IN THE HIGH COURT OF MADHYA PRADESH

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AT GWALIOR

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BEFORE

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HON'BLE SHRI JUSTICE DEEPAK KHOT

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ON THE 12

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th

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OF FEBRUARY, 2026

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SECOND APPEAL No. 135 of 2005

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ANIL KUMAR GARG

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Versus

SUPDT.ENGINEER, M.P.S.E.B.

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Appearance:

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Shri Mahesh Goyal, Advocate for the appellant.

Shri Rohit Shrivastava, Advocate on behalf of Shri Narottam Sharma,

Advocate for respondent..

ORDER

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This second appeal, under Section 100 of CPC, has been filed by the

appellant/plaintiff assailing the judgment and decree dated 28-10-2004

passed by II Additional District Judge, Shivpuri, whereby the appeal

preferred by the plaintiff was dismissed and the judgment and decree of the

trial Court dismissing the suit were affirmed.

2. The suit was instituted by the plaintiff seeking declaration and

permanent injunction against the defendant/Electricity Department

contending that the electricity bill of Rs. 24,219/- raised on the allegation of

excess load and irregular use of electricity was illegal, arbitrary and without

proper inspection; that the Meter was not got inspected by the Electricity

Inspector; that the load was incorrectly assessed by treating 40 HP Motor as

50 HP Motor and the 20 HP Motor which related to the closed Oil Mill was

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also added while ascertaining load; and that the respondent was not justified

in threatening disconnection of electricity supply.

3. The trial Court dismissed the suit holding that the plaintiff failed to

prove his pleadings by leading evidence. The First Appellate Court, on

appreciation of the entire material on record, recorded concurrent findings

that sufficient opportunities were granted to the plaintiff to adduce evidence,

however the plaintiff remained absent on the dates fixed for evidence and

failed to substantiate the allegations regarding illegal billing, illegal

assessment and alleged wrongful disconnection.

4. Learned counsel for the appellant submitted that the Courts below

erred in dismissing the suit without granting proper and effective opportunity

to the plaintiff to lead evidence; that the electricity department had raised an

arbitrary and excessive bill without conducting a proper inspection; that the

meter was wrongly treated as tampered; and that the plaintiff was ready and

willing to lead evidence but was prevented due to circumstances beyond

control. It was contended that the dismissal of the suit on the ground of non-

production of evidence has resulted in failure of justice and that the matter

deserves to be remanded for fresh consideration.

5. Heard, learned counsel for the appellant.

6. A bare perusal of the record reveals that issues were framed by the

trial Court on 8/8/2003 and the case was fixed for plaintiff's evidence on

25/9/2003. On 25/9/2003, plaintiff sought time to lead evidence and the case

was fixed for 11/11/2003. On 11/11/2003, in absence of plaintiff's evidence,

the case was again fixed for 16/12/2003 for recording plaintiff's evidence.

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Thereafter, again the case was fixed for 18/6/2004 and on that day also

plaintiff failed to lead evidence. Instead, he moved an application under

Order 6 Rule 17, CPC. However, the trial Court rejected the said application

finding it to be not bonafide and moved only for the purposes of protracting

the trial. As plaintiff had failed to lead evidence and sufficient opportunities

had already been granted to him, therefore, his right to lead evidence was

closed. The appellate Court also found that the amendments sought by way

of filing an application under Order 6 Rule 17, CPC, were in the knowledge

of plaintiff even at the time of filing of suit and, therefore, the said

application was nothing but a camouflage for delaying the trial.

7. On careful consideration of the submissions and on perusal of the

judgments of both the Courts below, this Court finds that the First Appellate

Court has elaborately dealt with the chronology of dates fixed for evidence

and has recorded that repeated and sufficient opportunities were granted to

the plaintiff to adduce evidence. The findings that the plaintiff remained

absent on the dates fixed for evidence and failed to show any sufficient cause

are findings of fact based on record. The findings recorded by both the

Courts below regarding the failure of the plaintiff to prove the allegations of

illegal billing, illegal assessment and alleged wrongful disconnection are

concurrent findings of fact. The appellant has not been able to point out any

perversity, misreading of evidence or violation of any mandatory provision

of law.

8. It is well established principle of law that this Court in exercise of

powers under S.100 of CPC, cannot interfere in findings of facts even if they

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are erroneous, unless the same are shown to be perverse. No perversity

could be pointed out by counsel for the appellant.

