LATEST UPDATE

(2018)2 SCeJ 1414

SUPREME COURT OF INDIA

11 September, 2018

Civil Procedure Code, 1908, Section 100 (5)  - So long as no substantial question of law was framed, the High Court had no jurisdiction to examine the said issue in its second appellate jurisdiction -  In other words, the High Court having framed only one question, which did not pertain to issue of ownership of the suit land, had no jurisdiction to examine the issue of ownership - It was not permissible in the light of Section 100 (5) of the Code, which empowers the High Court to decide the appeal only on the question framed and not beyond it -  High Court could invoke its powers under proviso to sub­section (5) of Section 100 and frame one or two additional questions, as the case may be, even at the time of hearing of the second appeal -  It would have enabled the High Court to examine the issue of ownership of the suit land in its correct perspective. It was, however, not done by the High Court - High Court, while examining the question framed, also cursorily touched the ownership issue which, in our opinion, the High Court could not have done for want of framing of any substantial question of law on the ownership issue -  High Court also failed to see that the issue of res judicata and the issue of ownership were independent issues and both the issues had to be examined independent of each other on their respective merits - It was, however, possible only after framing of substantial questions on both the issues as provided under Section 100(4) and (5) of the Code -  This was, however, not done High courts judgment is not legally sustainable and, therefore, it has to be set aside – Matter remanded

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• Civil Procedure Code, 1908 (V of 1908) S. 100, 115 - Convert revision petition into second appeal - Grounds for preferring regular second appeal under section 100 CPC would be different from the grounds for revision petition under section 115 CPC and substantial questions of law have also to be framed in regular second appeal in compliance with section 100 CPC although there is no such requirement in the case of revision petition filed under section 115 CPC - Accordingly, prayer of counsel for the petitioner for converting the instant revision petition into regular second appeal also can not be  accepted. (173) P.L.R. 5
• Civil Procedure Code, 1908 (V of 1908) S. 100, Order 41, Rule 1(a) - Appeal can only  be heard on the ground on which a second appeal can be heard under Section 100 of the Code, that is, on a substantial question of law - Order of remand by the lower appellate Court - RSA as presented is patently not maintainable - It also seems without doubt that a regular second appeal can be quite easily converted into an SAO without presenting any jurisdictional difficulty by permitting the defendants/appellants to convert the RSA into an SAO since the Court Fee stands paid probably more than what is required to be affixed on an SAO - The second appeal presented would be treated as an SAO - In case the Court Fee paid on the RSA is more than what is required to be affixed in presentation of an SAO, it is found just and fair that the difference would be refunded to the appellants in accordance with law for which necessary certificate be issued - To file fresh paper book in the form of SAO. (179) P.L.R.
• Civil Procedure Code, 1908 (V of 1908) S. 100, Order XLI Rule 5(3) -  Whether the High Court without admitting the second appeal could have entertained IA  filed seeking interim relief - Solely because the Court has the jurisdiction to pass an ex parte order, under Order XLI Rule 5(3),  it does not empower it not to formulate the substantial question of law for the purpose of admission, defer the date of admission and pass an order of stay or grant an interim relief. Held, Submission of the learned senior counsel for the appellant is that Order XLI Rule 5 confers jurisdiction on the High Court while dealing with an appeal under Section 100 CPC to pass an ex parte order and such an order can be passed deferring formulation of question of law in grave situations. Be it stated, for passing an ex parte order the Court has to keep in mind the postulates provided under sub-rule (3) of Rule 5 of Order XLI. It has to be made clear that the Court for the purpose of passing an ex parte order is obligated to keep in view the language employed under Section 100 CPC. It is because formulation of substantial question of law enables the High Court to entertain an appeal and thereafter proceed to pass an order and at that juncture, needless to say, the Court has the jurisdiction to pass an interim order subject to the language employed in Order XLI Rule 5(3). It is clear as day that the High Court cannot admit a second appeal without examining whether it raises any substantial question of law for admission and thereafter, it is obliged to formulate the substantial question of law. Solely because the Court has the jurisdiction to pass an ex parte order, it does not empower it not to formulate the substantial question of law for the purpose of admission, defer the date of admission and pass an order of stay or grant an interim relief. That is not the scheme of CPC after its amendment in 1976 and that is not the tenor of precedents of this Court.       (2016)3 P.L.R.SC 853
• Civil Procedure Code, 1908 (V of 1908) S. 100, Order XLIII, Rule 1(4) S. 104 - Regular  appeal under Section 100 of CPC is not maintainable against an order of remand passed by the lower Appellate Court and the appellant was required to file an appeal against the order of remand passed by the lower Appellate Court as provided under Order XLIII Rule 1(u) of the CPC. (176) P.L.R.
• Civil Procedure Code, 1908 (V of 1908) S. 100, Order XLIII, Rule 1(4) S. 104 - Regular  appeal under Section 100 of CPC is not maintainable against an order of remand passed by the lower Appellate Court and the appellant was required to file an appeal against the order of remand passed by the lower Appellate Court as provided under Order XLIII Rule 1(u) of the CPC. (176) P.L.R.
• Civil Procedure Code, 1908 (V of 1908) S. 100 - High Court has not yet admitted the matter - No substantial question of law has been formulated as it could not have been when the appeal has not been admitted - We say so, as appeal under Section 100 CPC is required to be admitted only on substantial question/questions of law -  It cannot be formal admission like an appeal under Section 96 CPC - That is the fundamental imperative - It is peremptory in character, and that makes the principle absolutely cardinal - Civil Procedure Code, 1908 (V of 1908) S. 96.  (2016)3 P.L.R.SC 853
• Civil Procedure Code, 1908 (V of 1908) S. 100 - Question as to whether the gali was a private gali or a public gali, is essentially a question of fact and not a question of law, therefore, this aspect of the matter having been examined by the two courts concurrently against the appellant, it cannot be said today that the holding of the gali not being a public gali and being a private gali is a substantial question of law.  (178) P.L.R. (Del.)
• Civil Procedure Code, 1908 (V of 1908) S. 100 - Second Appeal - Appeal shall lie to the High Court from an appellate decree only if the High Court is satisfied that the case involves a substantial question of law - It further mandates that the memorandum of appeal precisely states the substantial question of law involved in the appeal - If such an appeal is filed, the High Court while admitting or entertaining the appeal must record its satisfaction and formulate the substantial question of law involved in the appeal - The appeal shall then be heard on the questions so formulated and the respondent shall be allowed to argue only on those substantial questions of law - However, proviso to this section empowers the court to hear on any substantial question of law not formulated after recording reasons - Casts a mandate on the High Court to first formulate substantial question of law at the time of admission of the appeal - In other words, a duty is cast on the High Court to formulate substantial question of law before hearing the appeal - Since the same has not been done, the impugned judgment is vitiated in law. (S.C.)(177) P.L.R.
• Civil Procedure Code, 1908 (V of 1908) S. 100 - Second Appeal - Second Appeal, in exceptional circumstances, can be entertained on pure questions of fact - There is no prohibition for the High Court to entertain the Second Appeal even on question of fact where factual findings are found to be  perverse. (S.C.)(177) P.L.R.