CIVIL PROCEDURE CODE AND LIMITATION ACT

NDMC vs Satish Chand

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Petitioner: N.D.M.C.
Respondent: Satish Chand (Deceased)

Head Note:
CIVIL PROCEDURE/PROPERTY TAX LAWS
Code of Civil Procedure, 1908
Section 9 – Punjab Municipal Act, 1911 – Sections 84 and 86 – Civil suits –
Bar of – When the right of a person to file a civil suit is not available –
Assessment and collection of property tax under the Punjab Act – Said Act
providing for appeal against taxation – Act also specifically providing that
taxation is not to be questioned in any manner except as provided in the
said Act itself – Whether it is open to a person to file a civil suit against
property taxation. Held since the provision of appeal contained in the
Punjab Act provided a complete remedy to a party aggrieved against the
assessment and levy of property tax and also in view of the express bar
provided in section 9 of CPC, civil suit against property taxation is not
maintainable.

Held:
It will be noticed from the provisions contained in section 9 of the Code of
Civil Procedure that a bar to file a civil suit may be express or implied. An
express bar is where a Statute itself contains a provision that the
jurisdiction of a civil court is barred e.g., the bar contained in section 293 of
the Income Tax Act, 1961. An implied bar may arise when a statute provide
a special remedy to an aggrieved party like a right of appeal as contained
in the Punjab Municipal Act which is the subject matter of the present case.
Section 86 of the Act restrains a party from challenging assessment and
levy of tax in any manner other than as provided under the Act. A provision
like this is the implied bar envisaged in section 9 C.P.C. against filing a civil
suit. (Para 6)
A Division Bench of the Delhi High Court in Sobha Singh & sons (P) Ltd. v.
New Delhi Municipal Committee (34 (1988) Delhi Law Times 91) had an
occasion to consider the question of maintainability of a civil suit
challenging the assessment and levy of property tax by the NDMC.
Sections 84 and 86 of the Act came in for consideration. It was held that
the provision of appeal contained in section 84(1) of the Act provided a
complete remedy to a party aggrieved against the assessment and levy of
tax. Section 86 provides that the remedy of appeal is the only remedy to a
party to challenge assessment for purposes of property tax. No other
remedy was available to a party in such circumstances. It follows that the
remedy of civil suit is barred. (Para 8)
In view of the aforesaid position in law, we are of the considered view that
the civil suit filed by respondent challenging the assessment and demand
of property tax by the appellant was clearly barred. (Para 9)
JUDGEMENT:
Arun Kumar, J.

