Supreme Court of India
RAMESHWAR DAYAL MANGALA @ RAMESH CHANDversusHARISH CHAND & ANR.
- Citation
- 2009 INSC 362
- Decided
- 18 March 2009
- Bench
- ARIJIT PASAYAT
Holding
A second appeal under Section 100 CPC is valid only if the High Court formulates a substantial question of law and hears the appeal on that question; otherwise the appeal is void.
Summary
The plaintiff filed a suit for mandatory injunction which was decreed in his favour by the trial court. The decree was appealed first to an Additional District Judge, who allowed the appeal, and subsequently a second appeal was filed under Section 100 of the CPC before the Punjab & Haryana High Court. The High Court entertained the second appeal and allowed it without formulating any substantial question of law or hearing the parties on such a question. The Supreme Court held that Section 100 expressly requires the High Court to identify a substantial question of law, formulate it, and hear the appeal on that question; the High Court’s failure to do so meant it had no jurisdiction to decide the appeal. Consequently, the Supreme Court set aside the High Court’s order, allowed the appeals, and remitted the matter back to the High Court to rehear the second appeal in accordance with the statutory requirements.
Issues considered
- Whether the Punjab & Haryana High Court had jurisdiction to entertain a second appeal under Section 100 of the Code of Civil Procedure, 1908, without formulating a substantial question of law and hearing the appeal on that question.
Legislation cited
Subjects
Section 100 CPCsecond appealsubstantial question of lawmandatory injunctionjurisdictioncivil procedurehigh court
Judgment
[2009] 4 S.C.R. 505
RAMESHWAR DAYAL MANGALA @ RAMESH CHAND A
V.
HARISH CHAND & ANR.
Civil Appeal Nos.1694-1695 of 2009
I
MARCH 18, 2009
B
(DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY,
JJ)
Code of civil procedure, 1908:
s. 100 - Second appeal - Decided by High Court without c
formulating a substantial question of law and without hearing
it on such question - Matter remitted to High Court for decision
in accordance with Jaw.
The instant appeals were filed challenging the
decision of the High Court deciding a second appeal, D
arising out of a decree for mandatory injunction, without
formulating any substantial question of law or hearing the
appeal on such question.
Allowing the appeals and remitting the matter to the
E
High Court, the Court
HELD: A perusal of the judgment passed by the High
- Court does not show that any substantial question of law
has been formulated or that the second appeal was heard
on any such question. That being so, the judgment of the F
High Court cannot be maintained, and is set aside. The
High Court would proceed in the matter in accordance
with law and in terms of observations made in the
judgment of this Court. [para 5] (508-D-E]
.; /shwar Dass Jain v. Sohan Lal 2000 (1) 5CC 434 and G
Roop Singh v. Ram Singh 2000 (3) SCC 708 - relied on.
Kanhaiyalal and Ors. v. Anupkumar and Ors. 2003 (1)
SCC 430; Mathakala Krishnaiah v. V Rajagopal 2004 (10)
505 H
506 SUPREME COURT REPORTS [2009] 4 S.C.R.
A 5CC 676; Smt. Ram Sakhi Devi v. Chhatra Devi & Ors. JT .
2005 (6) SC 167; Sasikumar & Ors. v Kunnath Che/Japan
Nair & Ors. 2005 (12) SCC 588; Gian Dass v. The Gram
Panchayat Village Sunner Kalan & Ors. 2006 (6) 5CC 271;
Shah Mansukhlal Chhaganlal (d) through Lrs. v. Gohil
B Amarsing Govindbhai (d) through Lrs. 2006 (13) SCALE 99 -
referred to.
Case Law Reference
2000 (1) sec 434 relied on para 6
c 2000 (3) sec 108 relied on para 7
2003 (1) sec 430 referred to para 8
2004 (10) sec 676 referred to para 8
JT 200S (6) SC 167 referred to para 8
D
2oos (12) sec S88 referred to para 8
2006 (6) sec 211 referred to para 8
2006 (13) SCALE 99 referred to para 8
E CIVILAPPELATE JURISDICTION :Civil Appeal Nos.1694-
1695 of 2009
From the Judgement and Order dated 25.03.2008/
F
28.05.08 of the Hon'ble High Court of Punjab & Haryana at
Chandigarh in R.S.A. No. 3067of1985 & Cross Objection No.
25-C of 2006 and in Review Petition No. 30-C of 2008 in RSA.
-
No. 3067 of 1985 and Cross Objection No. 25-C of 2006.
Parmanand Gaur, for the Appellant.
