REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3190 OF 2016
(Arising out of S.L.P. (Civil) No. 6662 of 2016)
Raghavendra Swamy Mutt …Appellant
Versus
Uttaradi Mutt ...Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal, by special leave, assails the order dated
11.02.2016 passed by the learned Single Judge of the High Court of
Karnataka at Dharwad in I.A. No.1 of 2016 in RSA No.100446 of 2015 whereby
he has vacated the interim order dated 16.12.2015 passed in I.A. No.1 of
2015.
2. The facts for the purpose of adjudication of the present appeal need
to be stated in brief. The respondent, Uttaradi Mutt, filed O.S.
No.193/1992 in the Court of Civil Judge, Koppal but in due course the said
suit was transferred to the Court of Additional Civil Judge, Gangavati and
was registered as O.S. No.74/2010. The suit was filed by the plaintiff-
respondent for the relief(s) for perpetual injunction for restraining the
defendant-Mutt, its agents, servants, devotees, etc., from entering upon
the suit schedule property or interfering with its possession and enjoyment
of the suit property and/or interfering or disturbing with the performance
of annual “Aradhana” of His Holiness Sri Padmanabha Teertharu, Sri Kavindra
Teertharu and Sri Vageesha Teertharu. The suit preferred by the plaintiff
was dismissed.
3. The judgment and decree passed in the suit was assailed before the
Principal Civil Judge, Senior Division, Gangavati and eventually by virtue
of the order passed by this Court in Special Leave Petition (Civil) No.
20346 of 2014, it stood transferred to the Court of Civil Judge, Senior
Division, Dharwad and numbered as R.A. No.123/2014. The first appellate
Court allowed the appeal in part. The appellate Court restrained the
present appellant from interfering with the plaintiff/respondent Mutt's
possession and enjoyment of suit property subject to the right of the
defendant Mutt to perform Adradhanas and Poojas of the Vrindavanas at
Navavrindavanagatti.
4. After the appeal was disposed of, the respondent filed execution
petition, E.P. No.122/2015 before the Principal Civil Judge, Junior
Division, Gangavati. The executing court passed certain orders on
10.12.2015. In the meantime, the appellant, being grieved by the order in
the Regular Appeal, had preferred RSA No.100446/2015. As the order passed
by the executing court affected certain rights of the appellant, it filed
IA No.1 of 2015 seeking temporary injunction against the respondent. Be it
stated, the respondent had filed a caveat which was defective but it was
allowed to represent through the counsel when the IA No.1 of 2015 was
argued. As is discernible from the narration of facts, the executing court
had directed the Deputy Superintendent of Police, Gangavati to give police
protection to the decree-holder for possession and enjoyment of the suit
scheduled property and preventing the judgment-debtor from trespassing into
the suit property violating the decree in RA No.123/2014.
5. When the matter stood thus, IA No.1 of 2015 was taken up by the High
Court. The learned Single Judge, while considering the interlocutory
application for injunction, passed the following order:-
“List this matter on 20.01.2016 for filing of objections to I.A.1/2015 and
2/15. In the meanwhile, registry to secure the LCR from both the courts
below. The same should reach this court on or before 16.01.2016. However,
it is made clear that the appellant, who is defendant in O.S., and
respondent who is plaintiff in the O.S., shall have their right to perform
pooja on regular basis without staking claim with respect to disputed land,
which shall be subject to out come of this appeal.”
6. As is manifest, the respondent filed objections to I.A. No.1/2015 and
also filed I.A. No.1/2016 for vacation of the interim order. I.A.
