Rameshwar Dayal Mangla @ Ramesh Chand vs Harish Chand & Anr

CIVIL APPEAL NOS.1694-1695 OF 2009 (Arising out of SLP (C) Nos.17497-17498 of 2008)

Rameshwar Dayal Mangala @ Ramesh Chand ..Appellant

Versus

Harish Chand & Anr. ..Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. These appeals are directed against the judgment of a learned Single Judge of the

Punjab and Haryana High Court disposing of an appeal filed under Section 100 of the

Code of Civil Procedure, 1908 (in short `CPC').

3. The respondent as plaintiff has filed a suit for mandatory injunction. The

appellant filed written statement refuting the assertions by the plaintiff. Replication

was filed by the respondent. The trial court framed 11 issues and learned Subordinate Judge, 1st class, Palwal, decided issue nos. 1, 2 and 10 in favour of the respondent

decreeing the suit in mandatory injunction. An appeal was preferred by the appellant

which was decided by learned Additional District Judge, Faridabad, and was allowed.

Questioning the judgment and decree passed by the First Appellate Court, second

appeal was filed which was allowed by the impugned judgment. It is to be noted that

cross objection was also filed in terms of Order 41 Rule 22 CPC. Though many points

have been urged in support of the appeal, the primary stand is that the second appeal

was allowed without formulating any substantial question of law. Learned counsel for

the respondent submitted that though question of law was not formulated, after

analysing evidence and applicable principles of law the High Court has allowed this

appeal.

4. Section 100 of CPC deals with "Second Appeal". The provision reads as follows:

"Section 100 - Second Appeal: (1) Save as otherwise

expressly provided in the body of this Code or by any other law for

the time being in force, an appeal shall lie to the High Court from

every decree passed in appeal by any Court subordinate to the High

Court, if the High Court is satisfied that the case involves a

substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed

ex parte.

(3) In an appeal under this Section, the memorandum of appeal shall

precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is

involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the

respondent shall, at the hearing of the appeal, be allowed to argue that the

case does not involve such question:

Provided that nothing take away or abridge the power of the

question of law, not formulated by it, if it is satisfied that the case involves

such question."

5. A perusal of the impugned judgment passed by the High Court does not show

that any substantial question of law has been formulated or that the second appeal was

heard on the question, if any, so formulated. That being so, the judgment cannot be

maintained, which is set aside and remitted back to the High Court for proceeding in

the matter in accordance with law and in terms of observations made herein.

6. In Ishwar Dass Jain v. Sohan Lal (2000 (1) 5CC 434), this Court in para 10, has

stated thus:

"10. Now under Section 100 CPC, after the 1976 Amendment, it is

essential for the High Court to formulate a substantial question of

law and it is not permissible to reverse the doing so."

7. Yet again in Roop Singh v. Ram Singh (2000 (3) SCC 708), this Court has

expressed that the jurisdiction of a High Court is confined to appeals involving

substantial question of law. Para 7 of the said judgment reads:

"7. It is to be reiterated that under Section 100 CPC of the High Court to entertain a second appeal is confined only to such appeals

which involve a substantial question of law and it does not confer

any jurisdiction on the High Court to interfere with pure questions of

fact while exercising its jurisdiction under section 100 CPC."

8. The position has been reiterated in Kanhaiyalal and Ors. v. Anupkumar and Ors.

(2003 (1) SCC 430), Mathakala Krishnaiah v. V. Rajagopal (2004 (10) 5CC 676), Smt.

Ram Sakhi Devi v. Chhatra Devi & Ors. (JT 2005 (6) SC 167), Sasikumar & Ors. v.

Kunnath Chellapan Nair & Ors. (2005 (12) SCC 588), Gian Dass v. The Gram Panchayat

Village Sunner Kalan & Ors. (2006 (6) 5CC 271), Shah Mansukhlal Chhaganlal (d)

through Lrs. v. Gohil Amarsing Govindbhai (d) through Lrs. (2006 (13) SCALE 99).

9. The appeals are allowed and the impugned order is set aside. The matter is

remitted to the High Court to rehear the Second Appeal, keeping in view the position in

law set out above. There will be no order as to costs.

........................................J. (Dr. ARIJIT PASAYAT)

........................................J. (ASOK KUMAR GANGULY) New Delhi, March 18, 2009