Vijay . vs Nana .

Vijay Arjun Bhagat & Ors. ….Appellant(s)

VERSUS

Nana Laxman Tapkire & Ors. …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1. This appeal is directed against the final

judgment and order dated 19.07.2007 passed by

the High Court of Judicature at Bombay, Bench at

Aurangabad in Second Appeal No.274 of 2002

whereby the Single Judge of the High Court allowed Signature Not Verified

the appeal filed by respondent Nos.1 & 2 herein and Digitally signed by ANITA MALHOTRA Date: 2018.05.11 17:01:48 IST Reason: 1 set aside the judgment/order dated 16.01.2002

passed by the District Judge, Ahmednagar in R.C.A.

No.21 of 2000 and confirmed the judgment dated

10.12.1999 passed by the Civil Judge, Junior

Division, Ahmednagar in R.C.S. No.600 of 1982.

2. In order to appreciate the issues involved in

the appeal, few relevant facts need to be mentioned

hereinbelow.

3. The appellants are the plaintiffs whereas the

respondents are the defendants in a civil suit out of

which this appeal arises.

4. The appellants filed a civil suit (R.C.S. No.

600/1982) against the respondents in the Court of

Civil Judge, Junior Division, Ahmednagar for

declaration that, (1) the suit properties described in

detail in the schedule are ancestral properties of the

plaintiffs (2) the plaintiffs are the owners of the suit

properties, and (3) the suit property described in

2 schedule 1(A) is not a Trust property and be

declared as the plaintiffs’ private property.

5. Defendant No. 1 filed its written statement

whereas defendant Nos. 3 and 4 filed their joint

written statement. The defendants raised several

objections about maintainability of the suit. They

also denied plaintiffs’ claim on merits.

6. The Trial Court framed issues. Parties adduced

evidence in support of their case. By judgment and

decree dated 10.12.1999, the Trial Judge though

answered some issues in plaintiffs’ favour but

eventually dismissed the plaintiffs’ suit on merits.

7. The plaintiffs felt aggrieved and filed First

Appeal (R.C.A. No.21/2000) in the Court of District

Judge, Ahmednagar. By order dated 16.01.2002,

the first Appellate Court allowed the appeal, set

aside the judgment and decree of the Trial Court

and decreed the plaintiffs’ suit.

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8. Against the said judgment, Defendant Nos. 3 &

4 (respondent Nos. 1 & 2 herein) filed appeal being

Second Appeal No. 274/2002 in the High Court of

Bombay (Bench at Aurangabad). The High Court on

30.11.2002 admitted the second appeal on the

following substantial questions of law:

“(A) Whether the first appellate court has misread the document of partition deed(Exh.81) and therefore the finding in this behalf suffers from perversity.

(B) Whether the first appellate Court has failed to consider the appropriate provisions of Order VII Rule 3 of C.P.C.

(C) Whether the first appellate Court has erroneously relied upon Xerox copies of the mortgage deed which is not registered.

(D) Whether the first appellate Court has erroneously that the suit properties are the private properties of original plaintiffs.

(E) Whether the Civil Court has jurisdiction to decide the nature of the property which issue required to be dealt with by the Charity Commissioner.

(F) Whether the suit is barred by limitation.”

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9. By impugned judgment, the Single Judge of

the High Court allowed the appeal and, in

consequence, set aside the order passed by the

District Judge in R.C.A. No.21 of 2000 and

confirmed the judgment passed by the Civil Judge

in R.C.S. No.600 of 1982 which has given rise to

filing of the present appeal by way of special leave

by the plaintiffs before this Court.

10. The short question, which arises for

consideration in this appeal, is whether the High

Court was justified in allowing the appeal.

11. Having heard the learned counsel for the

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

are inclined to allow the appeal, set aside the

impugned judgment and remand the case to the

High Court for deciding the appeal afresh on merits

in accordance with law.

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12. In our considered view, the need to remand the

case to the High Court has occasioned because the

High Court while deciding and eventually allowing

the second appeal did not follow the mandatory

procedure prescribed under Section 100 of the Code

of Civil Procedure, 1908 (hereinafter referred to as

“the Code”).

13. In other words, we find that the manner in

which the High Court proceeded to decide the

second appeal did not appear to be in conformity

with the mandatory procedure prescribed under

Section 100 of the Code. It is clear from our

reasoning given infra.

