RANJIT KUMAR KARMAKAR @ DULAL KARMAKARversusHARI SHANKAR DAS

150                       [2019]
               SUPREME COURT     6 S.C.R. 150
                              REPORTS                      [2019] 6 S.C.R.


A        RANJIT KUMAR KARMAKAR @ DULAL KARMAKAR
                                        v.
                            HARI SHANKAR DAS
                         (Civil Appeal No. 3967 of 2019)
B                               APRIL 18, 2019
                     [ABHAY MANOHAR SAPRE AND
                       DINESH MAHESHWARI, JJ.]
             Code of Civil Procedure, 1908 – s.100 – Second appeal –
C     Appellant-plaintiff filed suit for declaration of his right, title and
      interest in the suit land, for confirmation of his possession over the
      suit land and lastly for permanent injunction – Suit dismissed by
      the Trial Court – Aggrieved, plaintiff filed first appeal, which was
      allowed – In second appeal, High Court set aside the judgment of
      first appellate Court and restored the judgment of the Trial Court –
D
      On appeal, held: High Court though admitted the defendant’s
      second appeal by framing six substantial questions of law for its
      hearing but none of the substantial questions were answered –
      Instead, High Court discussed all other issues, which were not the
      subject matter of the six questions framed – s.100(5) CPC provides
E     that the second appeal shall be heard only on the substantial
      question(s) of law framed by the High Court u/s.100(4) of the
      Code – Thus, case remanded to the High Court for deciding second
      appeal afresh.
            Allowing the appeal, the Court
F           HELD: 1. The High Court though admitted the second
      appeal by framing six substantial questions of law but did not
      answer any of them on merits and instead went into discussion
      on all other issues, which were not the subject matter of the six
      questions framed and allowed the second appeal as if it was
G     deciding the first appeal. [Para 11][152-H; 153-A]
            2. Section 100 (5) of the Code of Civil Procedure, 1908, in
      express terms, provides that the second appeal shall be heard
      only on the substantial question(s) of law framed by the High
      Court under Section 100 (4) of the Code. Therefore, the High
H
                                       150
   RANJIT KUMAR KARMAKAR v. HARI SHANKAR DAS                                151


Court has to confine its inquiry to the question(s) framed and not          A
beyond it. [Para 12][153-A-B]
      3. The proviso to sub-section (5) of Section 100 of the
Code also enables the respondent to raise a plea at the time of
hearing that the questions framed either do not arise in the case
or the questions framed are not the substantial questions of law.           B
At the same time, the High Court has the jurisdiction to frame
any additional question(s) of law but this the High Court can do
by assigning the reasons. [Para 13][153-C]
      4. Since the High Court failed to answer the six questions
either way on their respective merits and yet proceeded to allow            C
the second appeal, such order, is not legally sustainable and has
to be set aside. The case is remanded to the High Court for
deciding the second appeal, out of which this appeal arises, afresh
on its merits. [Paras 14, 15][153-D-E]
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3967                  D
of 2019.
      From the Judgment and Order dated 24.09.2014 of the High
Court of Tripura at Agartala in R.S.A. No. 42 of 2007.
     Ms. Malini Poduval, Ms. Babita Sant, Reepak Kansal, Pravir
Choudhary, Advs. for the Appellant.                                         E
       Rituraj Biswas, Ms. Sujaya Bardhan, Chandra Prakash, Advs.
for the Respondent.
      The Judgment of the Court was delivered by
      ABHAY MANOHAR SAPRE, J.                                               F
      1. Leave granted.
       2. This appeal is filed against the final judgment and order dated
24.09.2014 passed by the High Court of Tripura at Agartala in R.S.A.
No.42 of 2007 whereby the High Court allowed the second appeal filed
by the respondent herein, set aside the judgment/decree dated 24.04.2007    G
passed by the Additional District Judge, West Tripura, Agartala in T.A.
No.34 of 2006 and restored the judgment/decree dated 05.04.2006 passed
by the Civil Judge(Junior Division) No.2, Agartala, West Tripura in T.S.
No.103 of 2004.
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152              SUPREME COURT REPORTS                               [2019] 6 S.C.R.


