Ranjit Kumar Karmakar @ Dulal Karmakar vs Hari Sankar Das

CIVIL APPEAL No.3967 OF 2019 (Arising out of S.L.P.(C) No.8898 of 2015)

Ranjit Kumar Karmakar @ Dulal Karmakar ….Appellant(s)

VERSUS

Hari Shankar Das ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed against the final judgment

and order dated 24.09.2014 passed by the High Court

of Tripura at Agartala in R.S.A. No.42 of 2007 whereby Signature Not Verified Digitally signed by ASHOK RAJ SINGH Date: 2019.04.16 16:51:38 IST the High Court allowed the second appeal filed by the Reason: 1 respondent herein, set aside the judgment/decree

dated 24.04.2007 passed by the Additional District

Judge, West Tripura, Agartala in T.A. No.34 of 2006

and restored the judgment/decree dated 05.04.2006

passed by the Civil Judge(Junior Division) No.2,

Agartala, West Tripura in T.S. No.103 of 2004.

3. A few facts need mention hereinbelow for the

disposal of this appeal, which involves a short point.

4. The appellant is the plaintiff and the respondent

is the defendant of the civil suit out of which this

appeal arises.

5. The appellant filed a civil suit (T.S.No.103 of

2004) against the respondent in the Court of Civil

Judge (Junior Division). The suit was for declaration

of his right, title and interest in the suit land, for

confirmation of his possession over the suit land and

lastly for permanent injunction. The respondent

contested the suit.

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6. The Trial Court, by judgment/decree dated

05.04.2006 dismissed the suit. The plaintiff (appellant

herein) felt aggrieved and filed first appeal (T.A.

No.34/2006) before the Additional District Judge,

West Tripura, Agartala. By judgment dated

24.04.2007, the First Appellate Court allowed the

appeal and decreed the suit.

7. The defendant (respondent herein) felt aggrieved

and filed second appeal in the High Court of Tripura.

By impugned order, the High Court allowed the appeal

and set aside the judgment of the first Appellate Court

and restored the judgment/decree of the Trial Court

which has given rise to filing of this appeal by way of

special leave to appeal by the plaintiff in this Court.

8. Heard Ms. Malini Poduval, learned counsel for

the appellant and Mr. Rituraj Biswas, learned counsel

for the respondent.

9. Having heard the learned counsel for the parties

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

3 constrained to allow the appeal and while setting aside

the impugned order, remand the case to the High

Court for rehearing of the second appeal afresh on

merits in accordance with law.

10. The need to remand the case to the High Court

has arisen because on perusal of the impugned order,

we notice that the High Court though admitted the

defendant's second appeal by framing as many as six

substantial questions of law for its hearing but

practically none of the substantial questions of law

were answered either way by the High Court while

allowing the second appeal by the impugned order.

11. In other words, though the High Court admitted

the second appeal on six questions but did not answer

any of them on merits and instead went into

discussion on all other issues, which were not the

subject matter of the six questions framed and allowed

the second appeal as if it was deciding the first appeal.

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12. Section 100 (5) of the Code of Civil Procedure,

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

terms, provides that the second appeal shall be heard

only on the substantial question(s) of law framed by

the High Court under Section 100 (4) of the Code.

Therefore, the High Court has to confine its inquiry to

the question(s) framed and not beyond it.

13. The proviso to sub­section (5) of Section 100 of

the Code also enables the respondent to raise a plea at

the time of hearing that the questions framed either do

not arise in the case or the questions framed are not

the substantial questions of law. At the same time, the

High Court has the jurisdiction to frame any additional

question(s) of law but this the High Court can do by

assigning the reasons.

14. Since the High Court failed to answer the six

questions (set out in Para 2 of impugned order) either

way on their respective merits and yet proceeded to

5 allow the second appeal, such order, in our view, is

not legally sustainable and has to be set aside.

15. In view of the foregoing discussion, the appeal

succeeds and is accordingly allowed. The impugned

order is set aside. The case is remanded to the High

Court for deciding the second appeal, out of which this

appeal arises, afresh on its merits in accordance with

law uninfluenced by any observations made in the

impugned order and in this order because having

formed an opinion to remand the case, we have not

expressed any opinion on the merits of the

controversy.

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

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

New Delhi;

April 16, 2019.

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