A transferee pendente lite of mortgaged property is bound by doctrine of lis pendens under Section 52 Transfer of Property Act irrespective of notice and takes property subject to decree and execution proceedings. Such transferee ordinarily represents judgment-debtor within meaning of Section 47 CPC and challenges relating to execution sale, irregularity or fraud must ordinarily be raised within framework of Order XXI CPC and not through separate suit. Lis pendens continues till complete satisfaction of decree, and confirmed court auction sales cannot be collaterally impeached except in accordance with statutory remedies prescribed under CPC.

APEX COURT HELD THAT 

TRANSFER OF PROPERTY ACT, 1882 – S.52 – Doctrine of lis pendens – Mortgage suit – Transfer pendente lite – Effect of execution sale – Whether pendente lite purchaser bound by decree and auction sale – CODE OF CIVIL PROCEDURE, 1908 – S.47 – O.XXI Rr.89, 90, 92 & 99 – Maintainability of independent suit by pendente lite transferee – Distinction between representative of judgment-debtor and independent third party – Fraud in execution proceedings – Scope.

Mortgage suit instituted by Bank against borrowers for recovery of loan by sale of mortgaged property – During pendency of litigation, original mortgagors/judgment-debtors executed sale deed in favour of plaintiffs/transferees without obtaining leave of Court – Plaintiffs subsequently instituted separate suit challenging auction sale conducted in execution proceedings contending that they were bona fide purchasers without notice, auction purchaser committed fraud and execution sale suffered from material irregularities – Defendants contended that plaintiffs being pendente lite purchasers were bound by decree and execution proceedings and separate suit was barred under Section 47 CPC and Order XXI CPC – Sustainability.

Held : Doctrine of lis pendens embodied in Section 52 Transfer of Property Act is founded upon public policy to maintain status quo during pendency of litigation and to prevent defeat of rights arising under decree by private alienations pendente lite. Principle applies irrespective of actual notice of pending litigation and binds transferee even if transfer is otherwise bona fide.

A mortgage suit directly places rights in immovable property “in question” within meaning of Section 52 T.P. Act. Consequently, any transfer effected during pendency of mortgage litigation remains subservient to rights determined in decree and subsequent execution proceedings. Pendency under Section 52 continues not merely till decree but till complete satisfaction or discharge of decree.

Pendente lite transferee substantially steps into shoes of judgment-debtor and ordinarily answers description of “representative” under Section 47 CPC. Questions relating to execution, discharge or satisfaction of decree affecting such transferee are therefore required to be adjudicated within execution proceedings themselves and not through separate suit.

Scheme of Order XXI Rules 89, 90 and 92 CPC provides complete code governing challenge to court auction sales on grounds of irregularity, fraud or invalidity. Once remedies are available within execution framework, institution of independent suit is generally barred.

However, Court clarified distinction between:

• transferee deriving title pendente lite from judgment-debtor,
  and
• stranger/independent third party claiming independent right unconnected with judgment-debtor.

Bar under Section 47 CPC primarily attaches where claimant derives interest through judgment-debtor and controversy substantially concerns execution of decree.

Fraud vitiates all judicial proceedings and where allegations disclose fraudulent suppression, collusive execution process or sale conducted behind back of affected parties, Court is entitled to closely scrutinize legality of execution sale notwithstanding technical objections regarding maintainability. Yet mere allegation of fraud without foundational pleadings or proof cannot automatically bypass statutory remedies under Order XXI CPC.

Court reiterated that auction sale conducted through court acquires sanctity upon confirmation under Order XXI Rule 92 CPC and challenges thereto must ordinarily conform strictly to procedure prescribed under CPC. Judicial sales cannot be lightly unsettled after confirmation except on established grounds recognised by statute.

Doctrine of lis pendens operates independently of registration or actual knowledge and transferee pendente lite cannot claim equities superior to those of transferor/judgment-debtor.

Jayaram Mudaliar v. Ayyaswami; Amit Kumar Shaw v. Farida Khatoon; Silverline Forum Pvt. Ltd. v. Rajiv Trust; Bhanwar Lal v. Satyanarain; Sailendra Narayan Bhanja Deo v. State of Orissa, referred to.

(Paras 18 to 39)

ANALYSIS OF FACTS AND LAW

Supreme Court analysed controversy at intersection of:

• doctrine of lis pendens under Section 52 T.P. Act,
• execution jurisprudence under Section 47 CPC,
• and remedies against auction sales under Order XXI CPC.

Factual foundation revealed that:

• mortgage litigation had already commenced,
• mortgaged property was subject matter of recovery proceedings,
• and during pendency of suit/decree proceedings, judgment-debtors alienated property in favour of plaintiffs.