9. The Supreme

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Court in the case of Angadi Chandranna Vs. Shankar

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and Others

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decided on 22/04/2025

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in Civil Appeal No.5401/2025

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{Arising

out of SLP (C) No.6799 of 2022

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}, has held as under:-

"12. Before delving into the facts of the case, this court in

Jaichand (supra) expressed its anguish at the High Court for not

understanding the scope of Section 100 CPC, which limits

intervention only to cases where a substantial question of law

exists, and clarified that the High Court can go into the findings of

facts under Section 103 CPC only under certain circumstances, as

stated in the following passages:

“23. We are thoroughly disappointed with the manner

in which the High Court framed the so-called

substantial question of law. By any stretch of

imagination, it cannot be termed even a question of law

far from being a substantial question of law. How many

times the Apex Court should keep explaining the scope

of a second appeal Under Section 100 of the Code of

Civil Procedure and how a substantial question of law

should be framed? We may once again explain the well-

settled principles governing the scope of a second

appeal Under Section 100 of the Code of Civil

Procedure.

24. In Navaneethammal v. Arjuna Chetty reported in

MANU/SC/2077/1996 : 1998: INSC: 349 : AIR 1996

S.C. 3521, it was held by this Court that the High Court

should not reappreciate the evidence to reach another

possible view in order to set aside the findings of fact

arrived at by the first appellate Court.

25. In Kshitish Chandra Purkait v. Santosh Kumar

Purkait reported in MANU/SC/0647/1997 :

1997:INSC:487 : (1997) 5 S.C.C. 438), this Court held

that in the Second Appeal, the High Court should be

satisfied that the case involves a substantial question of

law and not mere question of law.

26. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao

Marnor reported in MANU/SC/0058/1999 : 1999 (2)

S.C.C. 471, this Court held: Keeping in view the

amendment made in 1976, the High Court can exercise

its jurisdiction Under Section 100, Code of Civil

Procedure 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 such duly

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framed substantial questions of law. A judgment

rendered by the High Court Under Section 100 Code of

Civil Procedure without following the aforesaid

procedure cannot be sustained.

27. This Court in Kondira Dagadu Kadam v. Savitribai

Sopan Gujar reported in MANU/SC/0278/1999 :

1999:INSC:192 : AIR 1999 S.C. 2213 held: The High

Court cannot substitute its opinion for the opinion of the

first appellate Court unless it is found that the

conclusions drawn by the lower appellate Court were

erroneous being contrary to the mandatory provisions of

law applicable or its settled position on the basis of

pronouncements made by the Apex Court, or was based

upon inadmissible evidence or arrived at without

evidence.

28. It is thus clear that Under Section 100, Code of Civil

Procedure, the High Court cannot interfere with the

findings of fact arrived at by the first Appellate Court

which is the final Court of facts except in such cases

where such findings were erroneous being contrary to

the mandatory provisions of law, or its settled position

on the basis of the pronouncement made by the Apex

Court or based upon inadmissible evidence or without

evidence.

29. The High Court in the Second Appeal can interfere

with the findings of the trial Court on the ground of

failure on the part of the trial as well as the first

appellate Court, as the case may be, when such findings

are either recorded without proper construction of the

documents or failure to follow the decisions of this

Court and acted on assumption not supported by

evidence. Under Section 103, Code of Civil Procedure,

the High Court has got power to determine the issue of

fact. The Section lays down: Power of High Court to

determine issue of fact: In any Second Appeal, the High

Court may, if the evidence on the record is sufficient to

determine any issue necessary for the disposal of the

appeal,- (a) Which has not been determined by the

lower Appellate Court or both by the Court of first

instance and the lower Appellate Court, or (b) Which

has been wrongly determined by such Court or Courts

by reason of a decision on such question of law as is

referred to in Section 100.

30. In Bhagwan Sharma v. Bani Ghosh reported in

MANU/SC/0094/1993 : AIR 1993 S.C. 398, this Court

held: The High Court was certainly entitled to go into

the question as to whether the findings of fact recorded

by the first appellate court which was the final court of

fact were vitiated in the eye of law on account of non-

consideration of admissible evidence of vital nature.

But, after setting aside the findings of fact on that

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ground the Court had either to remand the matter to the

first appellate Court for a rehearing of the first appeal

and decision in accordance with law after taking into

consideration the entire relevant evidence on the

records, or in the alternative to decide the case finally in

accordance with the provisions of Section 103(b). ...... If

in an appropriate case the High Court decides to follow

the second course, it must hear the parties fully with

reference to the entire evidence on the records relevant

to the issue in question and this is possible if only a

proper paper book is prepared for hearing of facts and

notice is given to the parties. The grounds which may be

available in support of a plea that the finding of fact by

the court below is vitiated in law does not by itself lead

to the further conclusion that a contrary finding has to

be finally arrived at on the disputed issue. On a

reappraisal of the entire evidence the ultimate

conclusion may go in favour of either party and it

cannot be prejudged.

