Supreme Court

Apparaju Malhar Rao Vs. Tula Venkataiah (dead) and Ors.

MANU/SC/1073/2017

01.09.2017

Property

High Court cannot proceed to hear a second appeal without formulating the substantial question of law

Respondent No. 1-Plaintiff filed a suit for perpetual injunction against the Defendants restraining them from interfering with the peaceful possession and enjoyment of the Plaintiff in respect of suit land. Defendants filed written statement and denied the claim of the Plaintiff. It was contended that, the Plaintiff is not the owner and possessor of suit land. The Trial Court decreed the suit in favour of the Plaintiff. Aggrieved by the said judgment/decree, the Defendants filed first appeal before the Additional District Judge. By judgment/decree, Additional District Judge allowed the first appeal, set aside the judgment/decree of the trial Court and dismissed the suit. Against the said judgment/decree, the Plaintiff filed second appeal before the High Court. The High Court, by the impugned judgment allowed the appeal and set aside the judgment/decree passed by the First Appellate Court and restored the judgment/decree passed by trial Court.

Supreme Court allows the appeal and remands the case to the High Court for deciding the second appeal afresh. The reasons to remand the case to the High Court has occasioned because the High Court while allowing the second appeal filed by the Plaintiff (Respondent No. 1 herein) did not frame any substantial question of law as is required to be framed at the time of admission of the second appeal and proceeded to allow the appeal filed by the Plaintiff.

A three Judge Bench of this Court in Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs. had examined the scope of Section 100 of the Code of the Civil Procedure, 1908/CPC laid down the proposition of law that, the High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty case on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the CPC. In the absence of any substantial question of law arising in appeal, the same merits dismissal in limine on the ground that the appeal does not involve any substantial question of law within the meaning of Section 100 of the CPC.

Perusal of the impugned order shows that, no such question was formulated except to note the submissions of learned Counsel for the Appellant that, it so arises but not beyond that as to whether it actually arises and, if so, what is that question. In view the law laid down in the case of Santosh Hazari, Supreme Court is of view that, impugned order is not legally sustainable. Impugned order is set aside. The case is remanded to the High Court for deciding the second appeal afresh in accordance with law keeping in view the law laid down in the case of Santosh Hazari. Appeal allowed.

Relevant

Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs. MANU/SC/0091/2001
: (2001) 3 SCC 179

Tags : Question of law Formulation Second appeal

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