TaxTMI 
TaxTMI 
2014 (12) TMI 1330
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....plaint which are Ikrarnamas dated 10th January, 1981 and 21st August, 1986 are concocted have been fabricated for the purposes of present case. The defendant has never executed any document(s) acknowledging any right, title or interest of the plaintiffs. The suit property had been purchased by the defendant vide sale deed dated 7th August, 1980. The construction was commenced and completed between 1985 and 1987. The suit property stands mutated in his name. He is in sole and exclusive possession of the same till date without any protest and demur from the plaintiffs. After the lapse of 30 years from the purchase of the suit property which was in the knowledge of the plaintiffs, the plaintiffs have raised the false and frivolous claim in the present suit claiming that suit property is a joint family property. The defendant has denied any family arrangement/ decision taken by the parties. 3. It is further stated that father of the plaintiffs and defendant expired on 16th December, 2006 and their mother expired on 21st May, 2009. There is not even an iota of the truth in the contention of that the late parents of the parties had decided to treat the suit property as joint family prop....
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....ffidavit is still not filed by the plaintiffs although copy of the affidavit has been received. Learned counsel for the plaintiffs on the other hand states that the affidavit has been sent from the Germany. The same is likely to be received shortly. Learned counsel for the defendant has strongly opposed the request of the learned counsel for the plaintiffs and argued that the evidence of the plaintiffs is liable to be closed mainly on the two reasons; firstly he has referred to section 35 of the cpc that the cost has not been paid by the plaintiffs and in failure to do so, the plaintiffs are not entitled to proceed further with the matter and secondly he states that more than four adjournments have been granted and the plaintiffs right to adduce the evidence is liable to be closed. He submits that he is not ready to accept the cost. Counsel further submits that supplying the copy of the affidavit which has not been filed in Court has no consequence and his client is opposing any further request of the learned counsel for the plaintiffs. In support of his submissions, learned counsel for the defendant has referred the decision of the Supreme Court in the case of Shiv Cotex vs. Tirgu....
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.... and cannot be sustained for more than one reason. In the first place, the High Court, while deciding the second appeal, failed to adhere to the necessary requirement of Section 100 Code of Civil Procedure and interfered with the concurrent judgment and decree of the courts below without formulating any substantial question of law. The formulation of substantial question of law is a must before the second appeal is heard and finally disposed of by the High Court. This Court has reiterated and restated the legal position time out of number that formulation of substantial question of law is a condition precedent for entertaining and deciding a second appeal. Recently, in the case of Umerkhan v. Bismillabi @ Babulal Shaikh and Ors. Civil Appeal No.6034 of 2011 decided by us on July 28, 2011, it has been held that the judgment of the High Court is rendered patently illegal, if a second appeal is heard and judgment and decree appealed against is reversed without formulating the substantial question of law. 12. The legal position with regard to second appellate jurisdiction of the High Court was stated by us thus: 11. In our view, the very jurisdiction of the High Court in hearing a ....
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....the basis of No. evidence. But, who is to be blamed for this lapse? It is the Plaintiff alone. As a matter of fact, the trial court had given more than sufficient opportunity to the Plaintiff to produce evidence in support of its case. As noticed above, after the issues were framed on July 19, 2006, on three occasions, the trial court fixed the matter for the Plaintiff's evidence but on none of these dates any evidence was let in by it. What should the court do in such circumstances? Is the court obliged to give adjournment after adjournment merely because the stakes are high in the dispute? Should the court be a silent spectator and leave control of the case to a party to the case who has decided not to take the case forward? 15. It is sad, but true, that the litigants seek - and the courts grant - adjournments at the drop of the hat. In the cases where the judges are little pro-active and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady f....