1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3672 OF 2009
Apparaju Malhar Rao ….Appellant(s)
VERSUS
Tula Venkataiah @ Venkat Rao
(Dead) & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed by defendant No.1 against
the final judgment and order dated 30.12.2005
passed by the High Court of Judicature of Andhra
Pradesh at Hyderabad in Second Appeal No. 743 of
2004 whereby the High Court allowed the second
appeal filed by the plaintiff and set aside the
judgment and decree dated 24.03.2004 passed by
2
the Additional District Judge (FTC), Karimnagar in
A.S. No. 34 of 1999 and confirmed the judgment
and decree dated 26.03.1999 passed by the
Principal Junior Civil Judge, Karimnagar in O.S. No.
338 of 1994.
2) We herein set out the facts, in brief, to
appreciate the issue involved in this appeal.
3) The appellant herein is defendant No.1,
respondent No.1 is the plaintiff (since dead) and
respondent No. 2 is defendant No.3 (son of late
defendant No.2) and respondent No.3 is the wife of
defendant No.2. Defendant No.2 died during the
pendency of the case before the High Court and his
legal representative is respondent No.3 herein.
4) Respondent No.1-Plaintiff filed a suit for
perpetual injunction against the defendants
restraining them from interfering with the peaceful
possession and enjoyment of the plaintiff in respect
3
of land measuring 5 guntas and 7 sq. yds.
(hereinafter referred to as “suit land”) in Survey
No.1128/A situated at Mankanmathota in
Karimnagar.
5) On 20.01.1995, the defendants filed written
statement and denied the claim of the plaintiff. It
was, inter alia, contended that the plaintiff is not the
owner and possessor of suit land.
6) The Trial Court framed the issues and parties
adduced their evidence. By judgment/decree dated
26.03.1999, the Trial Court decreed the suit in
favour of the plaintiff.
7) Aggrieved by the said judgment/decree, the
defendants filed first appeal being Appeal Suit No.34
of 1999 before the Additional District Judge (FTC),
Karimnagar (A.P.). By judgment/decree dated
24.03.2004, the Additional District Judge allowed
4
the first appeal, set aside the judgment/decree of
the Trial Court and dismissed the suit.
8) Against the said judgment/decree, the plaintiff
filed second appeal being S.A. No.743 of 2004 before
the High Court.
9) The High Court, by the impugned judgment
dated 13.12.2005, allowed the appeal and set aside
the judgment/decree dated 24.03.2004 passed by
the First Appellate Court in A.S. No.34 of 1999 and
restored the judgment/decree dated 26.03.1999
passed by the Trial Court in O.S. No.338 of 1994
which had decreed the plaintiff’s suit.
10) Felt aggrieved, defendant No.3 has filed this
appeal by way of special leave before this Court.
11) Heard Mr. D. Mahesh Babu, learned counsel
for the appellant. Nobody appears for the
respondents.
5
12) Having heard the learned counsel for the
appellant 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 Court for deciding the second appeal
afresh in accordance with law as indicated below.
13) The reasons to remand the case to the High
Court has occasioned because the High Court while
allowing the second appeal filed by the plaintiff
(respondent No.1 herein) did not frame any
substantial question of law as is required to be
framed at the time of admission of the second
appeal and proceeded to allow the appeal filed by
the plaintiff.
14) A three Judge Bench of this Court in Santosh
Hazari vs. Purushottam Tiwari (Deceased) by
L.Rs., (2001) 3 SCC 179 had examined the scope of
Section 100 of the Code of the Civil procedure, 1908
6
(hereinafter referred to as “the Code”). Justice R.C.
Lahoti (as His Lordship then was) speaking for the
Bench laid down the following proposition of law in
Para 9:
“9. The High Court cannot proceed to hear a
second appeal without formulating the
substantial question of law involved in the
appeal and if it does so it acts illegally and in
abnegation or abdication of the duty case on
Court. The existence of substantial question
of law is the sine qua non for the exercise of
the jurisdiction under the amended Section
100 of the Code. (See Kshitish Chandra
Purkait v. Santosh Kumar Purkait,(1997) 5
SCC 438 Panchugopal Barua v. Umesh
Chandra Goswami, (1997) 4 SCC 413 and
Kondiba Dagadu Kadam v. Savitribai Sopan
Gujar, (1999) 3 SCC 722.)”
15) His Lordship then in Paras 10 to 14 succinctly
explained the meaning of the words “substantial
question of law” and “question of law” and held that
in order to admit the second appeal, what is
required to be made out by the appellant being sine
qua non for exercise of powers under Section 100 of
the Code, is existence of “substantial question of
law” arising in the case so as to empower the High
7
Court to admit the appeal for final hearing by
formulating such question. In the absence of any
substantial question of law arising in appeal, the
same merits dismissal in limine on the ground that
the appeal does not involve any substantial
question of law within the meaning of Section 100 of
the Code.
16) Perusal of the impugned order shows that no such
question was formulated except to note the
submissions of learned counsel for the appellant
that it so arises but not beyond that as to whether it
actually arises and, if so, what is that question.
17) In the light of foregoing discussion and keeping in
view the law laid down in the case of Santosh
Hazari (supra), we are of the considered view that
the impugned order is not legally sustainable and
thus liable to be set aside.
8
18) As a result, the appeal succeeds and is allowed.
Impugned order is set aside. The case is remanded
to the High Court for deciding the second appeal
afresh in accordance with law keeping in view the
law laid down in the case of Santosh Hazari
(supra).
………...................................J.
