Nek Pal vs Nagar Palika Parishad

REPORTABLE 2024 INSC 574 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S).8038-8039 OF 2024 (ARISING OUT OF S.L.P (CIVIL) NO(S).11728-11729/2018)

NEK PAL & ORS. APPELLANT(S)

VERSUS

NAGAR PALIKA PARISHAD & ORS. RESPONDENT(S)

J U D G M E N T

ABHAY S. OKA, J.

1. Leave granted.

2. Our attention is invited to the impugned judgment of the

High Court in a Second Appeal under Section 100 of the Code of

Civil Procedure, 1908 (for short, “the CPC”). Following is the

relevant part of the impugned judgment:

“Since no substantial question of law was formulated at the time of admission of the appeal on 30.5.2003, hence having heard the matter partially and during the course of arguments, in the presence of learned Counsels of both the parties, this Court confined itself to adjudicate the following substantial questions of law:

1. Whether the alleged transaction of the disputed property was void ab initio being the violation of Section 7 of Hindu Public Religious Institution (Prevention of Dissipation of Properties) Act, 1962.

2. Whether the property was owned by Dera Signature Not Verified Baba Dargah Singh and was of the religious Digitally signed by charitable nature. If it is so, whether it could have been transferred by the self ASHISH KONDLE Date: 2024.08.03 15:24:45 IST Reason:

claimed manager Jaswinder Singh in the nature and manner it was transferred?

1 3. Whether both the lower courts have rightly decreed the suit on the basis of Khasra, Khatauni and ‘Kisan Bahi’ which were issued by the revenue officials in favour of the lease holders.”

3. The aforesaid paragraph indicates that at the time of

admitting the second appeal under Section 100 of the CPC,

substantial questions of law were not formulated. Unless

substantial questions of law are formulated at the time of

admission of the appeal or any time subsequent thereto, a second

appeal cannot be finally heard. The reason is that a second

appeal can be finally heard only on a substantial question of

law formulated earlier. In fact, the act of finally hearing a

second appeal without framing any substantial question of law is

itself illegal. There is nothing on record to show that the

High Court formulated the substantial questions of law and gave

an opportunity to the parties to argue on the basis of those

substantial questions of law. All that the High Court says is

the Court has confined itself to three substantial questions of

law. The High Court did not put the rival Advocates to the

notice before the commencement of hearing that it was proposing

to hear the appeal on specific substantial questions of law. The

High Court could have framed substantial questions of law and

heard the appeal after few days so that the Advocates had a

notice that the appeal will be heard on specific substantial

questions of law.

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4. Therefore, the procedure followed by the High Court is

completely illegal and contrary to Section 100 of the CPC. Only

on this ground, we set aside the impugned judgment dated 13th

November, 2017 and restore Second Appeal Nos.34/2003 and 48/2003

to the file of the High Court of Uttarakhand at Nainital. All

contentions of the parties on merits of the Second Appeals are

kept open.

5. A copy of this order shall by forwarded by the Registry to

the Registrar (Judicial) of the High Court of Uttarakhand. The

Registrar (Judicial) of the High Court shall list the restored

Second Appeals before the roster Bench on 27th August, 2024. The

parties, who are appearing today, shall be under an obligation

to appear before the High Court on that date. The High Court

need not issue a notice to those parties.

6. If the High Court wants to frame substantial questions of

law as indicated in the impugned judgment or if the High Court

desires to frame additional substantial questions of law, it is

open for the High Court to do so. After completing the said

exercise, the High Court shall fix a date for hearing of the

Second Appeals taking into consideration the fact that the

Second Appeals are 21 years old.

7. We also clarify that till the date of the impugned judgment

if any interim relief was operative in the restored Second

Appeals, the same shall continue to operate.

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8. The Civil Appeals are partly allowed on the above terms.

9. Pending applications, including the application for

impleadment, stand disposed of accordingly.

..........................J. (ABHAY S. OKA)

..........................J. (AUGUSTINE GEORGE MASIH)

NEW DELHI;

JULY 26, 2024.

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