1. The question for consideration in this appeal is regarding

maintainability of a civil suit to challenge assessment and levy of
property tax on a property owned by respondent. Respondent owns a
basement in property no.33, Prithvi Raj Road, New Delhi. The
appellant is a statutory body responsible for discharging civic
functions in specified areas in the city of Delhi. To generate revenue
for itself the appellant is authorized to levy taxes including property
tax. The said property was assessed to property tax by the appellant.
According to respondent the basement cannot be put to use because
it gets filled up with sub-soil water. For this reason the respondent
claimed that the basement could not be said to be having any annual
rateable value and therefore it could not be assessed to property tax
and no tax could be levied. Inspite of this, the appellant assessed the
said property to property tax. It was further alleged by the respondent
that objections filed by him against the assessment of the said
property to property tax had been rejected by the appellant and a
notice of demand had been sent regarding arrears of property tax.
This demand included arrears for certain earlier period even though
the same had been stayed by civil court in separate proceedings.
Respondent filed a suit for permanent injunction stating that the
action of the appellant in assessment of the said property to property
tax and demanding arrears of tax amounting to Rs.4,293.35 (rupees
four thousand two hundred ninety-three and paise thirty five) on this
account was illegal and without jurisdiction. He made a prayer for a
permanent injunction restraining the appellant from recovering the
said amount.
2. The appellant took a preliminary objection against the maintainability
of the said suit. The objection is based on sections 84 and 86 of the
Punjab Municipal Act, 1911 (hereinafter referred to as “the Act”). The
NDMC at the relevant time was constituted under the said Act and
assessment and levy of property tax was a function carried on by
NDMC in accordance with the provision of the said Act. Sections 84
and 86 of the said Act are reproduced as under:
“84. Appeals against taxation-(1) An appeal against the assessment
or levy of any or against the refusal to refund any tax under this Act
 shall lie to the Deputy Commissioner or to such other officer as may
be empowered by the State government in this behalf:
Provided that, when the Deputy Commissioner or such other officer
as aforesaid, is, or was when the tax was imposed, a member of the
committee, the appeal shall lie to the Commissioner of the division.
(2) If, on the hearing of an appeal under the section, any question as
to the liability to, or the principle of assessment of, a tax arises, on
which the officer hearing the appeal entertains reasonable doubt, he
may, either of his own motion or on the application of any person
interested, draw up a statement of the facts of the case and the point
on which doubt is entertained, and refer the statement with his own
opinion on the point for the decision of the High Court.
(3) On a reference being made under sub-section (2), the
subsequent proceedings in this case shall be, as nearly as may be, in
conformity with the rules relating to references to the High Court
contained in section 113 and Order XLVI of the Code of Civil
Procedure.
(4) In every appeal the costs shall be in the discretion of the officer
deciding the appeal.
(5) Costs awarded under this section to the committee shall be
recoverable by the committee as though they were arrears of a tax
due from the appellant.
(6) If the committee fails to pay any costs awarded to an appellant
within ten days after the date of the order for payment thereof, the
officer awarding the costs may order the person having the custody
of the balance of the municipal fund to pay the amount.
86. Taxation not to be questioned except under this Act-(1) No
objection shall be taken to any valuation or assessment, nor shall the
liability of any person to be assessed or taxed be questioned, in any
other manner or by any other authority than is provided in this Act.
(2) No refund of any tax shall be claimable by any person otherwis e
than in accordance with the provisions of this Act and the rules
thereunder.”
3. Section 84 contains a provision regarding appeals against
assessment and levy of taxes which means that a remedy of a
statutory appeal is provided to a party aggrieved of asses sment and
levy of tax under the Act. When a statute provides a remedy of
appeal it is a remedy governed by the statute and has to be
exercised strictly in accordance with the statutory provisions. Section
86 contains a bar against challenge to any valuation or assessment
for purposes of tax including property tax except in accordance with
remedy contained in the Act itself. Section 86 further debars any
person from questioning the liability towards tax based on
assessment by the authorities under the Act by any manner other
 than what is provided in the Act itself. Thus section 86 of the Act
contains a total bar against availing any remedy against assessment
and or levy of tax except as per the provision of the Act itself. On the
basis of these provisions contained in the Act it was pleaded on
behalf of the appellant that the suit was not maintainable and was
therefore liable to dismissed. The trial court upheld the objection
regarding maintainability of the suit and the suit was accordingly
dismissed. However, appeal against said judgment was allowed by
the senior civil judge. On the question of maintainability of the suit,
the lower appellate court by distinguishing the relevant judicial
pronouncements on the issue, came to a conclusion that the suit was
maintainable. The High Court dismissed the second appeal in limine.
This has led to filing of the present appeal.
4. We have heard the learned counsel for the parties at length. In our
view the legal position on the question of maintainability of civil suits
in such matters is fairly well settled. Section 9 of the Code of Civil
Procedure contains a provision regarding right of a party to file a civil
suit. The same is reproduced as under:
“9. Courts to try all civil suits unless barred- The courts shall (subject
to the provisions herein contained) have jurisdiction to try all suits of
a civil nature excepting suits of which their cognizance is either
expressly or impliedly barred.
Explanation I – A suit in which the right to property or to an office is
contested is a suit of a civil nature, notwithstanding that such right
may depend entirely on the decision of questions as to religious rites
or ceremonies.
Explanation II – For the purposes of this section, it is immaterial
whether or not any fees are attached to the office referred to in
Explanation I or whether or not such office is attached to a particular
place.”
5. The opening words of the section give a very wide jurisdiction to the
civil courts to try all suits of a civil nature however, this wide power is
qualified by providing an exception i.e. “excepting suits of which their
cognizance is either expressly or impliedly barred.” Dhulabhai etc. v.
State of Madhya Pradesh & Others1 is a celebrated judgment on the
point which still holds the field. It lays down the following principles:
“(1) Where the statute gives a finality to the orders of the special
tribunals the civil courts’ jurisdiction must be held to be excluded if
there is adequate remedy to do what the civil court would normally do
in a suit. Such provision, however, does not exclude those cases
where the provisions of the particular Act have not been complied
with or the statutory tribunal has not acted in conformity with the
fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an
 examination of the scheme of the particular Act to find the adequacy
or the sufficiency of the remedies provided may be relevant but is not
decisive to sustain the jurisdiction of the civil court. Where there is no
express exclusion the examination of the remedies and the scheme
of the particular Act to find out the intendment becomes necessary
and the result of the inquiry may be decisive. In the latter case it is
necessary to see if the statute creates a special right or a liability and
provides for the determination of the right or liability and further lays
down that all questions about the said right and liability shall be
determined by the tribunals so constituted, and whether remedies
normally associated with actions in civil courts are prescribed by the
said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires
cannot be brought before tribunals constituted under that Act. Even
the High Court cannot go into that question on a revision or reference
from the decision of the tribunals.
(4) When a provision is already declared unconstitutional or the
constitutionality of any provision is to be challenged, a suit is open. A
writ of certiorari may include a direction for refund if the claim is
clearly within the time prescribed by the Limitation Act but it is not a
compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax
collected in excess of constitutional limits or illegally collected, a sui t
lies.
(6) Questions of the correctness of the assessment apart from its
constitutionality are for the decision of the authorities and a civil suit
does not lie if the orders of the authorities are declared to be final or
there is an express prohibition in the particular Act. In either case the
scheme of the particular Act must be examined because it is a
relevant enquiry.
(7) An exclusion of the jurisdiction of the civil court is not readily to be
inferred unless the conditions above set down apply.”
6. It will be noticed from the provisions contained in section 9 of the
Code of Civil Procedure that a bar to file a civil suit may be express
or implied. An express bar is where a Statute itself contains a
provision that the jurisdiction of a civil court is barred e.g., the bar
contained in section 293 of the Income Tax Act, 1961. An implied bar
may arise when a statute provide a special remedy to an aggrieved
party like a right of appeal as contained in the Punjab Municipal Act
which is the subject matter of the present case. Section 86 of the Act
restrains a party from challenging assessment and levy of tax in any
manner other than as provided under the Act. A provision like this is
the implied bar envisaged in section 9 C.P.C. against filing a civil suit.
In Raja Ram Kumar Bhargava (dead) by LRs v. Union of India1 this
 Court observed:
“Generally speaking, the broad guiding considerations are that
wherever a right, not pre-existing, in common-law, is created by a
statute and that statute itself provided a machinery for the
enforcement of the right, both the right and the remedy having been
created uno flatu and a finality is intended to the result of the
statutory proceedings, then, even in the absence of an exclusionary
provision the civil courts’ jurisdiction is impliedly barred. If, however, a
right pre-existing in common law is recognised by the statute and a
new statutory remedy for its enforcement provided, without expressly
excluding the civil court’s jurisdiction, then both the common-law and
the statutory remedies might become con current remedies leaving
upon an element of election to the persons of inherence. To what
extent, and on what areas and under what circumstances and
conditions, the civil courts’ jurisdiction is preserved even where there
is an express clause excluding their jurisdiction, are considered in
Dhulabhai’s case.”
7. Munshi Ram and Others v. Municipal Committee, Chheharta1 was a
case under the Punjab Municipal Act itself. The court was
considering the question of bar created under sections 84 and 86 of
the Act regarding hearing and determination of objections to levy of
provisional tax under the Act. In this connection it was observed:
“From a conjoint reading of sections 84 and 86, it is plain that the
Municipal Act, gives a special and particular remedy for the person
aggrieved by an assessment of tax under the Act, irrespective of
whether the grievance relates to the rate or quantum of tax or the
principle of assessment. The Act further provides a particular forum
and a specific mode of having this remedy which analogous to that
provided in section 66 (2) of the Indian Income-tax Act, 1922. Section
86 forbids in clear terms the person aggrieved by an assessment
from seeking his remedy in any other forum or in any other manner
than that provided in the Municipal Act.
It is well recognised that where a revenue statute provides for a
person aggrieved by an assessment thereunder, a particular remedy
to be sought in a particular forum, in a particular way, it must be
sought in that forum and in that manner, and all other forums and
modes of seeking it are excluded. Construed in the light of this
principle, it is clear that sections 84 and 86 of the Municipal Act bar,
by inevitable implication, the jurisdiction of the civil court where the
grievance of the party relates to an assessment or the principle of
assessment under this Act.”
The court upheld the objection regarding maintainability of the civil
suit.
8. A Division Bench of the Delhi High Court in Sobha Singh & Sons (P)
Ltd. v. New Delhi Municipal Committee2 had an occasion to consider
the question of maintainability of a civil suit challenging the
assessment and levy of property tax by the NDMC. Sections 84 and
86 of the Act came in for consideration. It was held that the provision
of appeal contained in section 84(1) of the Act provided a complete
remedy to a party aggrieved against the assessment and levy of tax.
Section 86 provides that the remedy of appeal is the only remedy to a
party to challenge assessment for purposes of property tax. No other
remedy was available to a party in such circumstances. It follows that
the remedy of civil suit is barred.
9. In view of the aforesaid position in law, we are of the considered
view that the civil suit filed by respondent challenging the assessment
and demand of property tax by the appellant was clearly barred. The
judgments of the lower appellate court and the High Court are,
therefore, set aside and the judgment of the trial court is hereby
restored. The civil suit filed by respondent is dismissed as not
maintainable. The appeal is allowed. There will be no order as to
costs.
UNION OF INDIA V. ADANI EXPORTS LTD.
Usha Balashaheb Swami & Ors v. Kiran Appaso
Swami & Ors (2007)