Manoj Swarup, Akshat Goel, Ajay Kumar, for the
G Respondents. ..
The Judgement of the Court was delivered by
DR. ARIJIT PASAYAT, J.
1. Leave granted.
H
RAMESHWAR DAYAL MANGALA@ RAMESH CHAND 507
V. HARISH CHAND & ANR. [DR. ARIJIT PASAYAT, J.]
2. These appeals are directed against the judgment of a A
learned Single Judge of the Punjab and Haryana High Court
disposing of an appeal filed under Section 100 of the Code of
Civil Procedure, 1908 (in short 'CPC').
3. The respondent as plaintiff has filed a suit for mandatory
8
injunction. The appelant filed written statement refuting the
assertions by the plaintiff. Replication was filed by the
)
respondent. The trial court framed 11 issues and learned
Subordinate Judge, 1st class, Palwal, decided issue nos. 1, 2
and 10 in favour of the respondent decreeing the suit in
mandatory injunction. An appeal was preferred by the appelant C
which was decided by learned Additional District Judge,
Faridabad, and was alowed. Questioning the judgment and
decree passed by the First Appel ate Court, second appeal was
filed which was alowed by the impugned judgment. It is to be
noted that cross objection was also filed in terms of Order 41 D
Rule 22 CPC. Though many points have been urged in support
of the appeal, the primary stand is that the second appeal was
alowed -without formulating any substantial question of law.
Learned counsel for the respondent submitted that though
question of law was not formulated, after analysing evidence E
and applicable principles of law the High Court has a lowed this
appeal.
4. Section 100 of CPC deals with "Second Appeal". The
provision reads as folows: F
"Section 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 shal lie to
the High Court from every decree passed in appeal by
any Court subordinate to the High Court, if the High Court G
is satisfied that the case involves a substantial question of
law.
(2) An appeal may lie under this section from an appelate
decree passed ex parte.
H
508 SUPREME COURT REPORTS [2009] 4 S.C.R.
A (3) In an appeal under this Section, the memorandum of •
appeal shal 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 shal formulate
B that question.
(5) The appeal shal be heard on the question so formulated
and the respondent shal, at the hearing of the appeal . be
alowed to argue that the case does not involve such
c question:
Provided that nothing take away or abridge the power of
the question of law, not formulated by it, if it is satisfied
that the case involves such question."
5. A perusal of the impugned judgment passed by the High
D
Court does not show that any substantial question of law has
been formulated or that the second appeal was heard on the
question, if any, so formulated. That being so, the judgment
cannot be maintained, which is set aside and remitted back to
the High Court for proceeding in the matter in accordance with
E law and in terms of observations made herein.
6. In lshwar Dass Jain v. Sohan Lal (2000 (1) SCC 434),
this Court in para 10, has stated thus:
"10. Now under Section 100 CPC, after the 1976
F Amendment, it is essential for the High Court to formulate
a substantial question of law and it is not permissible to
reverse the doing so."
7. Yet again in Roop Singh v. Ram Singh (2000 (3) SCC
G
708), this Court has expressed that the jurisdiction of a High
Court is confined to appeals involving substantial question of
law. Para 7 of the said judgment reads:
"7. It is to be reiterated that under Section 100 CPC of the
High Court to t:::ntertain a second appeal is confined only
H to such appeal~ which involve a substantial question of
RAMESHWAR DAYAL MANGALA@ RAMESH CHAND 509
V. HARISH CHAND & ANR. [DR. ARIJIT PASAYAT, J.]
"' law and it does not confer any jurisdiction on the High A
Court to interfere with pure questions of fact while exercising
its jurisdiction under section 100 CPC."
8. The position has been reiterated in Kanhaiyalal and Ors.
v. Anupkumar and Ors. (2003 (1) SCC 430), Mathakala
Krishnaiah v. V. Rajagopal (2004 (10) 5CC 676), Smt. Ram 8
Sakhi Devi v. Chhatra Devi & Ors. (JT 2005 (6) SC 167),
Sasikumar & Ors. v. Kunnath Chelapan Nair & Ors. (2005 (12)
SCC 588), Gian Dass v. The Gram Panchayat Vilage Sunner
Kalan & Ors. (2006 (6) 5CC 271 ), Shah Mansukhlal Chhaganlal
(d) through Lrs. v. Gohil Amarsing Govindbhai (d) through Lrs. C
(2006 (13) SCALE 99).
9. The appeals are alowed and the impugned order is set
aside. The matter is remitted to the High Court to rehear the
Second Appeal, keeping in view the position in law set out D
above. There wil be no order as to costs.
R.P. Appeals allowed.
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