Without framing substantial question of law, High Court have no jurisdiction in second appeal- SC

When no substantial question of law was framed, High Court had no jurisdiction to examine the issue  in its second appellate jurisdiction- Supreme Court

ABCAUS Case Law Citation:
ABCAUS 2515 (2018) 09 SC

Important Case Laws Cited/relied upon by the parties:
Sanatosh   Hazari  vs. Purushottam   Tiwari  [(2001) 3 SCC 179] 

Surat Singh vs. Siri Bhagwan & Ors. [(2018) 4 SCC 562]

The instant appeal was filed by the plaintiffs against the final judgment and order passed by the  High  Court  in  Second Appeal whereby the Single Judge allowed the second appeal filed by defendant and  set  aside the  judgment  and decree passed by the Additional Subordinate Judge, and  dismissed  the  suit  filed  by the appellants herein.

The three plaintiffs claiming to be the members of one family filed a civil suit against the  defendants for a declaration and permanent injunction in relation to the land  (suit land).

By Judgment and decree, the Trial Court decreed the plaintiffs’ suit. It was held that the  plaintiffs were able to prove their ownership over the suit land on the basis of the documents filed by them; that the plaintiffs were in possession  of the suit land; that they were, therefore, entitled to claim a declaration of their title over the suit land as its owners so also were entitled to claim permanent injunction against the defendants restraining them from interfering in their (plaintiffs’) peaceful possession over the suit land.

The Appellate Court dismissed the defendants’ appeal and affirmed the judgment and decree passed by the Trial Court.

The defendants pursued the matter further and filed second appeal in the High Court at Madras. The High Court admitted the second appeal. By impugned judgment, the High Court allowed the appeal and set aside the judgment and decree of the two courts below and, in consequence, dismissed the suit giving rise to filing of the present appeal by way of special leave in this Court by the plaintiffs.

The short question, which arises for consideration in this appeal, is whether the High Court was justified in allowing the defendants’ appeal and, in consequence, dismissing the plaintiffs’ suit which was decreed by the two Courts below.

The Hon’ble Supreme Court observed that Section 100 of the Code of Civil Procedure, 1908 (the Code), empowers the High Court to decide the second appeals and this is no more res integra.

It was observed that Sub­section (1) of Section 100 of the Code 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. 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.

The Hon’ble Court pointed out that 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 sub­section (5) to raise an objection that the question framed by the High Court under sub­section (4) does not involve in the appeal.

The Supreme Court explained that if the question is framed behind the back of respondent, 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 such additional question of law at the time of hearing of the appeal.

It was observed that the High Court had admitted the second appeal by framing only one substantial question of law, namely, whether the first Appellate Court was justified in dismissing the defendants’ first appeal by taking into consideration one earlier litigation in relation to the suit land, which was not between the same parties.

The Hon’ble Supreme Court opined that the High Court failed to see that even if the said question was answered in defendants’ favour, yet the plaintiffs’ suit could not have been dismissed much less in its entirety unless the High Court had further examined the main issue of ownership of the plaintiffs over the suit land, which was decided by the two Courts below in plaintiffs’ favour on merits.

According to the Apex Court, it was necessary for the High Court to have proceeded to examine the issue relating to the plaintiffs’ title over the suit land, which was decided by the two Courts in plaintiffs’ favour holding that the plaintiffs were able to prove their title over the suit land on the basis of documentary evidence whereas the defendants failed to prove their title though asserted.

Secondly, the High Court committed another error when it failed to frame any substantial question of law on the issue of the plaintiffs’ ownership over the suit land.

The Hon’ble Supreme Court opined that 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.

According to the Supreme Court, the High Court could have invoked its powers under proviso to sub­section (5) of Section 100 of the Code and framed 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.

The Hon’ble Supreme Court opined that the 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. Apart, the High Court also failed to see that the issue of res judicata and the issue of ownership were independent issues and the decision on one would not have answered the other one. In other words, 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 in this case.

Hon’ble Supreme Court, in view of the above opined that the impugned judgment of the High Court was not legally sustainable and, therefore, it had to be set aside.

Accordingly,  the appeal was allowed. The impugned order was set aside. The case was remanded to the High Court for deciding the second appeal afresh on merits in accordance with law by properly framing the substantial question(s) of law on the question of ownership of the plaintiffs over the suit land and then to examine as to whether the findings on the said question recorded by two Courts suffer from any error(s) or not. 

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