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Thursday, October 29, 2015

whether the High Court was justified in passing the impugned judgment without formulating any substantial question of law

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.8909 OF 2015
                    Arising out of SLP(C) No.1120 of 2015

ASHOK RANGNTH NAGAR                       ….APPELLANT(S)

                                   VERSUS

SHRIKANT GOVINDRAO SANGVIKAR     …..RESPONDENT(S)

WITH

C.A.No.8910/2015 (Arising out of SLP(C) No.1121/2015)
C.A.No.8911/2015 (Arising out of SLP(C) No.1122/2015)


                                  O R D E R
Leave granted.
2.    We have heard Mr. Vatsalya Vigya, learned counsel  appearing  for  the
appellant  and  Ms.  Chandrakant  Giri,  learned  Amicus  Curiae   for   the
respondents and  perused  the  common  impugned  judgment  dated  13.02.2014
passed by the Bombay High Court.
3.    The short question that arises for consideration in these  appeals  is
as to whether the High Court was justified in passing the impugned  judgment
without formulating any substantial question of law.
4.    The  facts  of  the  case  in  a  nutshell  are  that  the  plaintiff-
respondents  filed  a  civil  suit  for  perpetual  injunction  against  the
defendant-appellant seeking a decree restraining  him  from  alienating  the
suit property.
5.    After a full-fledged trial, the suit was dismissed.   As  against  the
judgment and decree passed by the trial court, the  plaintiff  preferred  an
appeal before the District Judge which was also dismissed by  upholding  the
judgment of  the  trial  court.   Aggrieved  by  the  same,  the  plaintiff-
respondents filed second appeals in the High Court.  The High Court  without
formulating substantial question of law heard the appeals and  reversed  the
judgment and decree passed by the trial  court  as  also  of  the  appellate
court.  Consequently,  the  suit  was  decreed.   Hence,  these  appeals  by
special leave.
6.    Without expressing any opinion on the merits of the case  prima  facie
we are of the view that the matter need to be remitted to the High Court  to
decide the second appeal afresh.  The High Court, in fact, failed to  notice
the mandate of Section 100 CPC while deciding a  second  appeal.   Time  and
again this Court has held that unless  the  High  Court  is  satisfied  that
there is a substantial question of law, jurisdiction under  Section  100  of
the Code cannot be exercised.
7.    Although not necessary but to remind  ourselves  the  law  settled  by
this Court we may refer some of the decisions hereinafter.
8.    In the case of Shiv Cotex vs. Tirgun Auto Plast  (P)  Ltd.,  (2011)  9
SCC 678, against the concurrent judgment and decree of  the  two  courts,  a
Second Appeal was filed before the High Court, which  has  been  allowed  by
the Single Judge and the suit had been  remanded  to  the  trial  court  for
fresh decision in accordance  with  law.   While  deciding  the  appeal  and
reversing the judgment  and  decree  of  the  two  courts,  the  High  Court
proceeded without formulating any substantial question  of  law.   On  these
facts, this Court observed that

“11. The judgment of  the  High  Court  is  gravely  flawed  and  cannot  be
sustained for more than one reason. In the  first  place,  the  High  Court,
while deciding  the  second  appeal,  failed  to  adhere  to  the  necessary
requirement of Section 100 CPC and interfered with the  concurrent  judgment
and decree of the courts below without formulating any substantial  question
of law. The formulation of substantial question of law is a must before  the
second appeal is heard and finally disposed  of  by  the  High  Court.  This
Court has reiterated and restated the legal  position  time  out  of  number
that formulation of a substantial question of law is a  condition  precedent
for entertaining and deciding a second  appeal.  Recently,  in  Umerkhan  v.
Bismillabi decided by us on 28-7-2011, it has been held  that  the  judgment
of the High Court is rendered patently illegal, if a second appeal is  heard
and  the  judgment  and  decree  appealed  against   is   reversed   without
formulating a substantial question of law.”


9.    In the case of Umerkhan vs. Bismillabi, (2011) 9  SCC  684,  the  High
Court had allowed the second appeal and set aside the  judgment  and  decree
of the First Appellate Court.  While allowing the appeal and  reversing  the
judgment of  the  Appellate  Court,  no  substantial  question  of  law  was
formulated.  On these facts, this Court observed as under:

“11. In our view, the very jurisdiction of  the  High  Court  in  hearing  a
second appeal is founded on the formulation of  a  substantial  question  of
law. The judgment of the High Court  is  rendered  patently  illegal,  if  a
second appeal is heard and judgment and decree appealed against is  reversed
without formulating a substantial question  of  law.  The  second  appellate
jurisdiction of the High  Court  under  Section  100  is  not  akin  to  the
appellate jurisdiction under Section 96 of the Code;  it  is  restricted  to
such substantial question or questions  of  law  that  may  arise  from  the
judgment and decree appealed against. As a matter of law,  a  second  appeal
is entertainable by the  High  Court  only  upon  its  satisfaction  that  a
substantial question of law is involved in the matter  and  its  formulation
thereof. Section 100 of the Code provides that the second  appeal  shall  be
heard on the question so formulated. It is, however, open to the High  Court
to reframe substantial question of law or frame substantial question of  law
afresh or hold that no substantial question of law is involved at  the  time
of hearing the second appeal but reversal of the judgment and decree  passed
in appeal by a court subordinate to it in  exercise  of  jurisdiction  under
Section 100 of the Code is  impermissible  without  formulating  substantial
question of law and a decision on such question.
12. This Court has been bringing to  the  notice  of  the  High  Courts  the
constraints of Section 100 of the Code and the mandate of the law  contained
in Section 101 that  no  second  appeal  shall  lie  except  on  the  ground
mentioned in  Section  100,  yet  it  appears  that  the  fundamental  legal
position concerning jurisdiction of the  High  Court  in  second  appeal  is
ignored and overlooked time and again. The present appeal  is  unfortunately
one of such matters where the High Court interfered with  the  judgment  and
decree of the first appellate court in total disregard of  the  above  legal
position.”


10.   In the case of Rameshwar Dayal Mangala v. Harish Chand, (2009)  4  SCC
800, a suit for mandatory injunction was filed and the same was  decreed  by
the trial court.  Challenging the judgment and decree of  the  trial  court,
first appeal was preferred, which was eventually allowed.   Questioning  the
judgment and decree passed by the First Appellate  Court,  a  second  appeal
was filed and the same was allowed by the High Court and  the  judgment  and
decree passed by the Appellate Court was reversed  without  formulating  any
substantial question of law.  On these facts, this Court held that the  High
Court, exercising jurisdiction under  Section  100  of  the  Code  of  Civil
Procedure,  cannot  interfere  with  or   reverse   the   judgment   without
formulating any substantial question of law.
11.   Also in the case of B.C. Shivashankara vs.  B.R.  Nagaraj,  (2007)  15
SCC 387, learned Single Judge of the Karnataka  High  Court  allowed  second
appeal and set aside the  judgment  and  decree  without  first  formulating
substantial  question  of  law.   This  Court,  therefore,  after  referring
earlier decisions of this Court, held that the judgment of  the  High  Court
cannot be sustained in law and the matter was remitted  to  the  High  Court
for its disposal in accordance with law.
12.   In the case of Patrick JJ. Saldanha vs. Antony M. Saldanha, (2007)  11
SCC 148, the High  Court  allowed  the  second  appeal  and  set  aside  the
judgment and decree passed by the courts below.  While allowing  the  appeal
and reversing the judgment, no substantial question of  law  was  framed  by
the High Court.  In that context, this Court reiterated as under:
“3. In view of Section 100 of the Code of Civil Procedure,  1908  (in  short
“the Code”) the memorandum  of  appeal  shall  precisely  state  substantial
question or questions of law involved in the appeal as required  under  sub-
section (3) of Section 100. Where the High Court is satisfied  that  in  any
case any substantial question of law is involved, it  shall  formulate  that
question under sub-section (4) and the second appeal has to be heard on  the
question so formulated as stated in sub-section (5) of Section 100.”


13.   In the  case  of  Mahavir  vs.  Lakhmi,  (2007)  9  SCC  208,  it  was
reiterated by this Court that while reversing the  judgment  and  decree  in
second appeal by the High Court, Section  100,  CPC  mandates  to  formulate
substantial question of law before allowing the second appeal and  reversing
the judgment and decree of the lower court.
14.   In the case of Hardeep Kaur vs. Malkiat Kaur, (2012) 4  SCC  344,  the
second appeal was allowed by the High Court  and  the  judgment  and  decree
passed by the appellate Court was set aside.  The short question  considered
by this Court was whether  a  second  appeal  lies  only  on  a  substantial
question of law and is it essential  for  the  High  Court  to  formulate  a
substantial question of law before interfering with the judgment and  decree
of the lower appellate court.  This Court, after considering almost all  the
earlier judgments, held as under:
“18.  The  law  consistently  stated  by  this  Court  that  formulation  of
substantial question of law is a sine qua non for exercise  of  jurisdiction
under Section 100 CPC admits of no ambiguity and permits  no  departure.  In
the present case, the High Court has  allowed  the  second  appeal  and  set
aside  the  judgment  and  decree  of  the  first  appellate  court  without
formulating any substantial question of  law,  which  is  impermissible  and
that renders the judgment of the High Court unsustainable.

15.   In Shah Mansukhlal Chhaganial vs. Gohil  Amarsing  Govindbhai,  (2006)
13 SCC 113, and Boodireddy Chandraiah  vs.   Arigela  Laxmi,  (2007)  8  SCC
155, this Court reiterated the same view that the second  appeal  cannot  be
allowed by the High Court without formulating any  substantial  question  of
law.
16.   In the case of Joseph Severance v. Benny Mathew,  (2005)  7  SCC  667,
this Court again took the view that the High Court would  not  be  competent
to reverse the finding recorded by the trial court or  the  first  appellate
court without formulating substantial question of law.
17.   In State of Kerala vs. Puthenkavu  N.S.S.  Karayogam,  (2001)  10  SCC
191, a second appeal was filed against the concurrent  finding  recorded  by
both the trial court and the  first  appellate  court.   However,  the  High
Court, exercising jurisdiction under Section 100, CPC  interfered  with  the
concurrent finding of facts and allowed the appeal.  This  Court  set  aside
the order holding that the judgment of the High Court  cannot  be  sustained
inasmuch  as  it  reverses  the  judgment  without  formulating  substantial
question of law.  The Court observed, thus:

“5. Both sides have advanced several contentions in the appeal  petition  as
also in the counter-affidavit filed. We refrain from expressing any  opinion
on the merits of the case as we propose  to  remit  the  second  appeal  for
disposal afresh. We have  noted  that  the  learned  Single  Judge  has  not
formulated any question of law, much less any substantial question  of  law,
which alone would have  clothed  the  High  Court  with  jurisdiction  under
Section 100 CPC to deal with a second appeal. This  Court  has  stated  time
and again  that  unless  the  High  Court  is  satisfied  that  there  is  a
substantial question of  law,  jurisdiction  for  second  appeal  cannot  be
exercised. It is unnecessary to cite the authorities on that  aspect  as  it
has now become well-nigh settled. Both  sides  agreed  that  no  substantial
question of law has been formulated by the learned Single Judge. If so,  the
learned Single Judge ought to have proceeded further.”


18.   In the case of Ellangallur vs. Gopalan, (2000) 2        SCC  11,  this
Court, considering a case where the High Court  in  second  appeal  reversed
the finding of the first appellate court on the re-appreciation of  evidence
without formulating any substantial question of law, held that the  judgment
passed by the High Court cannot be  sustained  in  view  of  the  prescribed
procedure of Section 100 of the Code of  Civil  Procedure.   Same  view  has
been reiterated by this Court in  the  case  of  H.G.  Venkataramanaiah  vs.
Subba Pujari, (2000) 10 SCC 412.
19.    Similar  view  has  been  reiterated  in  the  case  of   Ramavilasom
Grandhasala vs. N.S.S. Karayogam, (2000) 5 SCC 64, wherein it was held  that
the High Court without  formulating  any  substantial  question  of  law  as
required under sub-section (4) of Section  100  of  the  Code  cannot  allow
second appeal and set aside the judgment of the lower court.
20.   In the light of the provision contained in Section  100  CPC  and  the
ratio decided by this Court, we come to the following conclusion:-
      (i)   On the day when the second  appeal  is  listed  for  hearing  on
admission if the High Court is satisfied that  no  substantial  question  of
law  is  involved,  it  shall  dismiss  the  second  appeal   without   even
formulating the substantial question of law;
      (ii)  In cases where the High Court after  hearing  the  appellate  is
satisfied that the  substantial  question  of  law  is  involved,  it  shall
formulate that question  and  then  the  appeal  shall  be  heard  on  those
substantial question of law, after giving notice and opportunity of  hearing
to the respondent;

      (iii) In no circumstances the High Court can reverse the  judgment  of
the trial court and  the  first  appellate  court  without  formulating  the
substantial question of law and complying with  the  mandatory  requirements
of Section 100 CPC.

21.   Admittedly, the High  Court  by  the  impugned  judgment  allowed  the
appeal and reversed the judgment passed by the trial  court  and  the  first
appellate court.  We have,  therefore,  no  option  but  to  set  aside  the
impugned judgment passed by the High Court and remit the matter back to  the
High Court to first formulate the  substantial  question  of  law  and  then
decide all these appeals in accordance with law.
22.   Hence, we allow these appeals and remit  these  matters  back  to  the
High Court to first formulate substantial question of law  and  then  decide
all these appeals in accordance with law accordingly.
23.   Since the plaintiff-respondents are old  persons  aged  more  than  75
years and they have been fighting the litigation since 1992, we request  the
High Court to give preference of hearing to these  appeals  and  decide  the
same as expeditiously as possible preferably within a period of four  months
from today.
24.   However, interim order passed by this Court shall continue only for  a
period of four months from today.
25.   After hearing the respondents, who  appeared  in  person  before  this
Court today and informed  about  their  financial  status,  we  request  the
Maharashtra Legal Services Authority to  provide  all  legal  assistance  to
them and to meet all legal expenses in defending the second appeals  in  the
High Court.
26.   In the peculiar facts and circumstances of the  case  and  considering
the helplessness of the respondents who are old aged persons, we direct  the
appellant to pay a sum of Rs.25,000/- (Rupees  Twenty  Five  thousand  only)
towards the legal expenses incurred by them in pursuing  the  case  in  this
Court.
27.   Mr. Vigya, learned counsel for  the  appellant,  very  fairly  submits
that the appellant be allowed some time to pay the aforesaid amount  to  the
respondents.

28.   As prayed for, two weeks’ time is allowed to the appellant to pay  the
aforesaid amount to the respondents.
29.   The Registry is directed to communicate this Order to the Bombay  High
Court forthwith.


                                                                   …………………J.
                                                                (M.Y. EQBAL)


                                                                  ………………….J.
                                                               (C. NAGAPPAN)

NEW DELHI,
OCTOBER 27, 2015


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