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s

Brief Facts
The plaintiff-respondent had filed a suit for partition and separate possession
of suit properties. The defendant nos. 1 to 7 who were respondents no. 2 to
8 in this appeal filed their written statement in which they supported the case
of the plaintiff. The appellants i.e. Defendant No. 8-14 filed their written
statement in which they admitted that the plaintiff with defendants No.1 to 7
was entitled to one-half share in the suit properties. Defendant No. 8-14 filed
an application for amendment of their written statement to add that the
plaintiff and defendant Nos. 2 to 7 could not acquire right, title and interest
in the joint family properties, as they were the illegitimate children of the
deceased Appasao. The plaintiff contested the application on the ground that
the appellants have admitted in their written statement that plaintiff and
defendant Nos.1 to 7 were jointly entitled to a half share of the suit
properties and hence they cannot be allowed to withdraw such admission by
amendment of the written statement. The application for amendment was
granted by Learned Civil judge, but his order was set aside by the High Court
in revision. A special leave petition was filed in the Supreme Court against
the order of the High Court.

Decision of the Supreme Court

The Hon’ble Court set aside the order of the High Court of rejecting the
application for amendment and allowed the amendment of a written
statement. The Court held that a prayer for amendment of plaint and
amendment of the written statement stands on a different footing and the
Courts have to be more liberal while dealing with the application for
amendment of a written statement. The general principle that amendment of
pleadings cannot be allowed to materially alter or substitute the cause of
action applies to plaints and not to written statements. The Court observed
that adding a new cause of action or substituting it may be objectionable in
case of plaint but adding a new ground or taking inconsistent pleas or new
defence in a written statement would not be objectionable. The Court also
held that it was not a case of withdrawing of admissions by the defendant
but only adding additional facts. By proposing amendment of written
statement appellants were not withdrawing admission but only added that
the plaintiff and defendant nos. 3 to 8 could be entitled to half a share in the
property if they proved to be the legitimate children of Appasao.

