Second Appeal No.426 of 2005

28th August, 2006

Petitioner Counsel: Shri. A. B. CHAUDHARY
Respondent Counsel: Shri. NEERAJ PATIL

Cases Cited:
Gurdev Kaur Vs. Kaki, 2006(5) ALL MR 140=AIR 2006 SC 1975 [Para 2,11]
Santosh Hazari Vs. Purushottam Tiwari, 2001(2) Mh.L.J. 786 [Para 3,4,10]
ILR 1952 Madras 264 [Para 5]

JUDGMENT

JUDGMENT :- Heard.

2. Admission of this Second appeal is opposed by the learned Advocate for the respondents relying upon recent judgment of Supreme Court reported in AIR 2006 SC 1975 : [2006(5) ALL MR (S.C.) 140], Gurdev Kaur & V. Kaki & Ors.

3. On the contrary, Learned Advocate Mr. Chaudhary has placed reliance on the judgment reported in 2001(2) Mh.L.J. 786, Santosh Hazari Vs. Purushottam Tiwari.

4. According to learned Advocate Mr. Chaudhary, three Judges Bench of Hon'ble Supreme Court in Santosh Hazari's case supra, has dealt with and decided all submissions on the point as to what is exact meaning of 'a substantial question of law' in second appeal under Section 100 of Civil Procedure Code.

5. According to Mr. Chaudhary, Their Lordships of the Supreme Court discussed in para 12 of said Judgment the case reported in ILR 1952 Madras 264 a Judgment of Full Bench of Madras High Court, where Lordships of Madras High Court held as follows:

"12. 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 substaintial question of law."

6. Upon considering what is held in said full bench Judgment of Madras High Court, Lordships of Supreme Court observed in para 13 thereof, which is eloquent enough and should be preferably quoted ad verbatim as follows :

"13. In Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate Vs. Rama Krishna Narain & Ors., AIR 1953 SC 521, also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to certificate under (the then) Section 110 of the Code."

7. Lordships of Supreme Court then laid down in para 14 of the test what a substantial question of law would mean stating and laying down as follows :-

"14. 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 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 fact and circumstances of each case whether a question of law is 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." [Emphasis is supplied by this Court]

8. In the said background, Their Lordships of Supreme Court formulated in para No.16 in said Santosh Hazari's case at page 794 of said report a substantial question of law as appeared to Their Lordships found involved in said case, which is quoted ad verbatim as below, remanded the case for hearing by High Court :-

"Whether on the pleadings and the material brought on record by the defendant, the first Appellate Court was right in holding that the case of adverse possession was made out by the defendant and the suit filed by the plaintiff was liable to be dismissed as barred by time under Article 65 of the Limitation Act, 1963, more so when such finding was arrived at in reversal of the findings of the trial Court.?"

9. Therefore, in the conclusion, according to Mr. Chaudhary, from the question formulated by Their Lordships of the Supreme Court consisting of three Judges bench, it is clear that a question of law arising between the parties necessary for dispensation of justice without calling upon any adjudication in the factual matrix would be a substantial question of law.

According to Mr. Choudhari, therefore, the test laid down in para 14 of Santosh Hazare's case read together with para 16 thereof provides a yardstick to assess existence of a substantial question of law.

10. In view of the aforesaid discussion, this Court finds that it shall be necessary, not just permissible to follow a larger bench Judgment of Hon'ble Supreme Court in case of Santosh Hazari (supra) which still governs the field.

11. Admission of second appeal will thus depend upon Court's satisfaction about involvement of substantial question of law within the parameters discussed and laid down by Their Lordships of Supreme Court in Santosh Hazari's case as referred to in para 14 and 16 of said case. This Court, however, has to be conscious of the position that the Second Appeal is not converted in to "Third Trial" on facts as observed and laid down in Gurdev Kaur's case [2006(5) ALL MR (S.C.) 140] supra.

12. Considering these matters now Court proceeds to hear the Second appeal on merits as to involvement of substantial Question of Law.

13. After hearing,this Court finds that the plaintiff has pleaded that "he entered in contact with the defendant". Admittedly, he has not stepped into witness box. The evidence was led by plaintiff by putting plaintiff's daughter & General Power Attorney into witness box. The facts about her having participated or having herself dealt with in the process of emergence of promise was not pleaded, suggested or proved. The plaintiff did not step into witness box. Suit has been decreed based on the evidence of General Power of Attorney who was not privy or witness. Plaintiff could have over come this difficulty had he stepped into witness box and said that entire process was undertaken by his General Power of Attorney holder. In this background, this Court finds that present is a fit case for admission, as it raises substantial question of law about competence of a General Power of Attorney as a witness.

14. Hence, the following order.

(A) Appeal is admitted. Following questions of law is framed :

(I) In view of admitted position that the plaintiff pleaded in para 3 of the plaint that he entered into contract with the defendant and his having failed to step into the witness box to involve General Power of Attorney to have acted for plaintiff, how, the evidence of power of attorney would be a legal evidence to prove the contract ?

(II) Whether the Court below erred in correctly applying the provisions of Section 2 of Power of Attorney Act, 1892 and Section 118 of the Evidence Act, in the facts of the present case ?

(B) Liberty to the respondents to apply for early hearing by supplying private paper book. If Private Paper Book is supplied within eight weeks, printing is dispensed with.

Order accordingly.