Surat Singh (Dead) vs Siri Bhagwan

CIVIL APPEAL Nos.9118-9119 OF 2010

Surat Singh (Dead) ….Appellant(s)

VERSUS

Siri Bhagwan & Ors. …Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. These appeals are directed against the final

judgment and order dated 13.12.2006 passed by

the High Court of Punjab & Haryana at Chandigarh

in Civil Regular Second Appeal No.382 of 1992

whereby the High Court allowed the appeal filed by

respondent No.1 herein, set aside the judgment

dated 13.11.1986 of the District Judge, Narnaul in Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2018.02.20 Civil Appeal No.83 of 1984 and reversed the 15:28:10 IST Reason:

judgment dated 16.05.1984 of the Trial Court in

1 Civil Suit No. 315 of 1981. By order dated

22.01.2007, the High Court also dismissed the

application (C.M. No.448-C of 2007 in RSA

No.382/1992) filed by the appellant herein for

recalling the judgment dated 13.12.2006.

2. In order to appreciate the short issue involved

in the appeals, few relevant facts need mention

infra.

3. One Murti Devi (since dead) and her daughter

Smt. Bholi Devi filed Civil Suit No.315/81 in the

Court of Sub-Judge, IInd Class, Rewari against one

Siri Bhagwan (respondent No.1 herein). The suit

was for a declaration that the decree obtained by

Siri Bhagwan against Murti Devi on 11.11.1980 in

Civil Suit No. 638/1980 in relation to the land

measuring 37 Kanals 14 Marlas situated at Village

Alampur, Tahsil Rewari, District Mahendergarh be

declared null and void and not binding on the

plaintiffs because it was obtained by defendant

No.1-Siri Bhagwan by playing fraud and

2 misrepresentation on the plaintiff-Murti Devi by

taking advantage of her illiteracy and poverty. The

defendant No.1-Siri Bhagwan contested the suit.

4. The Trial Court, by judgment/decree dated

16.05.1984 in C.S. No.315 of 1981 dismissed the

suit. Felt aggrieved, the plaintiff-Murti Devi, filed

first appeal (C.A. No.83 of 1984) before the District

Judge. By Judgment/decree dated 13.11.1986, the

first Appellate Court allowed the appeal, set aside

the judgment/decree of the Trial Court and decreed

the plaintiff's suit.

5. Felt aggrieved, defendant No. 1- Siri Bhagwan

filed Second Appeal under Section 100 of the Code

of Civil Procedure, 1908 (hereinafter referred to as

“the Code”) in the High Court of Punjab & Haryana

out of which these appeals arise. During the

pendency of the second appeal, the appellant

herein-Surat Singh purchased the suit land from

Murti Devi vide registered sale deed dated

30.07.1988 for Rs.80,000/-.

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6. The appellant-Surat Singh then filed an

application under Order 1 Rule 10 read with Order

22 Rule 10 of the Code praying therein to become a

party respondent along with original

plaintiff/respondent No.1 in the second appeal as a

subsequent purchaser of the suit land from the

plaintiff/respondent No.1, pending litigation.

7. By order dated 04.01.1989, Surat Singh’s

application was allowed and he was allowed to

become a party-respondent in the second appeal. In

the meantime, Murti Devi expired. Since one

daughter of Murti Devi was already on record as

plaintiff No.2 and the other daughter was on record

as proforma defendant No. 2, the Lis involved in the

appeal continued.

8. By impugned judgment dated 13.12.2006, the

Single Judge of the High Court allowed the second

appeal, set aside the judgment/decree of the first

Appellate Court and restored that of the Trial Court,

which resulted in dismissal of the suit filed by Murti

4 Devi and her daughter. Since the impugned

judgment dated 13.12.2006 was passed without

hearing the appellant herein(respondent No.4 in the

High Court), he filed an application under Section

151 read with Order 21 Rule 21 of the Code for

recalling the judgment dated 13.12.2006. By order

dated 22.01.2007, the High Court dismissed the

application. Aggrieved by both the judgment/order

dated 13.12.2006 and 22.01.2007, the appellant

has filed these appeals by way of special leave in

this Court.

9. Therefore, the short question, which arises for

consideration in these appeals, is whether the High

Court was justified in allowing the second appeal

filed by defendant No. 1-Siri Bhagwan (respondent

No.1 herein) and thereby was justified in dismissing

the plaintiff's suit by restoring the judgment/decree

of the Trial Court.

10. Having heard the learned counsel for the

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

5 are constrained to allow the appeals, set aside the

impugned judgment and remand the case to the

High Court for deciding the second appeal afresh on

merits in accordance with law.

11. The reasons for remanding the case to the

High Court are more than one as set out

hereinbelow.