Chekka Krishna Prasad vs Kotha Appa Rao

1. Mr. Y. Venkaieswarlu, the learned Counsel for the petitioner submits that the
respondent-plaintiff has filed a suit against the petitioner who is the defendant
therein for a mere injunction claiming title over certain immovable property which
is said to be a tin-shed premises, for which, the petitioner-defendant is also claiming
title on the basis of a registered sale deed: but, the respondent-plaintiff challenges
the validity of the said sale deed in favour of the petitioner-defendant on the ground
that it is invalid in law. The Trial Court, on an application filed by the respondent-
plaintiff under Order 16 Rule 6 C.P.C. has allowed the petition to summon
admission register and T.C. from E.V. Reddy College, Kodad, which reflects the
age of the petitioner as a minor on the dale of execution of the sale deed. In this
regard, the learned Counsel for the petitioner submits that the Court has no authority
to summon a document from the custody of third party, especially public office,
without the respondent-plaintiff showing the relevancy of the particular document
for adjudication of the rights of the parties in the suit.

2. Order 16 Rule 6 C.P.C. is to the following effect :

"Summons to Produce Document : Any person may be summoned to produce a
document without being summoned to give evidence and any person summoned
 merely to produce a document shall be deemed to have complied with the summons
if he causes such document to be produced instead of attending personally to
produce the same.''

3. It must be remembered that the parlies to the suit are at liberty to adduce oral and
documentary evidence, whatsoever according to their choice in order to substantiate
their case. The question of relevancy or validity of documents, after they are
tendered in evidence, shall be considered by the Court in accordance with law.
Before a document is summoned from the custody of any office, the Court cannot
embark upon a duty to scrutinise or consider the legality or relevancy of the same
before it is actually tendered" in evidence and Order 16 Rule 6 C.P.C. does not
mandate this to the Court. Order 16 Rule 6 C.P.C. is in simple language wherein it
is slated that any person may be summoned to produce a document without being
summoned to give evidence and any person summoned merely to produce a
document shall be deemed to have complied with the summons, if he causes such
document to be produced instead of attending personally to produce the same. The
affect of this Rule is that the Court has the authority to summon any person to be
summoned to produce a document and if a document is produced or it is caused to
be produced before the Court in compliance with such summons, it is due
compliance of Order 16Rule6 C.P.C.

4. The rights of the parlies or adjudication on the issues between the parties to the suit
will be decided on consideration of all the material which is placed before the Court
and a party cannot be restrained to call for the documents, which it feels that the
said documents are relevant and necessary to substantiate its case.

5. In the above view of the matter, I do not see any illegality or jurisdictional error in
the order passed by the Trial Court. As such, this C.R.P. lacks merits.

6. Accordingly, this C.R.P. is dismissed at the admission stage.

Koppisetty Venkat Ratnam(D) ... vs Pamarti Venkayamma on 23

February, 2009

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1. This appeal is directed against the judgment dated 3.10.2007 passed by the High
Court of Andhra Pradesh at Hyderabad in Second Appeal No.865 of 1997.
2. Learned senior counsel appearing for the appellant raised a preliminary objection
that in the impugned judgment, the High Court has set-aside the concurrent findings
of facts of two courts without formulating any substantial question of law which is
mandatory according to Section 100 of the Code of Civil Procedure after 1976
Amendment.
3. There is considerable material which led to 1976 Amendment in the Code of Civil
Procedure. Legislative Background in the 54th Report of the Law Commission of
India submitted in 1973: The comprehensive 54th Report of the Law Commission
of India submitted to the Government of India in 1973 gives historical background
regarding ambit and scope of Section 100 C.P.C. According to the said report, any
rational system of administration of civil law should recognize that litigation in civil
cases should have two hearings on facts- one by the trial court and one by the court
of appeal.

4. In the 54th Report of the Law Commission of India, it is incorporated that it may be
permissible to point out that a search for absolute truth in the administration of
justice, however, laudable, must in the very nature of things be put under some
reasonable restraint. In other words, a search for truth has to be reconciled with the
doctrine of finality. In judicial hierarchy finality is absolutely important because that
gives certainty to the law. Even in the interest of litigants themselves it may not be
unreasonable to draw a line in respect of the two different categories of litigation
where procedure will say at a certain stage that questions of fact have been decided
by the lower courts and the matter should be allowed to rest where it lies without
any further appeal. This may be somewhat harsh to an individual litigant; but, in the
larger interest of the administration of justice, this view seems to us to be juristically
sound and pragmatically wise. It is in the light of this basic approach that we will
now proceed to consider some of the cases which were decided more than a century
ago.

5. The question could perhaps be asked, why the litigant who wishes to have justice
from the highest Court of the State should be denied the opportunity to do so, at least
where there is a flaw in the conclusion on facts reached by the trial court or by the
court of first appeal. The answer is obvious that even litigants have to be protected
against too persistent a pursuit of their goal of perfectly satisfactory justice. An
unqualified right of first appeal may be necessary for the satisfaction of the defeated
litigant; but a wide right of second appeal is more in the nature of a luxury.

6. The rational behind allowing a second appeal on a question of law is, that there
ought to be some tribunal having jurisdiction that will enable it to maintain, and,
where necessary, re-establish, uniformity throughout the State on important legal
issues, so that within the area of the State, the law, in so far as it is not enacted law,
should be laid down, or capable of being laid down, by one court whose rulings will
be binding on all courts, tribunals and authorities within the area over which it has
jurisdiction. This is implicit in any legal system where the higher courts have
authority to make binding decisions on questions of law.