No.1/2016 was taken up by the learned Single Judge who referred to Order
XXXIX Rule 3-A of the Code of Civil Procedure (CPC), the authority in
A. Venkatasubbiah Naidu v. S. Chellappan &
others[1], noted the contentions advanced by the learned counsel for the
parties, adverted to the litigations that had been taken recourse to by
both sides, acquainted itself with the earlier order passed by the High
Court and came to hold thus :-
“On a reading of the aforesaid order it becomes clear that the interim
application filed by the appellant along with the appeal before this Court
had to be considered independently and on its own merits. But, in the
instant case what has happened is that this Court, without issuing notice
to the respondent in the second appeal has granted an interim order which
is to be in operation till the end of the appeal. It is not known as to
whether the appellant had satisfied the Court on any substantial question
of law that would arise in the matter as the matter was listed for
admission.”
7. After so stating, the High Court opined that the principle stated in
Order XXXIX Rule 3 had not been followed, notice to the respondent had not
been issued although permission was granted to the counsel to raise
objections and further delved into the distinction between an appeal under
Section 100 CPC and the regular first appeal, and in the ultimate
eventuate, concluded thus:-
“If notice to respondent was to be dispensed with prior to grant of an ad
interim order till the conclusion of the second appeal then reasons for
doing so had to be recorded. But the interim order which is sought to be
vacated is bereft of any reason. I am of the view that on this short
ground alone order dated 16.12.2015 has to be vacated as there are
procedural irregularities in the grant of the ad interim order. Secondly,
it is also not known at this point of time as to whether, the order passed
by this Court in M.F.A. no.21690/2012 was brought to the notice of this
Court by the appellant or not before the interim order was passed.
In view of the above, the application I.A. no.1/2016 for vacating
interim order dated 16.12.2015 is allowed. Order dated 16.12.2015 stands
vacated. The appellant to seek any date for admission of the matter and
after hearing learned counsel for the appellant on admission of the appeal,
this Court to consider I.A. no.1/2015 afresh. All contentions on both
sides on I.A. No.1/2015 are kept open.”
8. When the matter was taken up on 18.03.2016, this Court, after hearing
the learned counsel for the parties, had passed the following order :-
“Having heard learned counsel for the parties, as an interim measure, it is
directed that the petitioner, Sri Raghavendra Swamy Mutt, is permitted to
do 'aradhana' from 24th to 26th March, 2016 and not a day prior to that or
beyond that. Needless to say, no equity shall be claimed by the petitioner
on the basis of this order. That apart, the present arrangement shall be
restricted to this occasion only.”
9. We had, at that time, blissfully perceived being under the impression
that “Aradhana” is a yearly event, that request to the High Court to
dispose of the second appeal could sub-serve the cause of justice, but the
learned counsel for the parties apprised us that it is a monthly affair.
Ergo, we have heard Dr. Rajiv Dhawan and Mr. R. Venkataramani, learned
senior counsel for the appellant and Mr. Fali S. Nariman, learned senior
counsel for the respondent.
10. It is submitted by Dr. Dhawan and
Mr. Venkataramani, learned senior counsel, that the High Court was not
justified in vacating the order of stay on the grounds it has done, for the
principle of Order XXXIX Rule 3-A is not applicable when the appellant had
prayed for stay and passing of interim orders. It is urged by them that
the respondent had entered caveat which was defective in nature but it had
participated in the hearing and, therefore, the interim order could not be
regarded as an ex parte order. Learned senior counsel appearing for the
appellant would further submit that when the judgment and decree passed in
the regular appeal is demonstrably unsustainable, the High Court should
have maintained the order of stay and finally disposed of I.A. No.1/2015
and should not have entertained I.A. No.1/2016 seeking vacation of the
order of stay. It has been highlighted that the language employed in
Section 100 CPC though stipulates that appeal is to be entertained on
substantial question of law involved in the case, it does not bar the High
Court to pass an ad interim order in a grave situation and that is the
basic purport of Order XLI Rule 5 and Order XLII CPC.
