This second appeal is focussed by the original plaintiffs, animadverting upon the judgement and decree dated 09.09.2008 passed in A.S.No.36 of 2006 by the Second Additional Subordinate Judge's Court at Cuddalore, confirming the judgment of the trial Court, namely, Principal District Munsif Court at Cuddalore, in O.S.No.955 of 2004. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.
2. Pithily and precisely, tersely and briefly, avoiding discursive delineation of facts in view of the case of both sides having been set out in detail in the judgments of both the Courts below, I would like to set out the germane facts thus:
The plaintiffs/second appellants herein filed the suit O.S.No.955 of 2004 seeking the following reliefs:
"1. Declaring that the notice sent by the respondents on 02.11.2004 in Na.Ka.P.Tha.Ka. No.24/72-73 is illegal and ultra vires;
2. restraining the respondents and their men and servants from taking any drastic action by way of recovery proceedings against the plaintiffs by an order of permanent injunction; and
3. directing the respondent to pay plaintiffs the cost of the suit and grant all other just and necessary reliefs."
The defendants entered appearance and filed the written statement resisting the suit.
3. During trial, on the side of the plaintiffs, the second plaintiff, S.Jayashankar was examined as P.W.1 and Exs.A1 to A9 were marked. On the side of the defendants, C.S.Natarajan was examined as D.W.1 and no exhibit was marked.
4. Ultimately, the trial Court dismissed the suit, as against which the first appeal was filed, for nothing but to be dismissed by the First Appellate Court, confirming the judgment of the trial Court. Being disconcerted and aggrieved by the judgment of both the Courts below, this Second Appeal has been filed on various grounds set out in the memorandum of appeal and also suggesting the following proposed substantial questions of law:
"(a) In the absence of failure to follow the Rules 5 and 21 of the Tamil Nadu Toddy and Arrack Shops (Disposal in auction) Rules 1981, whether the respondents/defendants' claim is maintainable under law?
(b) Have the courts below erred in having found that the claim made by the respondents/defendants against the appellants is not barred by limitation?
(c) When the first demand as against the appellants was made only on 06.08.2003 can there be any liability against them for the payment of interest prior to the said date and particularly when the appellants have paid the principal amount as demanded by the respondents/ defendants?
(d) The present suit in O.S.No.955 of 2004 on the file of the Principal District Munsif Court at Cuddalore is barred by res judicata?"
5. Despite printing the names concerned, none appeared.
6. A plain perusal of and poring over, the typed set of papers including the certified copies of judgments of both the Courts below would display and demonstrate, exemplify and evince that the plaintiffs suppressing the material facts filed the suit as though the earlier suit O.S.No.499 of 1999 filed by the plaintiffs' mother Hemamalini in the District Munsif Court, Cuddalore was decreed in her favour, restraining the officials from proceedings against the recovery of arrears due payable by deceased Selvaraj, in view of the fact that Selvaraj sold away his property during his life time.
7. A reading of the judgment of the trial Court would leave no doubt in the mind of the Court that the judgment in the said suit O.S.No.499 of 1999 was to the effect that the defendants' Government Officials could proceed as against the property of the Selvaraj, as the said Selvaraj died leaving behind his immovable property to be inherited by his legal heirs and obviously the plaintiffs are the sons of deceased Selvaraj. As such, absolutely there is no iota or shred, shard or molecular, miniscule or scintilla of evidence to highlight and spotlight the fact that the plaintiffs have not inherited the properties of Selvaraj. In fact, in the previous suit the direction of the Court was to the effect that the officials should issue notice to the plaintiffs herein, so as to recover the dues and accordingly, the defendants have resorted to such a measure. Both the Courts below understood the real purport of the dispute and held that the plaintiffs' contentions are untenable.
8. The proposed substantial question of law (a) is based on Rules 5 and 21 of the Tamil Nadu Toddy and Arrack Shops (Disposal in auction) Rules 1981. I am at a loss to understand as to how all in a sudden, for the first time in the Second Appeal such a plea be raised. A bare perusal of Rules 5 and 21 of the said Rules would reveal that they are having no application in the facts and circumstances of this case and they are extracted here under for ready reference:
"5. Notice of auction.- Where it is proposed to grant the privilege of retail sale of liquor, a notice of the auction to be conducted shall be published by the Collector ten days in advance of the date of auction in the District Gazette and in such other manner as the Collector may deem fit.