7. It may be relevant to recall the statement of Douglas Payne on "Appeals on

Questions of Fact" reported in (1958) Current Legal Problem 181. He observed that
the real justification for appeals on questions of this sort is not so much that the law
laid down by the appeal court is likely to be superior to that laid down by a lower
court as that there should be a final rule laid down which binds all future courts and
so facilitates the prediction of the law. In such a case the individual litigants are
 sacrificed, with some justification, on the altar of law-making and must find such
consolation as they can in the monument of a leading case.

8. Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed
and narrowed down. The High Courts would have jurisdiction of interfering under
Section 100 C.P.C. only in a case where substantial questions of law are involved
and those questions have been clearly formulated in the memorandum of appeal. At
the time of admission of the second appeal, it is the bounden duty and obligation of
the High Court to formulate substantial questions of law and then only the High
Court is permitted to proceed with the case to decide those questions of law. The
language used in the amended section specifically incorporates the words as
"substantial question of law" which is indicative of the legislative intention. It must
be clearly understood that the legislative intention was very clear that legislature
never wanted second appeal to become "third trial on facts" or "one more dice in
the gamble". The effect of the amendment mainly, according to the amended
section, was:

(i) The High Court would be justified in admitting the second appeal only
when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such question;
(iii) A duty has been cast on the High Court to formulate substantial question
of law before hearing the appeal;
(iv) Another part of the Section is that the appeal shall be heard only on that
question.

9. The fact that, in a series of cases, this court was compelled to interfere was
because the true legislative intendment and scope of Section 100 C.P.C.
have neither been appreciated nor applied. A class of judges while
administering law honestly believe that, if they are satisfied that, in any
second appeal brought before them evidence has been grossly
misappreciated either by the lower appellate court or by both the courts
below, it is their duty to interfere, because they seem to feel that a decree
following upon a gross misappreciation of evidence involves injustice and it
is the duty of the High Court to redress such injustice. We would like to
reiterate that the justice has to be administered in accordance with law.
10. When Section 100 C.P.C. is critically examined then, according to the legislative
mandate, the interference by the High Court is permissible only in cases involving
substantial questions of law.

Some leading Cases decided after 1976 amendment In Bholaram v.

Amirchand (1981) 2 SCC 414 a three-Judge Bench of this court reiterated the
statement of law. The High Court, however, seems to have justified its interference
in second appeal mainly on the ground that the judgments of the courts below were
perverse and were given in utter disregard of the important materials on the record
particularly misconstruction of the rent note. Even if we accept the main reason
given by the High Court the utmost that could be said was that the findings of fact
 by the courts below were wrong or grossly inexcusable but that by itself would not
entitle the High Court to interfere in the absence of a clear error of law.

In Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438], a three
judge Bench of this court held: (a) that the High Court should be satisfied that the
case involved a substantial question of law and not mere question of law; (b) reasons
for permitting the plea to be raised should also be recorded; (c) it has the duty to
formulate the substantial questions of law and to put the opposite party on notice
and give fair and proper opportunity to meet the point. The court also held that it is
the duty cast upon the High Court to formulate substantial question of law involved
in the case even at the initial stage.

This court had occasion to determine the same issue in Dnyanoba Bhaurao Shemade
v. Maroti Bhaurao Marnor (1999) 2 SCC 471. The court stated that the High Court
can exercise its jurisdiction under Section 100 C.P.C. only on the basis of substantial
questions of law which are to be framed at the time of admission of the second
appeal and the second appeal has to be heard and decided only on the basis of the
such duly framed substantial questions of law.

11. "Now under Section 100 CPC, after the 1976 Amendment, it is essential for
the High Court to formulate a substantial question of law and it is not
permissible to reverse the judgment of the first appellate court without
doing so."
12. It is to be reiterated that under Section 100 CPC jurisdiction of the High
Court to entertain a second appeal is confined only to such appeals which
involve a substantial question of law and it does not confer any jurisdiction
on the High Court to interfere with pure questions of fact while exercising
its jurisdiction under Section 100 CPC. That apart, at the time of disposing
of the matter the High Court did not even notice the question of law
formulated by it at the time of admission of the second appeal as there is
no reference of it in the impugned judgment...."

Again in Santosh Hazari v. Purushottam Tiwari (deceased) by LRs. (2001) 3 SCC 179,
another three-Judge Bench of this court correctly delineated the scope of Section 100
C.P.C.. The court observed that an obligation is cast on the appellant to precisely state
in the memorandum of appeal the substantial question of law involved in the appeal and
which the appellant proposes to urge before the court. In the said judgment, it was
further mentioned that the High Court must be satisfied that a substantial question of
law is involved in the case and such question has then to be formulated by the High
Court. According to the court the word substantial, as qualifying "question of law",
means - of having substance, essential, real, of sound worth, important or considerable.
It is to be understood as something in contradistinction with - technical, of no substance
or consequence, or academic merely. However, it is clear that the legislature has chosen
not to qualify the scope of "substantial question of law" by suffixing the words "of
general importance" as has been done in many other provisions such as Section 109 of
the Code of Article 133(1) (a) of the Constitution.
In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311 the court came to the
conclusion that the finding thus reached by the first appellate court cannot be interfered
with in a second appeal as no substantial question of law would have flowed out of such a
finding.

In Thiagarajan v. Sri Venugopalaswamy B. Koil [(2004) 5 SCC 762], this court has held
that the High Court in its jurisdiction under Section 100 C.P.C. was not justified in
interfering with the findings of fact. The court observed that to say the least the approach
of the High Court was not proper. It is the obligation of the courts of law to further the clear
intendment of the legislature and not frustrate it by excluding the same. This court in a
catena of decisions held that where findings of fact by the lower appellate Court are based
on evidence, the High Court in second appeal cannot substitute its own findings on
reappreciation of evidence merely on the ground that another view was possible.

