Case BriefsHigh Courts

Orissa High Court: D Dash J. dismissed the appeal and held the appellants liable for compensation.

The facts of the case are such that the husband of the Plaintiff’ in the original suit, aged 44 years, earning Rs 8000 a month was going to his agricultural field suddenly came in contact with 11 K.V. electric wire, electrocuted and met an instantaneous death by said electrocution. Plaintiff 1 being wife and Plaintiff 2 being mother of the deceased filed the suit claiming compensation from the Defendants i.e. Central Electricity Supply Utility of Orissa and its officials. The trial court held that the Plaintiffs are entitled to be compensated by the defendants on account of negligence. The Defendants then preferred an appeal challenging the said judgment and decree passed by the trial court and Plaintiff filed a cross-appeal for increasing the quantum of compensation. Accordingly, while dismissing the appeal, the lower appellate court has allowed the cross-appeal enhancing the quantum of compensation. Assailing the said dismissal order instant second appeal under Section 100 Civil Procedure Code i.e. CPC was filed.

Counsel for the appellants Mr B. Dash submitted that the basis of the evidence that the overhead live electric wire being snapped when touches the ground, the supply of electricity through that wire is totally disrupted from end to end which has gone unchallenged; the courts below ought not to have said that the death of the husband of Plaintiff was due to the electrocution for the reason that the deceased came in contact with snapped overhead electric wire when he was on his way to the agricultural field. It was further submitted that the factual aspect is beyond pleadings and based on evidence.

Counsel for the respondents Mr B. Mohanty submitted that the court did commit no mistake in recording the said findings under attack and those are based on just and proper appreciation of evidence on record. It was submitted that the assessment of compensation as made by the lower appellate court is also in consonance with the settled principles as have been holding the field.

The Court observed that the principle of law is settled that a person undertaking an activity involving hazardous or risky exposure to human life is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as “strict liability”.

The Court further observed that it is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human, being, who gets unknowingly trapped into if the primary liability to compensate the sufferer is that of the supplier of the electric energy.

The Court thus held “that the mistake committed by the trial court on those factual aspects by ignoring certain evidence on record and in not taking judicial notice of certain facts has been well rectified in appeal and in that way, it is found that the lower appellate court has so exercised its jurisdiction and power within the four corners of law.”

 In view of the above, appeal was dismissed.[Central Electricity Supply Utility of Odisha v. Damayanti Samal, 2021 SCC OnLine Ori 166, decided on 15-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal J., allowed the appeal and condoned the delay while setting aside the impugned order.

The facts of the case are that the plaintiffs filed a civil suit for declaration of title and for permanent injunction in respect of the land. The Trial Court dismissed the suit of the plaintiffs, against which the plaintiffs preferred an appeal under Section 96 of the Civil Procedure Code i.e. CPC before the first appellate court which was barred by limitation, an application under Section 5 of the Limitation Act was also filed stating that the plaintiffs preferred an application under Order 43 Rule 1(U) of the CPC before the High Court that has been dismissed. Thereafter appeal was preferred before the first appellate court which was rejected being devoid of merits. Aggrieved by this second appeal was filed under Section 100 of CPC.

Counsel for the appellants submitted that first appellate Court is absolutely unjustified in not condoning the delay of 72 days as the plaintiffs are entitled to the benefit of Section 14 of the Limitation Act, as such, the application for condonation of delay ought to have been allowed by the first appellate Court.

The Court relied on judgment N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123 wherein it was held

“11. Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

  1. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumptions that delay in approaching the court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice

The Court thus observed that the meaning of “sufficient cause” under Section 5 of the Limitation Act, 1963 held that the Courts should adopt a liberal and justice-oriented approach and condoned the delay of four days in filing appeal, under Section 5 of the Limitation Act, 1963.

The Court thus held that “it is quite vivid that plaintiffs’ suit for declaration of title and for permanent injunction was dismissed against which plaintiffs filed an appeal along with an application for condonation of delay for condoning the delay of 72 days in filing the appeal offering an explanation that they filed MA before this Court which was dismissed as withdrawn on 08.5.2008. It is not disputed that against the judgment and decree of the trial Court, an appeal under Section 96 of CPC before the first appellate Court would lie and appeal under Order 43 Rule 1(U) of CPC would not lie, therefore, the appellants/plaintiffs were entitled for the benefit of Section 14 of the Limitation Actas such, in the considered opinion of this Court, sufficient cause has been shown by the plaintiffs for the delay of 72 days in filing the appeal.”

In view of the above, impugned order was set aside and appeal allowed.[Ramvriksha Gond v. Babulal Gond, 2021 SCC OnLine Chh 39, decided on 14-01-2021]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ has held that the High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court.

The Court was hearing the case relating to suit for permanent injunction wherein the High had dismissed the second appeal without framing any substantial question of law. It was contended before the Court that framing of substantial question of law is mandatory in terms of Section 100 CPC and hence, the matter should be remitted back to the High Court for determination of the substantial question of law framed by the appellants.

On this, the Court explained that Sub-section (1) of Section 100 CPC contemplates that an appeal shall lie to the High Court if it is satisfied that the case involves a substantial question of law. The substantial question of law is required to be precisely stated in the memorandum of appeal. If the High Court is satisfied that such substantial question of law is involved, it is required to formulate that question. The appeal has to be heard on the question so formulated. However, the Court has the power to hear appeal on any other substantial question of law on satisfaction of the conditions laid down in the proviso of Section 100 CPC.

Therefore, if the substantial question of law framed by the appellants are found to be arising in the case, only then the High Court is required to formulate the same for consideration. If no such question arises, it is not necessary for the High Court to frame any substantial question of law.

“The formulation of substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law.”

