Judgment:
Joshi A.H., J.
1. This is an appeal by father who has suffered a decree for payment of maintenance. Operative part of the decree reads as follows:
In terms of prayer Clauses (ii) and (in) below plaint para 13, it is ordered that defendant shall pay Rs. 6,000/p.m. to the plaintiff from the date of filing of the suit i.e. 4/7/2003 till she attains majority.
2. Father's appeal against this decree has been dismissed by the first Appellate Court. The father is before this Court in the present second appeal.
3. The question agitated before this Court as substantial question of law is as follows:
The judgment of the first Appellate Court which is narrative in nature and is not adjudicative, since the Appellate Court has failed to formulate the questions which fell for determination, which exercise is a mandate of law under Rule 31 of Order XXXXI of the Civil Procedure Code.
4. Failure to comply with Rule 31 of Order XXXXI C.P.C. is undoubtedly a substantial question of law.
5. The question which this Court has to inevitably consider is:
Whether the judgment and decree upheld by the first Appellate Court, is likely to be reversed if the appeal is admitted on the said substantial question of law indicated by the appellant?
6. The background that the judgment of the Appellate Court is not happily formatted would ordinarily warrant scrutiny in the second appeal.
7. Pivotal-question of fact which arises in this appeal without which the point framed by this Court in paragraph No. 5 cannot be answered is as to:
Whether the respondent daughter is entitled for maintenance?
8. This Court, however, cannot be oblivious to certain glaring facts namely:
(a) Due to death of mother of applicant in 1999, the applicant Ku. Vaidehi was in custody and care of her maternal grandfather, in the background of the allegation that the appellant had contracted second marriage and begot children in said 2nd wedlock.
(b) The appellant-father has disputed the story of 2nd marriage and children etc., however his version did not find favour with the trial Court.
(c) For considerable time i.e. almost until filing of suit by the daughter for maintenance, the father did not file petition for her custody.
(d) Though later on he filed petition for custody, it was not seriously pursued and is reported to be dismissed in default.
(e) In the petition for custody, father did not make attempts to secure visiting facility and rights.
9. The above narrated facts and circumstances do go to show that right of maintenance of the daughter has crystallized.
10. Any glaring error in appreciation of evidence and fact finding is not shown. Therefore it cannot be reasonably visualised seen that fact finding or any other illegality going to the root of the case has crept in. The decree for payment of maintenance therefore is not be seen to be likely to be reversed, as no other question arises in present appeal either of fact or of law.
11. Therefore, if at all the appeal is to be admitted, it is solely on limited question of compliance of Rule 31 of Order XXXXI, and even slightest possibility reversal of decree under appeal is not seen.
12. In the aforesaid background this Court has to consider the collective effect of Section 103 and Section 99 of the C.P.C.
13. It shall be within the powers as well the duty of the High Court under Section 103 of C.P.C. to decide some undecided questions of facts if those arc shown arising. No questions of fact are shown undecided while passing impugned judgment and decree. Therefore, there are no reasons coming forward as to why the High Court should admit/entertain a second appeal under Section 100 C.P.C. for scrutiny and adjudication of undecided facts.
14. The decree under appeal otherwise results in doing justice between the parties. In this situation a second appeal need not, rather ought not to be admitted just because an error of procedural nature as to. manner of rendering a judgment has crept in which however does not result in doing injustice. The spirit of Section 99 C.P.C. cannot be overlooked, even while entertaining and deciding a second appeal, it needs to be effectively enforced, as an unescapable rule and doctrine of law and dictate for justice.
15. Therefore, appellant has no case for admission too. In the result, this Court finds that the appeal has no merit, and the same is dismissed at the stage of admission hearing.