11. Combating the aforesaid submissions, it is urged by Mr. Nariman,
learned senior counsel appearing for the respondent that the interim order
passed by the High Court in I.A. No.1/2015 from all angles is an ex parte
order, for adjournment was sought on behalf of respondent to argue the
matter but the same was declined. Learned senior counsel would propone
that passing an order of stay or issuing an order of injunction in a second
appeal is quite different than an interim order passed in a regular first
appeal preferred under Section 96 CPC. It is canvassed by him that
formulation of substantial question of law by the Court under Section 100
CPC is an imperative to proceed with the appeal and the Court cannot
proceed unless the condition precedent is satisfied and in such a
situation, the question of passing any interim order or granting any
interim relief does not arise. Mr. Nariman has drawn support from a two-
Judge Bench decision in Ram Phal v. Banarasi & Ors.[2].
12. To appreciate the controversy, it is seemly to refer to Section 100
CPC. It reads as follows:-
“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 shall lie to the High
Court from every decree passed in appeal by any Court subordinate to the
High Court, if the High Court is satisfied that the case involves a
substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex-
parte.
(3) In an appeal under this section, the memorandum of appeal shall
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 shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the
respondent shall, at the hearing of the appeal, be allowed to argue that
the case does not involve such question :
Provided that nothing in this sub-section shall be deemed to take away or
abridge the power of the Court to hear, for reasons to be recorded, the
appeal on any other substantial question of law, not formulated by it, if
it is satisfied that the case involves such question.”
13. Section 101 CPC reads as under:-
“Section 101. Second appeal on no other grounds.—No second appeal shall lie
except on the ground mentioned in section 100.”
14. A plain reading of Section 100 CPC makes it explicit that the High
Court can entertain a second appeal if it is satisfied that the appeal
involves a substantial question of law. More than a decade and a half
back, in Ishwar Dass Jain v. Sohan Lal[3] it has been ruled that after the
1976 Amendment, it is essential for the High Court to formulate a
substantial question of law and it is not permissible to reverse the
judgment of the first appellate court without doing so.
15. In Roop Singh v. Ram Singh[4] the Court had to say thus:-
“It is to be reiterated that under Section 100 CPC jurisdiction of the High
Court to entertain a second appeal is confined only to such appeals which
involve a substantial question of law and it does not confer any
jurisdiction on the High Court to interfere with pure questions of fact
while exercising its jurisdiction under Section 100 CPC.”
16. In Municipal Committee, Hoshiarpur v. Punjab SEB & Others[5] it has
been categorically laid down that the existence of a substantial question
of law is a condition precedent for entertaining the second appeal and on
failure to do so, the judgment rendered by the High Court is unsustainable.
It has been clearly stated that existence of a substantial question of law
is the sine qua non for the exercise of jurisdiction under the provisions
of Section 100 CPC.
17. In Umerkhan v. Bismillabi alias Babulal Shaikh and others[6] a two-
Judge Bench was constrained to ingeminate the legal position thus:-
“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.”
18. In the instant case, the High Court has not yet admitted the matter.
It is not in dispute that 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. The issue that arises for consideration
is; whether the High Court without admitting the second appeal could have
entertained IA No. 1/2015 which was filed seeking interim relief. In Ram
Phal (supra), from which Mr. Nariman, learned senior counsel has drawn
immense inspiration, the two-Judge Bench was dealing with a case where the
High Court had granted an interim order by staying the execution of the
decree but had not framed the substantial question of law. In that context,
the Court held:-
“… However, the High Court granted interim order by staying the execution
of the decree. It is against the said order granting interim relief the
respondent in the second appeal has preferred this appeal. This Court, on a
number of occasions, has repeatedly held that the High Court acquires
jurisdiction to decide the second appeal or deal with the second appeal on
merits only when it frames a substantial question of law as required to be
framed under Section 100 of the Civil Procedure Code. In the present case,
what we find is that the High Court granted interim order and thereafter
fixed the matter for framing of question of law on a subsequent date. This
was not the way to deal with the matter as contemplated under Section 100
CPC. The High Court is required to frame the question of law first and
thereafter deal with the matter. Since the High Court dealt with the matter
contrary to the mandate enshrined under Section 100 CPC, the impugned order
deserves to be set aside.”
