Apparaju Malhar Rao vs Bandi Venkateshwarlu

Apparaju Malhar Rao ….Appellant(s)

VERSUS

Tula Venkataiah @ Venkat Rao (Dead) & Ors. …Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) This appeal is filed by defendant No.1 against

the final judgment and order dated 30.12.2005

passed by the High Court of Judicature of Andhra

Pradesh at Hyderabad in Second Appeal No. 743 of

2004 whereby the High Court allowed the second

appeal filed by the plaintiff and set aside the

Signature Not Verified judgment and decree dated 24.03.2004 passed by Digitally signed by ASHA SUNDRIYAL Date: 2017.09.01 16:54:36 IST Reason: 1 the Additional District Judge (FTC), Karimnagar in

A.S. No. 34 of 1999 and confirmed the judgment

and decree dated 26.03.1999 passed by the

Principal Junior Civil Judge, Karimnagar in O.S. No.

338 of 1994.

2) We herein set out the facts, in brief, to

appreciate the issue involved in this appeal.

3) The appellant herein is defendant No.1,

respondent No.1 is the plaintiff (since dead) and

respondent No. 2 is defendant No.3 (son of late

defendant No.2) and respondent No.3 is the wife of

defendant No.2. Defendant No.2 died during the

pendency of the case before the High Court and his

legal representative is respondent No.3 herein.

4) Respondent No.1-Plaintiff filed a suit for

perpetual injunction against the defendants

restraining them from interfering with the peaceful

possession and enjoyment of the plaintiff in respect

2 of land measuring 5 guntas and 7 sq. yds.

(hereinafter referred to as “suit land”) in Survey

No.1128/A situated at Mankanmathota in

Karimnagar.

5) On 20.01.1995, the defendants filed written

statement and denied the claim of the plaintiff. It

was, inter alia, contended that the plaintiff is not the

owner and possessor of suit land.

6) The Trial Court framed the issues and parties

adduced their evidence. By judgment/decree dated

26.03.1999, the Trial Court decreed the suit in

favour of the plaintiff.

7) Aggrieved by the said judgment/decree, the

defendants filed first appeal being Appeal Suit No.34

of 1999 before the Additional District Judge (FTC),

Karimnagar (A.P.). By judgment/decree dated

24.03.2004, the Additional District Judge allowed

3 the first appeal, set aside the judgment/decree of

the Trial Court and dismissed the suit.

8) Against the said judgment/decree, the plaintiff

filed second appeal being S.A. No.743 of 2004 before

the High Court.

9) The High Court, by the impugned judgment

dated 13.12.2005, allowed the appeal and set aside

the judgment/decree dated 24.03.2004 passed by

the First Appellate Court in A.S. No.34 of 1999 and

restored the judgment/decree dated 26.03.1999

passed by the Trial Court in O.S. No.338 of 1994

which had decreed the plaintiff’s suit.

10) Felt aggrieved, defendant No.3 has filed this

appeal by way of special leave before this Court.

11) Heard Mr. D. Mahesh Babu, learned counsel

for the appellant. Nobody appears for the

respondents.

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12) Having heard the learned counsel for the

appellant and on perusal of the record of the case,

we are constrained to allow the appeal and while

setting aside the impugned order, remand the case

to the High Court for deciding the second appeal

afresh in accordance with law as indicated below.

13) The reasons to remand the case to the High

Court has occasioned because the High Court while

allowing the second appeal filed by the plaintiff

(respondent No.1 herein) did not frame any

substantial question of law as is required to be

framed at the time of admission of the second

appeal and proceeded to allow the appeal filed by

the plaintiff.

14) A three Judge Bench of this Court in Santosh

Hazari vs. Purushottam Tiwari (Deceased) by

L.Rs., (2001) 3 SCC 179 had examined the scope of

Section 100 of the Code of the Civil procedure, 1908

5 (hereinafter referred to as “the Code”). Justice R.C.

Lahoti (as His Lordship then was) speaking for the

Bench laid down the following proposition of law in

Para 9:

“9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty case on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait,(1997) 5 SCC 438 Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 413 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722.)”

15) His Lordship then in Paras 10 to 14 succinctly

explained the meaning of the words “substantial

question of law” and “question of law” and held that

in order to admit the second appeal, what is

required to be made out by the appellant being sine

qua non for exercise of powers under Section 100 of

the Code, is existence of “substantial question of

law” arising in the case so as to empower the High

6 Court to admit the appeal for final hearing by

formulating such question. In the absence of any

substantial question of law arising in appeal, the

same merits dismissal in limine on the ground that

the appeal does not involve any substantial

question of law within the meaning of Section 100 of

the Code.

16) Perusal of the impugned order shows that no such

question was formulated except to note the

submissions of learned counsel for the appellant

that it so arises but not beyond that as to whether it

actually arises and, if so, what is that question.

17) In the light of foregoing discussion and keeping in

view the law laid down in the case of Santosh

Hazari (supra), we are of the considered view that

the impugned order is not legally sustainable and

thus liable to be set aside.

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18) As a result, the appeal succeeds and is allowed.

Impugned order is set aside. The case is remanded

to the High Court for deciding the second appeal

afresh in accordance with law keeping in view the

law laid down in the case of Santosh Hazari

(supra).

………...................................J. [R.K. AGRAWAL]

……..................................J. [ABHAY MANOHAR SAPRE] New Delhi;

September 01, 2017

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