13. In the case of H. P. Pyarejan v. Dasappa [(2006) 2 SCC 496] delivered on 6.2.2006,
this court found serious infirmity in the judgment of the High Court. This court
observed that it suffers from the vice of exercise of jurisdiction which did not vest
in the High Court. Under Section 100 of the Code (as amended in 1976) the
jurisdiction of the court to interfere with the judgments of the courts below is
confined to hearing of substantial questions of law. Interference with the finding of
fact by the High Court is not warranted if it invokes reappreciation of evidence. This
court found that the impugned judgment of the High Court was vulnerable and
needed to be set aside.

In Chandrika Singh (Dead) by LRS & Another v. Sarjug Singh & Another (2006) 12 SCC
49, this court again reiterated legal position that the High Court under section 100 CPC has
limited jurisdiction. To deal with cases having a substantial question of law, this court
observed as under:

... While exercising its jurisdiction under Section 100 of the Code of Civil Procedure, the
High Court is required to formulate a substantial question of law in relation to a finding of
fact. The High Court exercises a limited jurisdiction in that behalf. Ordinarily unless there
exists a sufficient and cogent reason, the findings of fact arrived at by the courts below are
binding on the High Court..."

14. It is a matter of common experience in this court that despite clear

enunciation of law in a catena of cases of this court, a large number of cases
are brought to our notice where the High Court under section 100 CPC are
disturbing the concurrent findings of fact without formulating the
substantial question of law. We have cited only some cases and these cases
can be easily multiplied further to demonstrate that this court is compelled
to interfere in a large number of cases decided by the High Courts under
section 100 CPC. Eventually this court has to set aside these judgments of
the High Courts and remit the cases to the respective High Courts for
deciding them de novo after formulating substantial question of law.
Unfortunately, several years are lost in the process. Litigants find it both
 extremely expensive and time consuming. This is one of the main reasons
of delay in the administration of justice in civil matters.
15. In this view of the matter, we are constrained to set-aside the impugned judgment
of the High Court and remit the second appeal to the High Court for deciding it de
novo on merits after framing the substantial question of law. In order to further avoid
delay, we direct the parties to appear before the High Court on 16.3.2009. This case
has been pending for quite a long time, therefore, we request the High Court to
dispose of the second appeal as expeditiously as possible.

16. The appeal is accordingly disposed of leaving the parties to bear their own costs.

Sunil Krishna Ghosh And Anr. vs Calcutta Improvement Trust on 17 April,

2001

1. This is a suit for. In substance, specific performance of an agreement for sale of

three plots of land being plot No. 27 of premises No. 6 Nayan Krishna Saha Lane,
plot No. 40 out of premises No. 29 Durga Charan Mukherjee Street and plot No. 25
out of premises No. 6 Nayan Krishna Lane. The aforesaid three plots of land are
measuring about 6 Katthas 15 Chataks, 2 Katthas 14 Chataks and 6 Kathas 7
Chataks respectively hereinafter referred to as the suit properties.
2. One Mr. Asit Kumar Ghosh since deceased was offered by the defendant for
purchase of the said three plots of land in terms of Section 81 of the Calcutta
Improvement Act, 1911 as the original offeree was the previous owner of the
aforesaid plots of land which were previously acquired by the Calcutta Improvement
Trust. There is no dispute to the aforesaid fact that the original offeree can exercise
his statutorily preemptive right enshrined in Calcutta Improvement Act, 1911
(hereinafter to as the said Act). There is no dispute that the full consideration has
been paid long ago.
3. The original plaintiff namely Pallav Kumar Banerjee, since deceased, and the
present two plaintiffs filed the aforesaid suit in the capacity of the Joint Executors
in terms of the last Will dated 28th August, 1994 made and published by the said
Asit Kumar Ghosh since deceased. The probate has been obtained by the executors
being Ext. E. During the pendency of the suit, the original plaintiff No. 1, Pallav
Kumar Banerji, died. The other two surviving executors are now continuing with
this action. The defendant has entered appearance and filed written statement. The
suit is being tried on the following issues :--

"ISSUES

1. Is the suit maintainable for non-compliance of mandatory provisions under

Section 156 of the C.I. Act, 1911?