31. In the case of Hero Vinoth v. Seshammal reported

in MANU/SC/2774/2006 : 2006:INSC:305 : (2006) 5

SCC 545 this Court explained the concept in the

following words: It must be tested whether the question

is of general public importance or whether it directly

and substantially affects the rights of the parties. Or

whether it is not finally decided, or 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.

32. It is not that the High Courts are not well-versed

with the principles governing Section 100 of the Code

of Civil Procedure. It is only the casual and callous

approach on the part of the courts to apply the correct

principles of law to the facts of the case that leads to

passing of vulnerable orders like the one on hand.”

12.1. In the present case, in our view, the so-called substantial

question of law framed by the High Court does not qualify to be a

substantial question of law, rather the exercise of the High Court is

a venture into the findings of the First Appellant Court by re-

appreciation of evidence. It is settled law that the High Court can

go into the findings of facts only if the First Appellate Court has

failed to look into the law or evidence or considered inadmissible

evidence or without evidence. Section 103 permits the High Court

to go into the facts only when the courts below have not

determined or rendered any finding on a crucial fact, despite

evidence already available on record or after deciding the

substantial question of law, the facts of a particular case demand

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re-determination. For the second limb of Section 103 to apply,

there must first be a decision on the substantial question of law, to

which the facts must be applied, to determine the issue in dispute.

When the First Appellate Court in exercise of its jurisdiction has

considered the entire evidence and rendered a finding, the High

Court cannot re-appreciate the evidence just because another view

is possible, when the view taken by the First Appellate Court is

plausible and does not suffer from vice in law. When the

determination of the High Court is only by way of re-appreciation

of the existing evidence, without there being any legal question to

be answered, it would be axiomatic that not even a question of law

is involved, much less a substantial one. It will be useful to refer

to another judgment of this Court in Chandrabhan (Deceased)

through L.Rs & Ors. v. Saraswati & Ors.11, wherein it was held as

follows:

“33. The principles relating to Section 100 of the Code of Civil

Procedure relevant for this case may be summarised thus:

(i) 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.

(ii) 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. 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.

(iii) The general Rule is that the High Court

will not interfere with findings of facts

arrived at by 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

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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.

34. In this case, it cannot be said that the First Appellate

Court acted on no evidence. The Respondents in their

Second Appeal before the High Court did not advert to

any material evidence that had been ignored by the First

Appellate Court. The Respondents also could not show

that any wrong inference had been drawn by the First

Appellate Court from proved facts by applying the law

erroneously.

35. In this case, as observed above, evidence had been

adduced on behalf of the Original Plaintiff as well as

the Defendants. The First Appellate Court analysed the

evidence carefully and in effect found that the Trial

Court had erred in its analysis of evidence and given

undue importance to discrepancies and inconsistencies,

which were not really material, overlooking the time

gap of 34 years that had elapsed since the date of the

adoption. There was no such infirmity in the reasoning

of the First Appellate Court which called for

interference.

36. Right of appeal is not automatic. Right of appeal is

conferred by statute. When statute confers a limited

right of appeal restricted only to cases which involve

substantial questions of law, it is not open to this Court

to sit in appeal over the factual findings arrived at by the

First Appellate Court.”

12.2. In the present case, the First Appellate Court analyzed the

entire oral evidence adduced by both parties, as well as the

documentary evidence relied upon by either side, and dismissed

the suit. The authority to re-consider the evidence is available only

to the First Appellate Court under Section 96 and not to the High

Court in exercise of its authority under Section 100, unless the

case falls under the exceptional circumstances provided under

Section 103. While so, the re-appreciation of the entire evidence,

including the contents of the exhibits, reliance on and wrongful

identification of a different property and treating the same to be

the suit property actually in dispute to prescribe another view

without any substantial question of law, only illustrate the

callousness of the High Court in applying the settled principles.

Therefore, the High Court erred in setting aside the judgment and

decree of the First Appellate Court."

10. Considering the totality of the facts and findings arrived at by

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(DEEPAK KHOT)

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JUDGE

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both the Courts below and applying above principle of law laid down by

Hon'ble Apex Court, this Court finds that no substantial question of law

arises in the present appeal. Accordingly, the appeal fails and is, hereby,

dismissed.

(and)

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