19. To meet the reasoning in the aforequoted passage, Dr.
Dhawan and Mr. Venkataramani with resolute perseverance submitted that the
decision in Ram Phal (supra) is distinguishable as it does not take note of
Order XLI Rule 5 and Order XLII Rule 1 CPC.
20. Order XLI Rule 5 reads as follows:-
“5. Stay by appellate court.—(1) An appeal shall not operate as a stay of
proceedings under a decree or order appealed from except so far as the
appellate court may order, nor shall execution of a decree be stayed by
reason only of an appeal having been preferred from the decree; but the
appellate court may for sufficient cause order stay of execution of such
decree.
Explanation : An order by the Appellate Court for the stay of execution of
the decree shall be effective from the date of the communication of such
order to the court of first instance, but an affidavit sworn by the
appellant, based on his personal knowledge, stating that an order for the
stay of execution of the decree has been made by the Appellate Court shall,
pending the receipt from the Appellate Court of the order for the stay of
execution or any order to the contrary, be acted upon by the court of first
instance.
| | |
| | |
(2) Stay by court which passed the decree.—Where an application is made for
stay of execution of an appealable decree before the expiration of the time
allowed for appealing therefrom, the court which passed the decree may on
sufficient cause being shown order the execution to be stayed.
(3) No order for stay of execution shall be made under sub-rule (1) or sub-
rule (2) unless the court making it is satisfied—
(a) that substantial loss may result to the party applying for stay of
execution unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance
of such decree or order as may ultimately be binding upon him.
(4) Subject to the provisions of sub-rule (3), the court may make an ex
parte order for stay of execution pending the hearing of the application.
(5) Notwithstanding anything contained in the foregoing sub-rules, where
the appellant fails to make the deposit or furnish the security specified
in sub-rule (3) of Rule 1, the court shall not make an order staying the
execution of the decree.”
21. Order XLII Rule 1 that occurs under the Heading “Appeals From
Appellate Decrees” is as follows:-
“1. Procedure.— The rules of Order XLI shall apply, so far as may be, to
appeals from appellate decrees.”
22. In this context, it is useful to refer to Order XLII Rule 2 which has
been inserted by Act 104 of 1976 with effect from 01.02.1977. It provides
as under:-
| | |
|“2. Power of court to direct that the appeal be heard on the | |
|question formulated by it.— At the time of making an order| |
|under rule 11 of Order XLI for the hearing of a second appeal,| |
|the court shall formulate the substantial question of law as | |
|required by section 100, and in doing so, the court may direct| |
|that the second appeal be heard on the question so formulated | |
|and it shall not be open to the appellant to urge any other | |
|ground in the appeal without the leave of the court, given in | |
|accordance with the provision of section 100.” | |
23. 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 and it has been clearly so stated in Ram Phal
(supra). Therefore, the High Court has rectified its mistake by vacating
the order passed in IA No. 1/2015 and it is the correct approach adopted by
the High Court. Thus, the impugned order is absolutely impregnable.
24. Having so concluded, we would have proceeded to record dismissal of
the appeal. But in the obtaining facts and circumstances, we request the
High Court to take up the second appeal for admission and, if it finds that
there is a substantial question of law involved, proceed accordingly and
deal with IA No. 1/2015 as required in law. Needless to say, the interim
order passed by this Court on earlier occasion should not be construed as
an expression of any opinion from any count. It was a pure and simple ad
interim arrangement.
25. Resultantly, the appeal, being sans substance, stands dismissed with
no order as to costs.
...............................J.
[Dipak Misra]
...............................J.
[Shiva Kirti Singh]
New Delhi.
March 30, 2016.