14. 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.

6 (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 sub­section 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, not formulated by it, if it is satisfied that the case involves such question.”

15. Sub­section (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

7 question of law" involved in the appeal. Sub­section

(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. Sub­section (5) provides

that the appeal shall be heard only on the question

formulated by the High Court under sub­section (4).

In other words, the jurisdiction of the High Court to

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

8 section (5) to raise an objection that the question

framed by the High Court under sub­section (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 the respondent and,

therefore, sub­section(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

sub­section (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 under sub­section (4).

However, this power can be exercised by the High

Court only after assigning the reasons for framing

9 such additional question of law at the time of

hearing of the appeal (See C.A. Nos.9118­9119 of

2010 titled Surat Singh (Dead) vs. Siri Bhagwan

& Ors. decided on 19.02.2018).

16. Adverting to the facts of the case at hand, we

find that the High Court on 30.11.2002 admitted

the second appeal and framed six substantial

questions of law quoted supra as required under

sub­sections (1) and (4) of Section 100 of the Code

which, according to the High Court, arose in the

second appeal.

17. The High Court was, therefore, required to

decide the second appeal only on the six formulated

substantial questions of law as provided under sub­

section (5) of Section 100 of the Code.

18. We, however, find that the High Court instead

of deciding the second appeal on these six

substantial questions of law framed at the time of

10 admission allowed the appeal on two additional

substantial questions of law (see Para 10 of the

impugned judgment) which were neither framed by

the High Court at the time of admission of the

second appeal on 30.11.2002 and nor at the time of

hearing the second appeal.

19. In other words, the High Court allowed the

appeal on the two questions, which were framed in

the impugned judgment only. These two questions

read as under:

“In S.A. No.274/2002, following substantial questions of law arise:

(i) Whether the Civil Court has jurisdiction to decide the question whether a particular property is that of a Public Trust or that it is not a property of the Public Trust and belongs to individual claimant?

(ii) Whether the suit for declaration that the properties were not of the Public Trust was barred by limitation and, therefore, the impugned judgment of the first appellate Court deserves interference?”

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20. In our considered opinion, the High Court,

therefore, committed two jurisdictional errors while

deciding the second appeal.

21. First, though it rightly framed six substantial

questions of law at the time of admission of the

appeal on 30.11.2002 as arising in the case but

erred in not answering these questions.

22. As mentioned above, the High Court had the

jurisdiction to decide the second appeal only on the

six substantial questions of law framed at the time

of admitting the appeal. In other words, the

jurisdiction of the High Court to decide the second

appeal was confined only to six questions framed

and not beyond it.

23. Second, the High Court though had the

jurisdiction to frame additional question(s) by taking

recourse to proviso to sub­section(5) of Section 100

of the Code but it was subject to fulfilling the three

12 conditions, first "such questions should arise in the

appeal", second, "assign the reasons for framing the

additional questions" and third, "frame the

questions at the time of hearing the appeal".

24. In this case, the High Court committed an

error because it framed two additional questions in

the judgment itself.

25. This procedure adopted by the High Court

while deciding the second appeal caused prejudice

to the rights of the parties because the parties,

especially the appellants herein, who suffered the

adverse order, had no knowledge about framing of

the two additional questions inasmuch as they were

deprived of the opportunity to address the Court on

the two additional questions on which the impugned

judgment was founded.

26. Learned counsel for the respondents, however,

made sincere efforts to persuade the Court to

13 uphold the impugned judgment on merits but in the

light of what we have held above, it is not possible

to accept the submissions of the learned counsel for

the respondents much less the submissions urged

on the merits of the controversy.

27. We, however, make it clear that having formed

an opinion to remand the case, we have refrained

from applying our mind to the merits of the case. It

is now for the High Court to decide the appeal on

merits.

28. In the light of the foregoing discussion, the

appeal succeeds and is allowed. The impugned

judgment is set aside. The case is remanded to the

High Court for deciding the appeal afresh on merits

in accordance with law without being influenced by

any of our observations.

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29. Since the appeal is quite old, the same shall be

decided expeditiously.

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

………...................................J. [S. ABDUL NAZEER] New Delhi;

May 11, 2018

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