Rajendra Lalitkumar Agrawal vs Ratna Ashok Muranjan

CIVIL APPEAL No.1331 OF 2019 (Arising out of S.L.P.(C) No. 23299 of 2018)

Shri Rajendra Lalitkumar Agrawal ….Appellant(s)

VERSUS

Smt. Ratna Ashok Muranjan & Anr. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is directed against the final judgment

and order dated 06.08.2018 of the High Court of

Judicature at Bombay in Second Appeal No. 44 of Signature Not Verified

2017 whereby the High Court dismissed the second Digitally signed by ANITA MALHOTRA Date: 2019.01.31 16:58:04 IST Reason:

appeal filed by the appellant herein.

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3. In order to appreciate the short controversy

involved in this appeal, few relevant facts need

mention hereinbelow.

4. The appellant is the plaintiff whereas the

respondents are the defendants in the civil suit out of

which this appeal arises.

5. The appellant filed a civil suit against the

respondents for specific performance of the contract in

relation to the suit property. The said suit was based

on an agreement dated 08.08.1984. The respondents

filed their written statement and denied the appellant's

claim. The Trial Court by judgment/decree dated

05.07.2004 decreed the appellant’s suit and passed a

decree for specific performance of the contract against

the respondents.

6. The respondents felt aggrieved and filed first

appeal before the District Judge, Pune. By

judgment/decree dated 10.11.2016, the first Appellate

Court allowed the respondents’ (defendants’) appeal

2 and dismissed the suit. The appellant (plaintiff) felt

aggrieved and filed second appeal before the High

Court.

7. By impugned order, the High Court dismissed the

second appeal holding that the appeal does not involve

any substantial question of law as is required to be

made out under Section 100 of the Code of Civil

Procedure, 1908 (hereinafter referred to as “the Code”)

which has given rise to filing of the present appeal by

way of special leave by the plaintiff in this Court.

8. The short question, which arises for

consideration in this appeal, is whether the High Court

was justified in dismissing the plaintiff's second appeal

on the ground that it does not involve any substantial

question(s) of law within the meaning of Section 100 of

the Code.

9. Heard learned counsel for the parties.

10. Having heard the learned counsel for the parties

and on perusal of the record of the case, we are

3 inclined to allow the appeal and while setting aside the

impugned order remand the case to the High Court for

deciding the second appeal on merits in accordance

with law after framing appropriate substantial

question(s) of law arising in the case.

11. Having perused the record and the judgments of

the Trial Court, first Appellate Court and the

impugned order, we are of the considered view that the

High Court was not right in holding that the appeal

does not involve any substantial question of law within

the meaning of Section 100 of the

Code. In our view, the appeal did involve the

substantial question of law and the same, therefore,

should have been framed at the time of admission of

the second appeal as provided under Section 100 (4) of

the Code for its final hearing. Indeed Section 100 (5) of

the Code provides that the appeal shall be heard only

on the substantial question of law framed by the High

Court under Section 100 (4) of the Code.

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12. It cannot be disputed that the interpretation of

any terms and conditions of a document (such as the

agreement dated 08.08.1984 in this case) constitutes a

substantial question of law within the meaning of

Section 100 of the Code. It is more so when both the

parties admit the document.

13. As mentioned above, since the interpretation of

documents constitutes the substantial question of law,

the High Court should have first framed appropriate

substantial question(s) arising in the case especially

on the questions in relation to the true intent, rights

and obligations arising from Clauses 3, 5 and 15 of the

agreement dated 08.08.1984 in the context of

pleadings and the reversing findings of the two Courts

below and then should have called upon the

respondents to reply to the questions framed keeping

in view its jurisdiction under Section 100(5) of the

Code and its proviso.

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14. In addition, the High Court also could have

framed questions on the issues, which are material for

grant or refusal of specific performance keeping in

view the requirements of Section 16 of the Specific

Relief Act, pleadings of the parties, and the reversing

findings of the two Courts below on such issues with a

view to find out as to which finding is more preferable.

15. From the reading the impugned order, we find

that, on one hand, the High Court went on interpreting

the terms of the document after hearing the argument

of both sides (see appearance of both parties through

lawyers) and on the other hand, in conclusion, held

that it does not involve any substantial question of

law. It virtually, therefore, decided the second appeal

bipartite like the first appeal without keeping in view

the scope of its jurisdiction conferred by Section 100

(4) and (5) of the Code. In our view, the approach of

the High Court while deciding the second appeal was

6 not in conformity with the requirements of Section 100

of the Code.

16. Learned counsel for the respondents(defendants),

however, vehemently argued that the findings of the

High Court, which are of affirmance, do not call for

any interference which rightly resulted in dismissal of

the suit on material issues but, in our view, it is now

for the High Court to examine the issue afresh on

merits after framing the substantial question(s) of law.

We, therefore, express no opinion on the merits of the

issues urged.

17. In the light of the foregoing discussion, we refrain

from entering into the merits of the case having formed

an opinion to remand the case and while allowing the

appeal and setting aside the impugned order remand

the case to the High Court with a request to admit the

appeal and frame appropriate substantial question(s)

of law which arise(s) in the case in terms of Section

100 (4) of the Code and then decide the second appeal

7 on merits by answering the question(s) framed as per

Section 100 (5) of the Code in accordance with law

without being influenced by any of our observations on

merits.

18. The appeal is accordingly allowed. The impugned

order is set aside.

………...................................J. [ABHAY MANOHAR SAPRE]

....……..................................J. [DINESH MAHESHWARI]

New Delhi;

January 31, 2019.

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