2. Is the suit barred by the provisions of Law of Limitation?

 3. Is the plaintiff entitled to get the relief as claimed in the plaint?

4. Whether the plaintiff has performed his part of obligation in completing the
conveyance?

5. Whether the claim of the plaintiff is barred by the principles of waiver and ac-'
quiescence?

6. What other reliefs, if any, the plaintiff is entitled to have?"

4. The plaintiff has examined one witness in order to prove its case and whereas the
defendant has examined two witnesses to defend the suit. From bare reading of the
aforesaid issues and upon the evidence adduced and so also averment of the plaint
and written statement, it will appear that factually there is not much dispute, only
dispute is as to the law and further dispute is regarding delivery of the physical
possession of the property. Mr. Roy Chowdhury, learned Counsel for the defendant,
contends that first of all the suit is not maintainable in view of non-service of
statutory notice as required under Section 156 of the aforesaid Act. He contends that
there must be a notice followed by pleadings in the plaint. There is none. On the
face of it the suit is liable to be dismissed. His next contention on the question of
law is that even if the suit is held to be maintainable then the claim of the plaintiff
is barred by limitation as admittedly the agreement was concluded sometimes on or
about 27th July, 1965 whereas the suit has been filed in the year 1999. The suit
should have been brought within three years from the date of execution of the
aforesaid agreement. He contents that if it is held by this Court that the suit is
otherwise maintainable, both on the question of limitation as well as other statutory
provisions then his client is prepared to execute and register conveyance but
physical possession thereof cannot be given as the physical possession thereof had
been given to the predecessor in interest of the plaintiffs. Therefore, question of
passing decree for physical demarcation of the property and delivery of physical
posssession thereof does not and cannot arise. In support of his contention as to the
service of notice, he has relied on an unreported decision of this Court. He contends
that this purchase in exercise of pre-emptiion right has been made under the
provision of the statute, so transaction squarely comes within the provision of
Section 156 of the said Act. This agreement was entered in exercise of power under
Section 81 of the said Act, Therefore, notice is mandatory. He draws my attention
to the unreported Division Bench Judgment of this Court passed in Appeal No. 156
of 1979 on 31st August, 1998 (Sardarmall Kankaria v. The Trustees for the
improvement of Calcutta).
5. Mr. Pramit Roy, learned Counsel appearing on behalf of the plaintiff, submits that
no notice is required to be served in this case as the claim of the plaintiff is not based
on and/or pursuant to any act which purports to have been done under the said Act.
He contends that agreement for sale of the aforesaid three plots of land is not the act
that falls within the provision and/or meaning of the Calcutta Improvement Act,
1911, up to the stage of making offer to sell the aforesaid three plots of land if this
exercise can be termed to be an act purporting to be done under this Act. After the
offer is accepted and the formal agreement is entered into, the transaction becomes
absolutely independent and outside the purview of the provision of the aforesaid
 Act. In support of his contention, he has relied on a decision and (1983) 1 Cal HN
page 1 equivalent to (1983) 87 Cal WN 216. He contends alternatively even if it is
held by this Court that the aforesaid notice is required to be served then a letter
addresed to M/s. A. N. Dawn has been served upon the Board on 26th November,
1998 and much before institution of the suit. Therefore, substantial compliance of
Section 156 has been done.
6. As far as the question of limitation is concerned, he contends that Article 55 of the
schedule of the Limitation Act will be applicable in this case. There is no fixed time
to execute conveyance sought to perform in the agreement and when there is no
fixed time, the suit has to be brought within three years from the date of the refusal
to perform the agreement. In this case, as on today, there is no refusal expressly until
written statement was filed.
7. Mr. Roy further contends that from the evidence and deposition of DW as well as
the plaintiff that physical possession of the property was not given to the plaintiffs
or to their predecessors-in-interest. The aforesaid fact of not giving physical
possession is corroborated by the judgment and order passed by Justice S. B. Sinha
in the writ petition filed by his client whereby the demand for payment of the rates
and taxes raised by the Municipal Authorities was set aside.
8. Having heard the respective contentions of the learned Counsel, in order to decide
the suit, I am of the view that it would be suffice to answer two issues namely Issue
Nos. 1 and 2. Therefore, I take up Issue No. 1 first i.e. as to whether there is non-
compliance of mandatory provisions under Section 156 of the Calcutta
Improvement Act, 1911 or not. First I will have to decide whether Section 156 will
be applicable in this case or not and thereafter question of compliance of the
aforesaid Section will come. I am unable to accept the submission of Mr. Roy that
the offer to sell the property under the provision of Section 81 of the said Act will
not come within the purview of the aforesaid Act. The very basis of agreement is
offer, that has been put forward under Section 81 of the said Act and this will appear
from the admitted documents that the offer was made pursuant to the said provision.
So I hold that the action taken by the Board is an act purporting to be under the
provision of the aforesaid Improvement Act. As far as refusal is concerned, the same
is culmination of the statutory action taken by the Board. The decisions cited by Mr.
Roy are absolutely distinguishable on factual aspect. In those cases, transaction took
place not in relation to Act or action pursuant to the aforesaid Act. Those
transactions relate to absolutely ordinary commercial transactions. Therefore, those
decisions are not applicable in this case.
9. Accordingly, I hold that notice was required to be served under Section 156 upon
the defendant Board.
10.Now the question remains whether the plaintiff has compiled with the provision or
not. Admittedly the plaintiff has served a notice upon the Board on 26th November,
1998, through their Advocate-on-Record M/s. A. N. Dawn. The purpose of Section
156 is to give notice upon the Board stating grievance that is to say, the cause of
action and redressal and/or relief sought for. These are the basic requirements to be
communicated in writing and which is the real Intention and purport of the provision
of Section 156. The whole idea to incorporate the aforesaid Section as in case of
Section 80 of the Code of Civil Procedure and also in other similar statute is to give
a prior notice so that the Board and/or the Government department may get a chance
to examine the demands made by the plaintiff and the defendant concerned may not
 be driven to unnecessary litigation in case of a genuine claim. The statutory body
and the Government departments are not expected like ordinary lltgants to fight
litigation for genuine and clear claim. In order to eliminate these eventualities, the
legislator has intended to make a provision and that is why some sort of periodic
bar. Is created. The compliance of Section 156 is not required in strict sense and
manner, the substantial compliance is good enough to enable the plaintiff to file suit.
It has to be examined, whether the Government or statutory authority has understood
the grievance and reliefs claimed by the notice. In this case the defendant
understood.
11.Therefore, I am of the view that in this case the plaintiff has complied substantially
with provision of Section 156, so I answer the Issue No. 1 in favour of the plain-j
tiff and in the affirmative.
12.Now taking up the Issue No. 1 whether the suit is barred by limitation or not, I am
of the view that the suit is not barred by limitation for the following reasons :--

