1 2025:CGHC:4122 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MCC No. 1167 of 2024 1 - Smt. Laxmi Devi W/o Shri Girdhari Lal Sharma Aged About 59 Years R/o Ramsagarpara Raipur (Grain Merchant), Tehisl And District - Raipur Present Address M/s Shri Rice Mill Kurud Proprietor Girdhari Lal Sharma Kurud Tehsil Kurud District - Dhamtari Chhattisgarh 2 - Girdhari Lal Sharma (Died Throgh Lrs) As Per Honble Court Order Dated 25-03-2022 2.1 - Vijay Sharma S/o Late Girdhari Lal Sharma Aged About 50 Years R/o Ramsagar Para Raipur Tehsil And District - Raipur Chhattisgarh 2.2 - Ajay Sharma S/o Late Girdhari Lal Sharma Aged About 37 Years R/o Ramsagar Para Raipur Tehsil And District - Raipur Chhattisgarh 2.3 - Ashish Sharma S/o Late Girdhari Lal Sharma Aged About 31 Years R/o Ramsagar Para Raipur Tehsil And District - Raipur Chhattisgarh ... Applicants/appellants versus 1 - Purshottam Chandrakar S/o Shri Ramlal Chandrakar Aged About 32 Years Caste Kurmi Occupation Agriculture R/o Village Kurud Ward No. 1 Tehsil Kurud District - Dhamtari (Chhattisgarh) (Plaintiff) 2 - Purshottam S/o Shri Radheshyam Chandrakar Aged About 45 Years Cate Kurmi Occupation Business R/o Radheshyam Rice Mill Sandha Road Kurud District - Dhamtari (Chhattisgarh) District - Dhamtari Chhattisgarh (Def. No. 1to 3 3 - State Of Chhattisgarh Through Collector Dhamtari 4 - C.S.E.B. Through The Assistant Engineer / Junior Engineer C.S.E. Board Kurud Dhamtari Chhattisgarh ---- Respondents For Applicants/Appellants/ : Mr. B.P. Sharma, Advocate along with Digitally signed by REKHA SINGH -2- Defendants No.4 &5 Mr. Manay Nath Thakur, Advocate For State/respondent No.3 : Mr. Dashrath Prajapati, PL For Non-applicant No.1/ : Mr. Anurag Dayal Shrivastava, Advocate respondent No.1/plaintiff along with Mr. Goutam Khetrapal, Advocate For Respondent No.4 : Mr. Mayank Chandrakar, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 22.01.2025 1. The applicants have filed this application under Order 45 Rules 2 & 3 of the CPC seeking therein certificate as to value/fitness to prefer an appeal before the Supreme Court in the judgment and decree passed in First Appeal No.53 of 2010 dated 16.10.2024. 2. Mr. Sharma, the learned counsel appearing for the applicants would argue that the first appeal was preferred by the applicants against the judgment and decree dated 08.04.2010 passed by the learned Additional District Judge (Fast Track Court), Dhamtari(C.G.) in Civil Suit No.24-A/2007. He would contend that the appeal preferred by the applicants was dismissed on two grounds; the applicants failed to take leave of the Court according to provisions of Order 22 Rule 10 of CPC and they had no right to take defences, which were available to defendant No.1. It is stated that as the applicants were impleaded pursuant to an application moved under Order 1 Rule 10 of CPC, which was moved by the plaintiff/Non-applicant No.1 before the Trial Court, therefore, there was no requirement for the applicants/defendants No.4 & 5 to take leave of the Court according to the provisions of Order 22 Rule 10 of CPC. It is also contended that the procedural laws are handmaid of justice and they cannot overreach the substantive 3 justice. It is argued by Mr. Sharma that the issue involves a substantial question of law of general importance, therefore, the application may be allowed and a certificate of fitness may be granted. It is also contended that as the applicants were parties to the civil suit, they had the right to file a first appeal without obtaining leave of the Court and they were competent to take all defences available to defendant No.1, who sold the suit property to defendants No.4 & 5. He would lastly submit that the application may be allowed. 3. On the other hand, Mr. Shrivastava, the learned counsel appearing for respondent No.1 would oppose the submissions made by Mr. Sharma and would raise a technical objection that the application has not been filed according to the provisions of Order 45 Rules 2 & 3 of CPC. He would further submit that the applicants have not proposed substantial question(s) of law, therefore, the certificate as prayed cannot be granted to the applicants. He would also submit that the applicants argued the matter at length at the time of hearing of the first appeal and all the issues were considered and decided by this Court and this Court should not hear the application under Order 45 Rules 2 & 3 of the CPC as an appeal. He would argue that the applicants have not pleaded the grounds of appeal in the application and they have not framed substantial question(s) of law of general importance. 