-----------------------
[1] AIR 2000 SC 3032
[2] (2003) 11 SCC 762
[3] (2000) 1 SCC 434
[4] (2000) 3 SCC 708
[5] (2010) 13 SCC 216
[6] (2011) 9 SCC 684
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3190 OF 2016
(Arising out of S.L.P. (Civil) No. 6662 of 2016)
Raghavendra Swamy Mutt …Appellant
Versus
Uttaradi Mutt ...Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal, by special leave, assails the order dated
11.02.2016 passed by the learned Single Judge of the High Court of
Karnataka at Dharwad in I.A. No.1 of 2016 in RSA No.100446 of 2015 whereby
he has vacated the interim order dated 16.12.2015 passed in I.A. No.1 of
2015.
2. The facts for the purpose of adjudication of the present appeal need
to be stated in brief. The respondent, Uttaradi Mutt, filed O.S.
No.193/1992 in the Court of Civil Judge, Koppal but in due course the said
suit was transferred to the Court of Additional Civil Judge, Gangavati and
was registered as O.S. No.74/2010. The suit was filed by the plaintiff-
respondent for the relief(s) for perpetual injunction for restraining the
defendant-Mutt, its agents, servants, devotees, etc., from entering upon
the suit schedule property or interfering with its possession and enjoyment
of the suit property and/or interfering or disturbing with the performance
of annual “Aradhana” of His Holiness Sri Padmanabha Teertharu, Sri Kavindra
Teertharu and Sri Vageesha Teertharu. The suit preferred by the plaintiff
was dismissed.
3. The judgment and decree passed in the suit was assailed before the
Principal Civil Judge, Senior Division, Gangavati and eventually by virtue
of the order passed by this Court in Special Leave Petition (Civil) No.
20346 of 2014, it stood transferred to the Court of Civil Judge, Senior
Division, Dharwad and numbered as R.A. No.123/2014. The first appellate
Court allowed the appeal in part. The appellate Court restrained the
present appellant from interfering with the plaintiff/respondent Mutt's
possession and enjoyment of suit property subject to the right of the
defendant Mutt to perform Adradhanas and Poojas of the Vrindavanas at
Navavrindavanagatti.
4. After the appeal was disposed of, the respondent filed execution
petition, E.P. No.122/2015 before the Principal Civil Judge, Junior
Division, Gangavati. The executing court passed certain orders on
10.12.2015. In the meantime, the appellant, being grieved by the order in
the Regular Appeal, had preferred RSA No.100446/2015. As the order passed
by the executing court affected certain rights of the appellant, it filed
IA No.1 of 2015 seeking temporary injunction against the respondent. Be it
stated, the respondent had filed a caveat which was defective but it was
allowed to represent through the counsel when the IA No.1 of 2015 was
argued. As is discernible from the narration of facts, the executing court
had directed the Deputy Superintendent of Police, Gangavati to give police
protection to the decree-holder for possession and enjoyment of the suit
scheduled property and preventing the judgment-debtor from trespassing into
the suit property violating the decree in RA No.123/2014.
5. When the matter stood thus, IA No.1 of 2015 was taken up by the High
Court. The learned Single Judge, while considering the interlocutory
application for injunction, passed the following order:-
“List this matter on 20.01.2016 for filing of objections to I.A.1/2015 and
2/15. In the meanwhile, registry to secure the LCR from both the courts
below. The same should reach this court on or before 16.01.2016. However,
it is made clear that the appellant, who is defendant in O.S., and
respondent who is plaintiff in the O.S., shall have their right to perform
pooja on regular basis without staking claim with respect to disputed land,
which shall be subject to out come of this appeal.”
6. As is manifest, the respondent filed objections to I.A. No.1/2015 and
also filed I.A. No.1/2016 for vacation of the interim order. I.A.