12. First, we find that the High Court allowed the

second appeal filed by respondent No. 1 herein

without hearing respondent No.4 before it, i.e.,

(appellant herein). In other words, the High Court

allowed the second appeal after hearing the

appellant of second appeal only and not respondent

No.4 of the second appeal, who was absent at the

time of hearing.

13. When respondent No. 4 (appellant herein) filed

an application under Section 151 read with Order

41 Rule 21 of the Code praying for an opportunity of

hearing, his application was dismissed by the High

Court.

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14. In our opinion, the High Court erred in

deciding the second appeal much less allowing it

without hearing the contesting respondent No.4

(appellant herein) and also erred in dismissing his

application filed under Section 151 read with Order

41 Rule 21 of the Code for rehearing of the second

appeal.

15. Having regard to the nature of controversy

involved in the case and further in the light of the

grounds on which the application for rehearing of

the appeal was founded, the High Court should

have granted one opportunity of hearing to

respondent No. 4 for opposing the second appeal

and for that purpose should have restored the

second appeal for its re-hearing on merits in

accordance with law.

16. Second and more important, this Court cannot

countenance the manner in which the High Court

decided the second appeal on merits.

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17. We find that the judgment of the first

Appellate Court, which was impugned in the

second appeal, was delivered on 13.11.1986

whereas the second appeal was registered in 1992

(S.A. No.382/92) and the impugned judgment was

delivered on 13.12.2006.

18. The High Court as it seems did not frame any

substantial question of law while admitting the

appeal as per sub-section(4) of Section 100 though

it remained pending for a long time. However, the

High Court proceeded to allow the second appeal

and while doing so framed the substantial question

of law in the concluding para of the impugned

judgment. It reads as under:

“The substantial question of law would, therefore, be whether the finding of the learned lower appellate court terming the transfer on the basis of a consent decree as a gift in the absence of any pleadings was perverse or not? The question of law stands answered in the foregoing discussion.

In view of this, the appeal is allowed and the judgment of the learned lower appellate court dated 13.11.1986 is set aside.”

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19. In our considered opinion, the manner and the

procedure adopted by the High Court while allowing

the second appeal are against the procedure laid

down in Section 100.

20. Section 100 of the Code reads as under:

“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 in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law formulated by it, if it is satisfied that the case involves such question.”

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21. Sub-section (1) of Section 100 says that the

second appeal would be entertained by the High

Court only if the High Court is "satisfied" that the

case involves a "substantial question of law". Sub-

section (3) makes it obligatory upon the appellant to

precisely state in memo of appeal the "substantial

question of law" involved in the appeal. Sub-section

(4) provides that where the High Court is satisfied

that any substantial question of law is involved in

the case, it shall formulate that question. In other

words, once the High Court is satisfied after hearing

the appellant or his counsel, as the case may be,

that the appeal involves a substantial question of

law, it has to formulate that question and then

direct issuance of notice to the respondent of the

memo of appeal along with the question of law

framed by the High Court. Sub-section (5) provides

that the appeal shall be heard only on the question

formulated by the High Court under sub-section (4).

In other words, the jurisdiction of the High Court to

10 decide the second appeal is confined only to the

question framed by the High Court under

sub-section(4). The respondent, however, at the

time of hearing of the appeal is given a right under

sub-section (5) to raise an objection that the

question framed by the High Court under

sub-section (4) does not involve in the appeal. The

reason for giving this right to the respondent for

raising such objection at the time of hearing is

because the High Court frames the question at the

admission stage which is prior to issuance of the

notice of appeal to the respondent. In other words,

the question is framed behind the back of

respondent and, therefore, sub-section(5) enables

him to raise such objection at the time of hearing

that the question framed does not arise in the

appeal. The proviso to sub-section (5), however,

also recognizes the power of the High Court to hear

the appeal on any other substantial question of law

which was not initially framed by the High Court

11 under sub-section (4). However, this power can be

exercised by the High Court only after assigning the

reasons for framing such additional question of law

at the time of hearing of the appeal.

22. Adverting to the facts of this case at hand, we

are at a loss to understand as to how the High

Court while passing a final judgment in its

concluding para could frame the substantial

question of law for the first time and simultaneously

answered the said question in appellant’s favour.

Obviously, the learned Judge must have done it by

taking recourse to sub-section (4) of Section 100 of

the Code.

23. Here is the case where the High Court was

under a legal obligation to frame the substantial

question at the time of admission of the appeal after

hearing the appellant or/and his counsel under

sub-section (4) of Section 100 of the Code, but the

High Court did it while passing the final judgment

in its concluding para.

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24. Such novel procedure adopted by the High

Court, in our considered opinion, is wholly contrary

to the scheme of Section 100 of the Code and

renders the impugned judgment legally

unsustainable.