4. Mr. Prajapati, the learned Panel Lawyer appearing for the State and Mr. Chandrakar, learned counsel appearing for respondent No.3 would support the contentions made by Mr. Shrivastava. -4- They would submit that the application deserves to be dismissed. 5. Heard learned counsel appearing for the parties and perused the documents placed on the record. 6. Order 45 Rules 1, 2 & 3 of the CPC are reproduced herein below for ready reference:- “1. "Decree" defined -In this Order, unless there is something repugnant in the subject or context, the expression "decree" shall include a final Order. 2. Application to Court whose decree complained of-[(1)] Whoever desires to appeal the Supreme Court shall apply by petition to the Court whose decree is complained of. [(2) Every petition under sub-rule (1) shall be heard as expeditiously as possible and endeavour shall be made to conclude the disposal of the petition within sixty days from the date on which the petition is presented to the Court under sub-rule (1).] 3. Certificate as to value or fitness-[(1) Every petition shall state the grounds of appeal and pray for a certificate- (i) that the case involves a substantial question of law of general importance, and (ii) that in the opinion of the Court the said question needs to be decided by the Supreme Court.] (2) Upon receipt of such petition, the Court shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted.” 7. A bare reading of the aforesaid provisions would make it clear that if a person desires to appeal before the Supreme Court, he may prefer a petition before the Court whose decree is complained of seeking therein a certificate as to value or fitness on the ground that a case involves a substantial question of law of general importance and such question needs to be decided by the Supreme Court. 5 8. In the application moved by the applicants, the grounds and substantial question of law of general importance have not been pleaded. But the same would not make this application incompetent as according to Article 134A of the Constitution of India, an oral prayer may be made before the Supreme Court seeking such certificate. 9. Article 134A of the Constitution of India reads as under:- “134A. Certificate for appeal to the Supreme Court -Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause (1) of article 132 or clause (1) of article 133, or clause (1) of article 134- (a)may, if it deems fit so to do, on its own motion; and (b)shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of article 132, or clause (1) of article 133 or, as the case may be, sub-clause (c) of clause (1) of article 134, may be given in respect of that case.” 10.In para 2 of the application, it is stated that as per the opinion received by the applicants herein, the case involves substantial questions of law of general importance. It is nowhere stated as to how and what substantial question(s) of law of general importance are involved in the present case. 11.During the course of argument, it is argued that Order 22 Rule 10 of CPC would not attract and the applicants herein were parties to the civil suit, therefore, they had the right to take defence which was available to defendant No.1. The issue during the course of arguments was considered in the first appeal and it was answered -6- accordingly and in the opinion of this Court, it is not a substantial question of law of general importance. 12.The applicants purchased the property from defendant No.1 of the civil suit during the pendency of the lis. They were arrayed as parties by the plaintiff. A written statement was also filed but no defence with regard to bonafide purchaser was taken by them in their written statement. In the written statement, they took a plea that the sale deeds were executed, the right got confirmed in their favour and consideration was also paid. Except for the plea of a bonafide purchaser, no other plea was taken by the applicants in the written statement. 13.The other grounds raised by the applicants during the course of hearing of the First Appeal No.53 of 2010 were turned down on the ground that no leave was taken according to the provisions of Order 22 Rule 10 of CPC. 14.Having considered the above-discussed facts, in the opinion of this Court, no case is made out for the grant of a certificate of fitness. Consequently, this application fails and is hereby dismissed. Sd/- (Rakesh Mohan Pandey) Judge Rekha