No.1/2016 was taken up by the learned Single Judge who referred to Order
XXXIX Rule 3-A of the Code of Civil Procedure (CPC), the authority in
A. Venkatasubbiah Naidu v. S. Chellappan &
others[1], noted the contentions advanced by the learned counsel for the
parties, adverted to the litigations that had been taken recourse to by
both sides, acquainted itself with the earlier order passed by the High
Court and came to hold thus :-
“On a reading of the aforesaid order it becomes clear that the interim
application filed by the appellant along with the appeal before this Court
had to be considered independently and on its own merits. But, in the
instant case what has happened is that this Court, without issuing notice
to the respondent in the second appeal has granted an interim order which
is to be in operation till the end of the appeal. It is not known as to
whether the appellant had satisfied the Court on any substantial question
of law that would arise in the matter as the matter was listed for
admission.”
7. After so stating, the High Court opined that the principle stated in
Order XXXIX Rule 3 had not been followed, notice to the respondent had not
been issued although permission was granted to the counsel to raise
objections and further delved into the distinction between an appeal under
Section 100 CPC and the regular first appeal, and in the ultimate
eventuate, concluded thus:-
“If notice to respondent was to be dispensed with prior to grant of an ad
interim order till the conclusion of the second appeal then reasons for
doing so had to be recorded. But the interim order which is sought to be
vacated is bereft of any reason. I am of the view that on this short
ground alone order dated 16.12.2015 has to be vacated as there are
procedural irregularities in the grant of the ad interim order. Secondly,
it is also not known at this point of time as to whether, the order passed
by this Court in M.F.A. no.21690/2012 was brought to the notice of this
Court by the appellant or not before the interim order was passed.
In view of the above, the application I.A. no.1/2016 for vacating
interim order dated 16.12.2015 is allowed. Order dated 16.12.2015 stands
vacated. The appellant to seek any date for admission of the matter and
after hearing learned counsel for the appellant on admission of the appeal,
this Court to consider I.A. no.1/2015 afresh. All contentions on both
sides on I.A. No.1/2015 are kept open.”
8. When the matter was taken up on 18.03.2016, this Court, after hearing
the learned counsel for the parties, had passed the following order :-
“Having heard learned counsel for the parties, as an interim measure, it is
directed that the petitioner, Sri Raghavendra Swamy Mutt, is permitted to
do 'aradhana' from 24th to 26th March, 2016 and not a day prior to that or
beyond that. Needless to say, no equity shall be claimed by the petitioner
on the basis of this order. That apart, the present arrangement shall be
restricted to this occasion only.”
9. We had, at that time, blissfully perceived being under the impression
that “Aradhana” is a yearly event, that request to the High Court to
dispose of the second appeal could sub-serve the cause of justice, but the
learned counsel for the parties apprised us that it is a monthly affair.
Ergo, we have heard Dr. Rajiv Dhawan and Mr. R. Venkataramani, learned
senior counsel for the appellant and Mr. Fali S. Nariman, learned senior
counsel for the respondent.
10. It is submitted by Dr. Dhawan and
Mr. Venkataramani, learned senior counsel, that the High Court was not
justified in vacating the order of stay on the grounds it has done, for the
principle of Order XXXIX Rule 3-A is not applicable when the appellant had
prayed for stay and passing of interim orders. It is urged by them that
the respondent had entered caveat which was defective in nature but it had
participated in the hearing and, therefore, the interim order could not be
regarded as an ex parte order. Learned senior counsel appearing for the
appellant would further submit that when the judgment and decree passed in
the regular appeal is demonstrably unsustainable, the High Court should
have maintained the order of stay and finally disposed of I.A. No.1/2015
and should not have entertained I.A. No.1/2016 seeking vacation of the
order of stay. It has been highlighted that the language employed in
Section 100 CPC though stipulates that appeal is to be entertained on
substantial question of law involved in the case, it does not bar the High
Court to pass an ad interim order in a grave situation and that is the
basic purport of Order XLI Rule 5 and Order XLII CPC.