25. In our considered opinion, the High Court had

no jurisdiction to frame the substantial question at

the time of writing of its final judgment in the

appeal except to the extent permitted under

sub-section (5). The procedure adopted by the High

Court, apart from it being against the scheme of

Section 100 of the Code, also resulted in causing

prejudice to the respondents because the

respondents could not object to the framing of

substantial question of law. Indeed, the respondents

could not come to know on which question of law,

the appeal was admitted for final hearing.

26. In other words, since the High Court failed to

frame any substantial question of law under

sub-section(4) of Section 100 at the time of

13 admission of the appeal, the respondents could not

come to know on which question of law, the appeal

was admitted for hearing.

27. It cannot be disputed that sub-section (5) gives

the respondents a right to know on which

substantial question of law, the appeal was

admitted for final hearing. Sub-section (5) enables

the respondents to raise an objection at the time of

final hearing that the question of law framed at the

instance of the appellant does not really arise in the

case.

28. Yet, the other reason is that the respondents

are only required to reply while opposing the second

appeal to the question formulated by the High Court

under sub-section (4) and not beyond that. If the

question of law is not framed under sub-section (4)

at the time of admission or before the final hearing

of the appeal, there remains nothing for the

respondent to oppose the second appeal at the time

of hearing. In this situation, the High Court will

14 have no jurisdiction to decide such second appeal

finally for want of any substantial question(s) of law.

29. The scheme of Section 100 is that once the

High Court is satisfied that the appeal involves a

substantial question of law, such question shall

have to be framed under sub-section(4) of Section

100. It is the framing of the question which

empowers the High Court to finally decide the

appeal in accordance with the procedure prescribed

under sub-section (5). Both the requirements

prescribed in sub-sections (4) and (5) are, therefore,

mandatory and have to be followed in the manner

prescribed therein. Indeed, as mentioned supra, the

jurisdiction to decide the second appeal finally

arises only after the substantial question of law is

framed under sub-section (4). There may be a case

and indeed there are cases where even after framing

a substantial question of law, the same can be

answered against the appellant. It is, however,

15 done only after hearing the respondents under

sub-section (5).

30. If, however, the High Court is satisfied after

hearing the appellant at the time of admission that

the appeal does not involve any substantial question

of law, then such appeal is liable to be dismissed in

limine without any notice to the respondents after

recording a finding in the dismissal order that the

appeal does not involve any substantial question of

law within the meaning of sub-section (4). It is

needless to say that for passing such order in

limine, the High Court is required to assign the

reasons in support of its conclusion.

31. It is, however, of no significance, whether the

respondent has appeared at the time of final hearing

of the appeal or not. The High Court, in any case,

has to proceed in accordance with the procedure

prescribed under Section 100 while disposing of the

appeal, whether in limine or at the final hearing

stage.

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32. It is a settled principle of rule of interpretation

that whenever a statute requires a particular act to

be done in a particular manner then such act has to

be done in that manner only and in no other

manner. (See- Interpretation of Statutes by G.P.

Singh, IXth Edition page 347 and Baru Ram vs.

Parsanni (Smt.), AIR 1959 SC 93).

33. The aforesaid principle applies to the case at

hand because, as discussed above, the High Court

failed to follow the procedure prescribed under

Section 100 of the Code while allowing the second

appeal and thus committed a jurisdictional error

calling for interference by this Court in the

impugned judgment.

34. While construing Section 100, this Court in

the case of Santosh Hazari vs. Purushottam

Tiwari (Deceased) by L.Rs., (2001) SCC 179

succinctly explained the scope, the jurisdiction and

what constitutes a substantial questions of law

under Section 100 of the Code.

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35. It is, therefore, the duty of the High Court to

always keep in mind the law laid down in Santosh

Hazari (supra) while formulating the question and

deciding the second appeal.

36. In the light of the foregoing discussion, we

cannot sustain the impugned judgment which, in

our view, does not conform to the requirements of

Section 100 of the Code and hence calls for

interference in this appeal.

37. The appeals thus deserve to be allowed. They

are accordingly allowed. The impugned judgment is

set aside. The case is remanded to the High Court

for deciding the second appeal afresh on merits. The

High Court will now frame proper substantial

question(s) of law after hearing the appellant and if

it finds that any substantial question(s) of law arises

in the case, it will formulate such question(s) and

accordingly hear the appeal on the question(s)

framed finally in accordance with law.

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38. We, however, make it clear that we have not

applied our mind to the merits of the controversy

involved in the appeals, but only formed an opinion

to remand the case due to the infirmity noticed in

the manner in which the second appeal was

decided. The High Court will, therefore, decide the

second appeal uninfluenced by any of our

observations made in this order.

39. Since the matter is quite old, we request the

High Court to decide the second appeal

expeditiously preferable within six months from the

date of receipt of this judgment.

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

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

New Delhi;

February 19, 2018

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