Plaintiffs attempted to avoid consequences of execution sale by:

• asserting bona fide purchase,
• pleading absence of notice,
• alleging fraud in execution proceedings,
• and instituting separate civil suit challenging auction sale.

Supreme Court first undertook detailed exposition of Section 52 T.P. Act and reiterated that:

• lis pendens is based on necessity to preserve authority of Court,
• transfer pendente lite does not become void,
• but transferee takes property subject to ultimate result of litigation.

Court emphasized that:

• actual notice is irrelevant,
• constructive notice is unnecessary,
• and statutory policy itself binds pendente lite transferee.

Most significant aspect of judgment is Court’s treatment of execution remedies under CPC.

Court harmonised:

• Section 47 CPC,
• Order XXI Rules 89, 90, 92 and 99 CPC,
  and clarified procedural architecture governing challenges to execution sales.

Supreme Court held that:

• pendente lite transferee substantially represents judgment-debtor,
• therefore objections relating to execution sale ordinarily must be raised within execution proceedings themselves,
• and separate suits are generally barred.

Court however drew nuanced distinction between:

1. representative transferees deriving title from judgment-debtor,
   and
2. genuine independent third parties asserting autonomous rights.

Only latter category may escape statutory bar in appropriate circumstances.

Court also analysed effect of fraud allegations in execution jurisprudence. While reaffirming that fraud vitiates proceedings, Supreme Court cautioned that:

• vague allegations of fraud cannot be used to circumvent statutory execution remedies,
• and confirmed auction sales cannot be lightly reopened.

Another important doctrinal clarification made by Court was:
pendency under Section 52 T.P. Act continues till complete satisfaction of decree and execution proceedings are integral continuation of original litigation.

Thus transfer effected even after decree but before satisfaction remains subject to lis pendens.

Supreme Court therefore treated pendente lite purchasers as bound by execution outcome and restricted scope for collateral challenges through independent suits.

RATIO

A transferee pendente lite of mortgaged property is bound by doctrine of lis pendens under Section 52 Transfer of Property Act irrespective of notice and takes property subject to decree and execution proceedings. Such transferee ordinarily represents judgment-debtor within meaning of Section 47 CPC and challenges relating to execution sale, irregularity or fraud must ordinarily be raised within framework of Order XXI CPC and not through separate suit. Lis pendens continues till complete satisfaction of decree, and confirmed court auction sales cannot be collaterally impeached except in accordance with statutory remedies prescribed under CPC.

Jurisdiction of Waqf Tribunal under Sections 83 and 85 of Waqf Act is not plenary but confined only to disputes specifically required by Act to be determined by Tribunal. Section 83 is merely enabling provision for constitution of Tribunal and does not itself confer substantive adjudicatory jurisdiction. Tribunal can determine disputes regarding whether property is waqf property only where such property is included in “List of Auqaf” under Section 5 or registered under Section 37. Mere assertion of “waqf by user” without statutory recognition under Act does not confer jurisdiction upon Waqf Tribunal, and in such cases Civil Court jurisdiction is not barred.

 APEX COURT HELD THAT 

WAQF ACT, 1995 – Ss. 6, 7, 83 & 85 – Jurisdiction of Waqf Tribunal – Scope and extent – Whether Tribunal can adjudicate every dispute relating to waqf or waqf property – Necessity of inclusion in “List of Auqaf” or registration under Act – Ouster of Civil Court jurisdiction – Interpretation of S.83 – “under this Act” – Waqf by user – Suit for injunction simpliciter before Tribunal – Maintainability – CODE OF CIVIL PROCEDURE, 1908 – O.VII R.11.

Respondent instituted suit before Waqf Tribunal seeking perpetual injunction restraining defendants from obstructing offering of prayers in premises situated in residential apartment complex contending that portion of ground floor had become Mosque and waqf by user since year 2008 – Defendants disputed existence of Mosque and contended property neither notified in “List of Auqaf” under Section 5 nor registered under Section 37 of Waqf Act – Application under Order VII Rule 11 CPC filed contending Tribunal lacked jurisdiction was rejected by Tribunal and High Court – Whether Tribunal possessed jurisdiction to entertain suit.

Held : Jurisdiction of Waqf Tribunal constituted under Section 83 Waqf Act is not plenary or all-encompassing. Ouster of Civil Court jurisdiction under Section 85 is confined only to matters expressly or necessarily required by Act to be determined by Tribunal. Civil Court jurisdiction cannot be excluded by implication beyond precise statutory conferment.

Sections 6 and 7 confer jurisdiction upon Tribunal to determine whether particular property is waqf property or whether waqf is Sunni or Shia only when such property is included in “List of Auqaf” under Section 5 or register maintained under Section 37. Amendment of 2013 expanding definition of “List of Auqaf” to include registered waqfs under Section 37 is clarificatory and retrospective in operation.

