the plaintiff and in the year 2009, the defendant No.1 had taken original school leaving certificate, xerox copy of driving licence and one photograph. It was the case on behalf of the plaintiff that defendant No.1 had taken signature of the plaintiff on the blank form and other papers. It was the case on behalf of the plaintiff that by misusing the papers, defendant No.1 had got the marriage registered before defendant No.2 on 19/03/2009. It was the case on behalf of the plaintiff that defendant No.1 produced forged certificate dated 17/03/2009 of Himmatbhai Pravinbhai Gor (Prist) and produced the same before Registrar and had obtained the false marriage certificate. It was the case on behalf of the plaintiff that marriage registration certificate entered in the marriage register at Sr.No.1043 of Part-3 was false and illegal. It was also case on behalf of the plaintiff that the plaintiff had not solemnized the marriage with defendant No.1 as per Hindu rites and customs at Trambkeshwar Mahadev Mandir, Airport Road, Bhuj-Kachchh. It was the case on behalf of the plaintiff that her marriage with defendant No.1 was not solemnized through Himmatbhai Gor and Bharat Kakubhai Thackker and Ramju Ibrahim Kumbhar were not the witnesses of the marriage.
That the said suit was resisted by the appellant herein – original defendant No.1 by filing written statement at Exh.15 and denied the averments made by the plaintiff in the plaint and prayed to dismiss the Suit. It was the case on behalf of defendant No.1 that the plaintiff and defendant No.1 had married with each other and their marriage was solemnized as per Hindu rites and customs and marriage has taken place at Trambkeshwar Mahadev Mandir at Kachchh-Bhuj in presence of the friend circle and family members of the defendant No.1. Learned Trial Court framed issues at Exh-24.
That thereafter, the parties led evidence orally as well as documentary. On behalf of the plaintiff, the plaintiff herself was examined at Exh-26 and her father was examined at Exh-42 and documents produced by the plaintiff were exhibited at Exh-28 to 40. On behalf of the defendants, defendant No.1 himself was examined at Exh.49. No other documentary evidence was led by defendant No.1. On appreciation of evidence and after giving an opportunity to both the sides, learned Trial Court decreed the suit by judgement and decree dated 30/07/2011 and learned Trial Court granted declaration as prayed for and also issued permanent injunction as prayed for.
4. Feeling aggrieved by and dissatisfied with the judgement and decree passed by the learned Trial Court decreeing the suit, the appellant herein – original defendant No.1 preferred Regular Civil Appeal No.14/2011 before learned District Court, Kachchh at Bhuj and learned 3rd Additional District Judge, Kachchh at Bhuj by impugned judgement and order dated 14/02/2012 has dismissed the said appeal confirming the judgement and decree passed by the learned Trial Court decreeing the suit.
Feeling aggrieved by and dissatisfied with the judgement and orders passed by both the Courts below, the appellant herein – original defendant No.1 has preferred the present Second Appeal u/s.100 of the Code of Civil Procedure.
5. Mr.E.E.Saiyed, learned advocate appearing on behalf of the appellant herein – original defendant No.1 has vehemently submitted that both the Courts below have materially erred in holding that there was no valid marriage between the plaintiff and defendant No.1 and the marriage was not performed/ solemnized as per Hindu rites and customs. It is submitted that in fact the marriage form was signed by the Prist, which has not been properly appreciated by both the Courts below. Therefore, it is requested to allow the present second appeal.
6. The present second appeal is opposed by Mr.B.Y.Mankad, learned advocate appearing on behalf of respondent No.1 herein – original plaintiff. It is submitted that as such there are concurrent findings of facts given by both the Courts below holding that there is no valid marriage between the plaintiff and defendant No.1. That plaintiff and defendant No.1 are not legally wedded husband and wife. The findings of facts given by both the Courts below are on appreciation of evidence, which are not required to be interfered with by this Court in second appeal unless and until it is found that findings given by the Courts below are perverse and/or contrary to the evidence on record. No substantial question of law arise in the present Second Appeal and, therefore, it is requested to dismiss the present Second Appeal.
7. Heard learned advocates appearing on behalf of the respective parties at length and gone through the judgement and orders passed by both the Courts below decreeing the suit.
8. At the outset, it is required to be noted that as such both the Courts below have given concurrent finding of fact that there is no valid marriage between the plaintiff and defendant No.1 and there was no marriage between the plaintiff and defendant No.1 solemnized as per Hindu rites and customs and the marriage certificate was obtained by fraud and misrepresentation. It is required to be noted that the aforesaid findings of facts are on appreciation of evidence. It is not the case on behalf of the appellant that the findings of facts given by both the Courts below are perverse and contrary to the evidence on record. It is required to be noted that the present second appeal is u/s.100 of the Code of Civil Procedure and unless and until any substantial question of law arises for determination in the present second appeal, the same is not required to be entertained by this Court. Learned advocate appearing on behalf of the appellant has failed to point out any substantial question of law arising in the present second appeal. Under the circumstances, the present Second Appeal is not required to be entertained.
9. In view of the above and for the reasons stated hereinabove, there is no substance in the present second appeal and the same deserves to be dismissed and is accordingly dismissed. No costs.
[M.R.SHAH,J] *dipti