It was the case of the appellants that the First Appellate Court had ordered that the question of jurisdiction of Civil Court would be decided first, however the appeal was decided without dealing with the said issue., thereby causing serious prejudice to the rights of the appellants. Similarly, the application under Order XLI Rule 27 of the Code was not decided which was again prejudicial to their rights.

The Court, however, found that such substantial questions of law did not arise for consideration. The issue of jurisdiction was not an issue of fact but of law. Therefore, it could very well be decided by the First Appellate Court while taking up the entire appeal for hearing.

It was noticed that the suit was simpliciter for injunction based upon possession of the property, hence, the said suit could be decided only by the Civil Court as there is no mechanism prescribed under the Land Revenue Act for grant of injunction in respect of disputes relating to possession. The Civil Court has plenary jurisdiction to entertain all disputes except in cases where the jurisdiction of the Civil Court is either expressly or impliedly barred in terms of Section 9 CPC. Since there is no implied or express bar of jurisdiction of the Civil Court in terms of Section 9 CPC, the Civil Court has plenary jurisdiction to decide all disputes between the parties.

Hence, it was held that the High Court did not commit any illegality in not framing any substantial question of law while dismissing the appeal filed by the appellants.

[Kirpa Ram v. Surendra Deo Gaur,  2020 SCC OnLine SC 935, decided on 16.11.2020]


*Justice Hemant Gupta has penned this judgment 

Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua J., dismissed the appeal on ground of impugned judgment/orders being devoid of any infirmity.

The facts in a nutshell are that three ladies are claiming themselves to be the legally wedded wives of late Sh. Prem Chand and therefore entitled to his service benefits. Suit filed by one of them i.e. L1 and opposed by the other two L2 and L3, has been decreed by the learned Trial Court. This decree has been affirmed by the learned First Appellate Court. Aggrieved, the other two ladies are before this Court by way of second appeal based on important question of law that whether the Courts by way of impugned judgment misconstrued or misinterpreted the pleadings and evidence in finding out as to who is the legally wedded wife and children of the deceased.

Counsel Nimish Gupta and Vinod Thakur represented the appellants and Counsel Surinder Saklani, H.S. Rangra, Amit Dhumal, and. Manoj Bagga represented the respondents.

Submissions by L2

Neither was L2 able to show any proper documentary proof validating her claims of being legally wedded wife nor her children able to proof themselves as legal representatives of the deceased. She relied on entry of her name as the nominee in the service record of the deceased however no contemporary evidence was presented validating the same. The fact that no pandit was involved during her marriage with the deceased and that she couldn’t attend funeral of the deceased vitiates her claims further.

 Submissions by L3

L3 also failed to show any proper documentary evidence validating her claim infact she even admitted that she made no objection or complaint regarding one other man working as a sweeper in HRTC Mandi whose details reflects L3 as his wife and her children as his own.

Submissions by L1

 L1 substantiated her claim by showing negatives of wedding pictures as well as pandit who performed the marriage rites , Jamabandi Record, Panchayat Record affidavits which clearly show that deceased and L1 applied for their wedding to be registered along with Legal Heirs Certificate validating the claim of her children as the legal representatives of the deceased.

The Court observed that a second appeal only lies on a substantial question of law. It is not open to re-agitate facts or to call upon the High Court to re-analyze or re-appreciate evidence in a second appeal. Section 100 of the Code of Civil Procedure restricts the right of second appeal only to those cases, where a substantial question of law is involved.

The Court held that all the aspects in the instant second appeal and cross objection are purely factual. No substantial question of law arises in this appeal or cross-objections.

In view of the above, the appeal stands dismissed and disposed off.[Shanta Devi v. Kaushalya Devi, 2020 SCC OnLine HP 1828, decided on 01-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The bench of Navin Sinha and Indira Banerjee, JJ has held that when no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal cannot satisfy the mandate of Section 100 of the CPC.

It said that for entertaining and deciding a second appeal, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law.

“Just as this Court has time and again deprecated the practice of dismissing a second appeal with a non-speaking order only recording that the case did not involve any substantial question of law, the High Court cannot also allow a second appeal, without discussing the question of law, which the High Court has done.”

Explaining the scope of Section 100 CPC, the Court said that a second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal.

The Court, further, explained:

  • To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.
  • To be a question of law “involved 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 Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.

“Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, a second appeal cannot be entertained.”

Conclusion

  1. An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
  2. The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
  3. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
  4. 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
    • the courts below have ignored material evidence or acted on no evidence;
    • the courts have drawn wrong inferences from proved facts by applying the law erroneously; or
    • the courts have wrongly cast the burden of proof.

“A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”

[Nazir Mohamed v. J. Kamala, 2020 SCC OnLine SC 676, decided on 27.08.2020]

Case BriefsSupreme Court

Supreme Court: The Court, yet again, reminded the High Courts of the limitations under Section 100 CPC and said:

“despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.”

The bench L Naeswara Rao and MR Shah, JJ was hearing the appeal against the judgment of Punjab and Haryana High Court wherein the High Court had allowed the Second Appeal and had quashed   and set aside the judgment and decree passed by the First Appellate Court dismissing the suit and consequently has restored the judgment and decree passed by the Trial Court decreeing the suit relating to perpetual injunction.

The bench noticed that:

“While interfering with the judgment and order passed by the first Appellate Court, it appears that while upsetting the judgment and decree passed by the First Appellate Court, the High Court has   again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that High Court has not at all appreciated the fact that the High Court was deciding the Second Appeal under Section 100 of the CPC and not first appeal under Section 96 of the CPC.”

The Court reiterated that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to re­appreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal.

[Gurnam Singh v. Lehna Singh, 2019 SCC OnLine SC 374, decided on 13.03.2019]