11. Combating the aforesaid submissions, it is urged by Mr. Nariman,
learned senior counsel appearing for the respondent that the interim order
passed by the High Court in I.A. No.1/2015 from all angles is an ex parte
order, for adjournment was sought on behalf of respondent to argue the
matter but the same was declined. Learned senior counsel would propone
that passing an order of stay or issuing an order of injunction in a second
appeal is quite different than an interim order passed in a regular first
appeal preferred under Section 96 CPC. It is canvassed by him that
formulation of substantial question of law by the Court under Section 100
CPC is an imperative to proceed with the appeal and the Court cannot
proceed unless the condition precedent is satisfied and in such a
situation, the question of passing any interim order or granting any
interim relief does not arise. Mr. Nariman has drawn support from a two-
Judge Bench decision in Ram Phal v. Banarasi & Ors.[2].
12. To appreciate the controversy, it is seemly to refer to Section 100
CPC. It reads as follows:-
“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 shall lie to the High
Court from every decree passed in appeal by any Court subordinate to the
High Court, if the High Court is satisfied that the case involves a
substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex-
parte.
(3) In an appeal under this section, the memorandum of appeal shall
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 shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the
respondent shall, at the hearing of the appeal, be allowed to argue that
the case does not involve such question :
Provided that nothing in this sub-section shall be deemed to take away or
abridge the power of the Court to hear, for reasons to be recorded, the
appeal on any other substantial question of law, not formulated by it, if
it is satisfied that the case involves such question.”
13. Section 101 CPC reads as under:-
“Section 101. Second appeal on no other grounds.—No second appeal shall lie
except on the ground mentioned in section 100.”
14. A plain reading of Section 100 CPC makes it explicit that the High
Court can entertain a second appeal if it is satisfied that the appeal
involves a substantial question of law. More than a decade and a half
back, in Ishwar Dass Jain v. Sohan Lal[3] it has been ruled that after the
1976 Amendment, it is essential for the High Court to formulate a
substantial question of law and it is not permissible to reverse the
judgment of the first appellate court without doing so.
15. In Roop Singh v. Ram Singh[4] the Court had to say thus:-
“It is to be reiterated that under Section 100 CPC jurisdiction of the High
Court to entertain a second appeal is confined only to such appeals which
involve a substantial question of law and it does not confer any
jurisdiction on the High Court to interfere with pure questions of fact
while exercising its jurisdiction under Section 100 CPC.”
16. In Municipal Committee, Hoshiarpur v. Punjab SEB & Others[5] it has
been categorically laid down that the existence of a substantial question
of law is a condition precedent for entertaining the second appeal and on
failure to do so, the judgment rendered by the High Court is unsustainable.
It has been clearly stated that existence of a substantial question of law
is the sine qua non for the exercise of jurisdiction under the provisions
of Section 100 CPC.
17. In Umerkhan v. Bismillabi alias Babulal Shaikh and others[6] a two-
Judge Bench was constrained to ingeminate the legal position thus:-
“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.”
18. In the instant case, the High Court has not yet admitted the matter.
It is not in dispute that 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. The issue that arises for consideration
is; whether the High Court without admitting the second appeal could have
entertained IA No. 1/2015 which was filed seeking interim relief. In Ram
Phal (supra), from which Mr. Nariman, learned senior counsel has drawn
immense inspiration, the two-Judge Bench was dealing with a case where the
High Court had granted an interim order by staying the execution of the
decree but had not framed the substantial question of law. In that context,
the Court held:-
“… However, the High Court granted interim order by staying the execution
of the decree. It is against the said order granting interim relief the
respondent in the second appeal has preferred this appeal. This Court, on a
number of occasions, has repeatedly held that the High Court acquires
jurisdiction to decide the second appeal or deal with the second appeal on
merits only when it frames a substantial question of law as required to be
framed under Section 100 of the Civil Procedure Code. In the present case,
what we find is that the High Court granted interim order and thereafter
fixed the matter for framing of question of law on a subsequent date. This
was not the way to deal with the matter as contemplated under Section 100
CPC. The High Court is required to frame the question of law first and
thereafter deal with the matter. Since the High Court dealt with the matter
contrary to the mandate enshrined under Section 100 CPC, the impugned order
deserves to be set aside.”