[R.K. AGRAWAL]
……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
September 01, 2017
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3672 OF 2009
Apparaju Malhar Rao ….Appellant(s)
VERSUS
Tula Venkataiah @ Venkat Rao
(Dead) & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed by defendant No.1 against
the final judgment and order dated 30.12.2005
passed by the High Court of Judicature of Andhra
Pradesh at Hyderabad in Second Appeal No. 743 of
2004 whereby the High Court allowed the second
appeal filed by the plaintiff and set aside the
judgment and decree dated 24.03.2004 passed by
2
the Additional District Judge (FTC), Karimnagar in
A.S. No. 34 of 1999 and confirmed the judgment
and decree dated 26.03.1999 passed by the
Principal Junior Civil Judge, Karimnagar in O.S. No.
338 of 1994.
2) We herein set out the facts, in brief, to
appreciate the issue involved in this appeal.
3) The appellant herein is defendant No.1,
respondent No.1 is the plaintiff (since dead) and
respondent No. 2 is defendant No.3 (son of late
defendant No.2) and respondent No.3 is the wife of
defendant No.2. Defendant No.2 died during the
pendency of the case before the High Court and his
legal representative is respondent No.3 herein.
4) Respondent No.1-Plaintiff filed a suit for
perpetual injunction against the defendants
restraining them from interfering with the peaceful
possession and enjoyment of the plaintiff in respect
3
of land measuring 5 guntas and 7 sq. yds.
(hereinafter referred to as “suit land”) in Survey
No.1128/A situated at Mankanmathota in
Karimnagar.
5) On 20.01.1995, the defendants filed written
statement and denied the claim of the plaintiff. It
was, inter alia, contended that the plaintiff is not the
owner and possessor of suit land.
6) The Trial Court framed the issues and parties
adduced their evidence. By judgment/decree dated
26.03.1999, the Trial Court decreed the suit in
favour of the plaintiff.
7) Aggrieved by the said judgment/decree, the
defendants filed first appeal being Appeal Suit No.34
of 1999 before the Additional District Judge (FTC),
Karimnagar (A.P.). By judgment/decree dated
24.03.2004, the Additional District Judge allowed
4
the first appeal, set aside the judgment/decree of
the Trial Court and dismissed the suit.
8) Against the said judgment/decree, the plaintiff
filed second appeal being S.A. No.743 of 2004 before
the High Court.
9) The High Court, by the impugned judgment
dated 13.12.2005, allowed the appeal and set aside
the judgment/decree dated 24.03.2004 passed by
the First Appellate Court in A.S. No.34 of 1999 and
restored the judgment/decree dated 26.03.1999
passed by the Trial Court in O.S. No.338 of 1994
which had decreed the plaintiff’s suit.
10) Felt aggrieved, defendant No.3 has filed this
appeal by way of special leave before this Court.
11) Heard Mr. D. Mahesh Babu, learned counsel
for the appellant. Nobody appears for the
respondents.
5
12) Having heard the learned counsel for the
appellant 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 Court for deciding the second appeal
afresh in accordance with law as indicated below.
13) The reasons to remand the case to the High
Court has occasioned because the High Court while
allowing the second appeal filed by the plaintiff
(respondent No.1 herein) did not frame any
substantial question of law as is required to be
framed at the time of admission of the second
appeal and proceeded to allow the appeal filed by
the plaintiff.
14) A three Judge Bench of this Court in Santosh
Hazari vs. Purushottam Tiwari (Deceased) by
L.Rs., (2001) 3 SCC 179 had examined the scope of
Section 100 of the Code of the Civil procedure, 1908
6
(hereinafter referred to as “the Code”). Justice R.C.
Lahoti (as His Lordship then was) speaking for the
Bench laid down the following proposition of law in
Para 9:
“9. The High Court cannot proceed to hear a
second appeal without formulating the
substantial question of law involved in the
appeal and if it does so it acts illegally and in
abnegation or abdication of the duty case on
Court. The existence of substantial question
of law is the sine qua non for the exercise of
the jurisdiction under the amended Section
100 of the Code. (See Kshitish Chandra
Purkait v. Santosh Kumar Purkait,(1997) 5
SCC 438 Panchugopal Barua v. Umesh
Chandra Goswami, (1997) 4 SCC 413 and
Kondiba Dagadu Kadam v. Savitribai Sopan
Gujar, (1999) 3 SCC 722.)”
15) His Lordship then in Paras 10 to 14 succinctly
explained the meaning of the words “substantial
question of law” and “question of law” and held that
in order to admit the second appeal, what is
required to be made out by the appellant being sine
qua non for exercise of powers under Section 100 of
the Code, is existence of “substantial question of
law” arising in the case so as to empower the High
7
Court to admit the appeal for final hearing by
formulating such question. In the absence of any
substantial question of law arising in appeal, the
same merits dismissal in limine on the ground that
the appeal does not involve any substantial
question of law within the meaning of Section 100 of
the Code.
16) Perusal of the impugned order shows that no such
question was formulated except to note the
submissions of learned counsel for the appellant
that it so arises but not beyond that as to whether it
actually arises and, if so, what is that question.
17) In the light of foregoing discussion and keeping in
view the law laid down in the case of Santosh
Hazari (supra), we are of the considered view that
the impugned order is not legally sustainable and
thus liable to be set aside.
8
18) As a result, the appeal succeeds and is allowed.
Impugned order is set aside. The case is remanded
to the High Court for deciding the second appeal
afresh in accordance with law keeping in view the
law laid down in the case of Santosh Hazari
(supra).
………...................................J.
[R.K. AGRAWAL]
……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
September 01, 2017