A           3. A few facts need mention hereinbelow for the disposal of this
      appeal, which involves a short point.
             4. The appellant is the plaintiff and the respondent is the defendant
      of the civil suit out of which this appeal arises.
             5. The appellant filed a civil suit (T.S.No.103 of 2004) against the
B     respondent in the Court of Civil Judge (Junior Division). The suit was
      for declaration of his right, title and interest in the suit land, for confirmation
      of his possession over the suit land and lastly for permanent injunction.
      The respondent contested the suit.
             6. The Trial Court, by judgment/decree dated 05.04.2006 dismissed
C     the suit. The plaintiff (appellant herein) felt aggrieved and filed first appeal
      (T.A. No.34/2006) before the Additional District Judge, West Tripura,
      Agartala. By judgment dated 24.04.2007, the First Appellate Court
      allowed the appeal and decreed the suit.
            7. The defendant (respondent herein) felt aggrieved and filed
D     second appeal in the High Court of Tripura. By impugned order, the
      High Court allowed the appeal and set aside the judgment of the first
      Appellate Court and restored the judgment/decree of the Trial Court
      which has given rise to filing of this appeal by way of special leave to
      appeal by the plaintiff in this Court.
E          8. Heard Ms. Malini Poduval, learned counsel for the appellant
      and Mr. Rituraj Biswas, learned counsel for the respondent.
             9. Having heard the learned counsel for the parties and on perusal
      of the record of the case, we are constrained to allow the appeal and
      while setting aside the impugned order, remand the case to the High
F     Court for rehearing of the second appeal afresh on merits in accordance
      with law.
             10. The need to remand the case to the High Court has arisen
      because on perusal of the impugned order, we notice that the High Court
      though admitted the defendant’s second appeal by framing as many as
G     six substantial questions of law for its hearing but practically none of the
      substantial questions of law were answered either way by the High
      Court while allowing the second appeal by the impugned order.
             11. In other words, though the High Court admitted the second
      appeal on six questions but did not answer any of them on merits and
H     instead went into discussion on all other issues, which were not the subject
    RANJIT KUMAR KARMAKAR v. HARI SHANKAR DAS                                   153
             [ABHAY MANOHAR SAPRE, J.]

matter of the six questions framed and allowed the second appeal as if it       A
was deciding the first appeal.
       12. Section 100 (5) of the Code of Civil Procedure, 1908
(hereinafter referred to as “the Code”), in express terms, provides that
the second appeal shall be heard only on the substantial question(s) of
law framed by the High Court under Section 100 (4) of the Code.                 B
Therefore, the High Court has to confine its inquiry to the question(s)
framed and not beyond it.
       13. The proviso to sub-section (5) of Section 100 of the Code also
enables the respondent to raise a plea at the time of hearing that the
questions framed either do not arise in the case or the questions framed        C
are not the substantial questions of law. At the same time, the High
Court has the jurisdiction to frame any additional question(s) of law but
this the High Court can do by assigning the reasons.
       14. Since the High Court failed to answer the six questions (set
out in Para 2 of impugned order) either way on their respective merits          D
and yet proceeded to allow the second appeal, such order, in our view, is
not legally sustainable and has to be set aside.
       15. In view of the foregoing discussion, the appeal succeeds and
is accordingly allowed. The impugned order is set aside. The case is
remanded to the High Court for deciding the second appeal, out of which         E
this appeal arises, afresh on its merits in accordance with law uninfluenced
by any observations made in the impugned order and in this order because
having formed an opinion to remand the case, we have not expressed
any opinion on the merits of the controversy.

Ankit Gyan                                                    Appeal allowed.
                                                                                F




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