19. To meet the reasoning in the aforequoted passage, Dr.
Dhawan and Mr. Venkataramani with resolute perseverance submitted that the
decision in Ram Phal (supra) is distinguishable as it does not take note of
Order XLI Rule 5 and Order XLII Rule 1 CPC.
20. Order XLI Rule 5 reads as follows:-
“5. Stay by appellate court.—(1) An appeal shall not operate as a stay of
proceedings under a decree or order appealed from except so far as the
appellate court may order, nor shall execution of a decree be stayed by
reason only of an appeal having been preferred from the decree; but the
appellate court may for sufficient cause order stay of execution of such
decree.
Explanation : An order by the Appellate Court for the stay of execution of
the decree shall be effective from the date of the communication of such
order to the court of first instance, but an affidavit sworn by the
appellant, based on his personal knowledge, stating that an order for the
stay of execution of the decree has been made by the Appellate Court shall,
pending the receipt from the Appellate Court of the order for the stay of
execution or any order to the contrary, be acted upon by the court of first
instance.
| | |
| | |
(2) Stay by court which passed the decree.—Where an application is made for
stay of execution of an appealable decree before the expiration of the time
allowed for appealing therefrom, the court which passed the decree may on
sufficient cause being shown order the execution to be stayed.
(3) No order for stay of execution shall be made under sub-rule (1) or sub-
rule (2) unless the court making it is satisfied—
(a) that substantial loss may result to the party applying for stay of
execution unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance
of such decree or order as may ultimately be binding upon him.
(4) Subject to the provisions of sub-rule (3), the court may make an ex
parte order for stay of execution pending the hearing of the application.
(5) Notwithstanding anything contained in the foregoing sub-rules, where
the appellant fails to make the deposit or furnish the security specified
in sub-rule (3) of Rule 1, the court shall not make an order staying the
execution of the decree.”
21. Order XLII Rule 1 that occurs under the Heading “Appeals From
Appellate Decrees” is as follows:-
“1. Procedure.— The rules of Order XLI shall apply, so far as may be, to
appeals from appellate decrees.”
22. In this context, it is useful to refer to Order XLII Rule 2 which has
been inserted by Act 104 of 1976 with effect from 01.02.1977. It provides
as under:-
| | |
|“2. Power of court to direct that the appeal be heard on the | |
|question formulated by it.— At the time of making an order| |
|under rule 11 of Order XLI for the hearing of a second appeal,| |
|the court shall formulate the substantial question of law as | |
|required by section 100, and in doing so, the court may direct| |
|that the second appeal be heard on the question so formulated | |
|and it shall not be open to the appellant to urge any other | |
|ground in the appeal without the leave of the court, given in | |
|accordance with the provision of section 100.” | |
23. 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 and it has been clearly so stated in Ram Phal
(supra). Therefore, the High Court has rectified its mistake by vacating
the order passed in IA No. 1/2015 and it is the correct approach adopted by
the High Court. Thus, the impugned order is absolutely impregnable.
24. Having so concluded, we would have proceeded to record dismissal of
the appeal. But in the obtaining facts and circumstances, we request the
High Court to take up the second appeal for admission and, if it finds that
there is a substantial question of law involved, proceed accordingly and
deal with IA No. 1/2015 as required in law. Needless to say, the interim
order passed by this Court on earlier occasion should not be construed as
an expression of any opinion from any count. It was a pure and simple ad
interim arrangement.
25. Resultantly, the appeal, being sans substance, stands dismissed with
no order as to costs.
...............................J.
[Dipak Misra]
...............................J.
[Shiva Kirti Singh]
New Delhi.
March 30, 2016.
-----------------------
[1] AIR 2000 SC 3032
[2] (2003) 11 SCC 762
[3] (2000) 1 SCC 434
[4] (2000) 3 SCC 708
[5] (2010) 13 SCC 216
[6] (2011) 9 SCC 684