According to the defendant's version that will appear in their evidence in questions
Nos. 32, 83 of DW 1. Ram Prasad Mitra that the paper possession has been given
and the consideration money has been received. According to the version of the
plaintiff, neither paper possession nor physical possession has been given. In this
case, there is no stipulated date of performance of the contract. The plaintiffs have
performed their part of contract whereas the defendant has not. The defendant has
not in writing refused either to execute the conveyance or to perform their part.
Moreover in my view, this is a continuous breach on the part of the defendant by
not handing over physical possession. Therefore, I hold not only Article 55 of the
Schedule of the Limitation Act but Section 2 of the Limitation Act will also be
applicable as this is a continuing cause of action because in each and every day the
breach is being committed by the defendant. So I hold that this suit is not barred by
limitation. As Mr. Roy Chowdhury has conceded that in the event it is held by this
Court the suit is otherwise maintainable his client is prepared to execute the
conveyance, so acting on this concession. I direct the defendant to execute and
register necessary conveyance within three months from the date of putting forward
the draft conveyance, in default thereof the Registrar, O.S.. of this Court will
execute and register the conveyance on behalf of the defendant.

13.The next question remains for delivery of physical possession of the property.
According to Mr. Roy Chowdhury, the possession both physical and paper, have
been given and such fact is denied and disputed by Mr. Roy Chowdhury. Mr. Roy
Chowdhury further submits that in fact physical possession of the property was
never taken by his client. I am unable to accept this contention at this stage as the
property was admittedly acquired. So possession follows acquisition and this is what
is exactly recorded in the judgment and order of Justice Sinha passed in the writ
petition. Since there is a question as to who is in physical possession, in fact it may
so happen by passage of time some other person or person might or might not sneak
into property. In order to ascertain actual physical possession of properties in
question, this Court for the ends of justice thinks that a fit and proper person be
appointed for this purpose. So I appoint Mr. Shyamal Sanyal, a practising Advocate
of this Court as Special Officer who shall visit upon notice to both the parties the
said properties in question and shall submit a report to this Court as to who are in
 physical possession of the aforesaid three plots of land and since when and what is
the status claimed by the persons who are occupying the said premises. The Special
Officer shall be paid remuneration assessed at 500 G.Ms, to be paid by the plaintiff
at the first instance.
14.Let this matter appear in the list under the heading marked for further orders
fortnight hence.
15.Upon furnishing a xerox copy of the original Register being Ext. A, it is permitted
to be taken away by the defendant. Accordingly, the same is returned. Similarly
upon furnishing a xerox copy of the probate, the same is allowed to be taken away.
The same is returned accordingly.
16.Special Officer, Registrar. Original Side, Department and all parties to act on a
xeroxed signed copy of this dictated order upon usual undertaking.

KK Velusamy vs N Palanisamy

Bench: Justice R V Raveendran, Justice A K Pattnaik

Appellant: K K Velusamy

Respondent: N. Palanisamy

Issue

Did the appellant-defendant enter into a registered agreement of sale? Whether

applications for reopening of evidence and recalling of witnesses can be allowed by
Courts under Section 151 of the Code of Civil Procedure?

Facts

A suit for specific performance of a contract was filed by the respondent. The contract
was entered into by him and the appellant for a consideration. The responden t had
paid an advance and the appellant had agreed to execute the sale deed upon receiving
the remaining amount within three months. Accordingly, the respondent waited at the
Sub-Registrar’s office for the said execution and the appellant did not show up. Owing
to these circumstances, the respondent urged for specific performance of the contract
alongside the interest.

Appellant’s contentions

It was contended by the appellant that since the respondent is a money lender, a loan
of ₹ 1,50,000 was taken from him in lieu of blank signed papers signed by the
appellant. A compact disc was presented by the appellant. This disk contained
recordings of calls between the appellant, the respondent, and three other individuals
involved in the case. Through this electronically presented evidence, the appellant
sought to prove that the agreement of sale was only made as a security for the loan.
Respondent’s contentions

The respondent opposed that the electronically presented evidence was false. It was
contended that it was a result of mimicry artists. He contended that the application
was a dilatory tactic to drag on the proceedings.

Relevant Paragraphs (Paragraph Numbers 8, 10, 16, 17 of the Original

Judgement)

1. A Court, either on its own (suo moto) or on an application by a party on their

behalf, can exercise its power of recalling witnesses under Order XVIII Rule 17
of the Code. This power of the Court is discretionary, and the Court must apply
it only in relevant cases.
2. The power to reopen the evidence is not provided anywhere in the Code.
However, Section 151 of the Code empowers a Court with some inherent
powers for the purpose of securing the ends of justice and preventing the abuse
of the process of law. Since there is no specific provision regarding the
reopening/recalling, a Court may consider the same under Section 151 of the
Code.
3. The power under Section 151 and Order XVIII Rule 17 must be exercised
cautiously, and only in appropriate circumstances. The Court should award
appropriate costs, and make sure that there is no delay in the proceedings
thereafter. If an application in this regard is found to have been filed with some
mala fide intention, it should be rejected with heavy costs.

Judgement

These appeals were allowed in part. The orders of the High Court and Trial Court
dismissing the application under section 151 of the Code were set aside. The orders
are affirmed in regards to the dismissal of IA Non 217/2009 under Order 18 Rule 17 of
the Code.