21. Resale of shop.- (1) On the failure of any person to make a deposit of apply for a licence or to comply with any requisition or to execute any bond, deed of agreement under these rules the shop my be resold under the orders of the Collector or, on a report from the Assistant Commissioner, the Sale Officer, the Collector may otherwise dispose of the shop. Resales under this rule shall be at the risk of the defaulting bidder, who shall forfeit all gain, if any, that may secure by the resale and in the event of a loss by resale, the defaulting bidder shall be required to make good the deficiency between the total amount payable for the whole period under the terms of the original sale and by the total amount payable by the successful bidder at the resale. In the latter case, the deposits already made by defaulting bidder, excluding the amount of earnest money deposit, if any, forfeited to the State Government under rule 15 shall be forfeited and deducted from the loss arising from the resale, and the balance of the loss, if any, shall be recoverable in the same manner as if it were an arrear of land revenue. Should, however, the deposits be greater than the loss by resale, only such part of the deposits as is necessary to cover loss by resale shall be forfeited and the balance refunded to the defaulter. The defaulting bidder shall be similarly liable if the shop is disposed of otherwise than by resale and such disposal results in loss to the State Government as compared with the original sale. ..."
9. In para No.2 of the plaint, the plaintiffs categorically stated that their father Selvaraj was the successful bidder in the auction sale proceedings relating to the Toddy shop concerned for the period 1972 - 1973 and he could not pay the dues because of heavy loss incurred in running the Toddy shop. Quite antithetical to such a version found in the said paragraph 2 of the plaint, in the substantial question of law No.2 the plaintiffs have chosen to aver under para No.5 some other facts. The licencee is bound to pay the dues regularly. When such is the obvious and axiomatic legal position, any plea to the contrary in the memorandum of grounds second appeal is untenable and consequently, the attempt to invoke Rules 5 and 21 of the said Rules is out of context and baseless. As such the proposed substantial question of law (a) is a misconceived one.
10. The proposed substantial question of law (b) is relating to limitation. The trial Court as well as the First Appellate Court correctly adverting to the provisions of law held that there is no limitation for the Excise authority to recover the dues in the way known to law. Absolutely no provision of law has been quoted by the plaintiffs as to how the claim of the plaintiffs is barred by limitation. As such, the proposed substantial question of law (b) is a misconceived one.
11. The proposed substantial question of law (c) is once again a misconceived one as there is no limitation for recovering the dues. The interest also could be recovered. I could see no rhyme or reason on the part of the second appellants in contending that inasmuch as they paid the principal amount as demanded by the respondents, they are not liable to pay interest. Such a plea is nothing but legerdemain, hovering near sophistry and casuistry, in addition to it being fraught with gobbledegook, recondite, esoteric and abstruse statements and utterances, and as such, it cannot be taken as a substantial question of law.
12. By way of worsening the very Second Appeal, the plaintiffs/second appellants have gone to the extent of suggesting substantial question of (d) as though their own suit is barred of res judicata. I am at a loss to understand as to how the plaintiffs themselves who filed the subsequent suit could say that their suit is barred by res judicata and that demonstrates and bespeaks as to how in a most cavalier fashion without attaching importance to the Second Appeal, the same has been filed.
13. At this juncture, my mind is redolent and reminiscent of the following decision of the Hon'ble Apex Court reported in (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL, certain excerpts from it would run thus:
(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) One other decision of the Hon'ble Apex Court could also be cited as under:
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."
It is therefore crystal clear that there should be substantial question of law for entertaining the second appeal. Here, my discussion supra would evince and spotlight that absolutely there is no question of law, much less substantial question of law is involved in this matter. Accordingly, the Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
gms To
1. Second Additional Subordinate Judge's Court at Cuddalore
2. Principal District Munsif Court at Cuddalore