Section 83 is merely enabling provision authorising constitution of Tribunal for adjudication of disputes “under this Act”. Words “under this Act” are crucial and restrict jurisdiction of Tribunal only to disputes for which substantive provisions of Act confer adjudicatory power. Section 83 by itself does not create independent or expansive jurisdiction over every dispute relating to waqf or waqf property.

Interpretation adopted in Ramesh Gobindram v. Sugra Humayun Mirza Wakf correctly lays down law that exclusion of Civil Court jurisdiction is confined to matters specifically entrusted to Tribunal under Act. Contrary expansive interpretation adopted in W.B. Wakf Board v. Anis Fatma Begum and followed in subsequent decisions does not correctly interpret Section 83.

Tribunal can decide disputes whether property is waqf property only where property already has statutory status under Act through inclusion in notified list or registration. Mere assertion of “waqf by user” without such statutory recognition does not automatically confer jurisdiction upon Tribunal.

In present case, plaint itself disclosed that alleged Mosque came into existence only in year 2008 and there was no averment that subject property was included in notified “List of Auqaf” or registered under Section 37. Therefore, dispute regarding existence and status of alleged waqf property was beyond jurisdiction of Tribunal.

Suit for injunction simpliciter before Waqf Tribunal without prior determination or statutory recognition of property as waqf property was not maintainable. Plaint deserved rejection under Order VII Rule 11 CPC for want of jurisdiction.

Ramesh Gobindram v. Sugra Humayun Mirza Wakf, affirmed;
Rashid Wali Beg v. Farid Pindari, explained and disagreed with on interpretation of Section 83;
W.B. Wakf Board v. Anis Fatma Begum, held not correctly interpreting Section 83;
Punjab Wakf Board v. Sham Singh Harike; Bhanwar Lal v. Rajasthan Board of Muslim Wakf; Faseela M. v. Munnerul Islam Madrasa Committee, relied on.

(Paras 12 to 18, 28 to 46)

ANALYSIS OF FACTS AND LAW

Supreme Court undertook exhaustive reconsideration of conflicting precedents regarding jurisdiction of Waqf Tribunal under Sections 83 and 85 of Waqf Act, 1995.

Core controversy before Court was:
whether Section 83 itself confers broad plenary jurisdiction upon Waqf Tribunal to adjudicate every dispute relating to waqf or waqf property.

Court traced judicial conflict beginning from:

• Ramesh Gobindram v. Sugra Humayun Mirza Wakf,
  which adopted restrictive interpretation,
  and later decisions like:
• W.B. Wakf Board v. Anis Fatma Begum,
• Rashid Wali Beg v. Farid Pindari,
  which interpreted Section 83 expansively.

Supreme Court reaffirmed foundational principle that:

• exclusion of Civil Court jurisdiction cannot be readily inferred,
• and statutory tribunals possess only specifically conferred jurisdiction.

Court closely analysed language of Sections 6, 7, 83 and 85 and held:

• Sections 6 and 7 specifically empower Tribunal to decide disputes regarding whether property is waqf property only if property is included in statutory “List of Auqaf” or registered under Act;
• Section 85 bars Civil Court jurisdiction only regarding matters “required by or under this Act” to be determined by Tribunal.

Most significant aspect of judgment was reinterpretation of Section 83.

Court emphasised that earlier expansive decisions omitted crucial words:
“under this Act”
occurring in Section 83(1).

According to Supreme Court:

• Section 83 merely provides machinery for constitution of Tribunal;
• it does not itself create substantive jurisdiction;
• substantive jurisdiction must independently arise from other provisions of Act.

Court therefore held that Section 83 cannot be treated as omnibus source of jurisdiction covering all disputes remotely connected with waqf property.

On facts, Court found:

• alleged Mosque was claimed to have come into existence only in 2008,
• no notification under Section 5 existed,
• no registration under Section 37 existed,
• and therefore property lacked statutory recognition as waqf property under Act.

Consequently, Tribunal lacked jurisdiction even to entertain injunction suit based merely on assertion of “waqf by user.”

Supreme Court also clarified that 2013 amendment expanding definition of “List of Auqaf” to include registered waqfs under Section 37 was clarificatory and retrospective. However, even after amendment, Tribunal jurisdiction remains confined to properties having statutory status under Act.

Accordingly, plaint was liable to rejection under Order VII Rule 11 CPC.

RATIO

Jurisdiction of Waqf Tribunal under Sections 83 and 85 of Waqf Act is not plenary but confined only to disputes specifically required by Act to be determined by Tribunal. Section 83 is merely enabling provision for constitution of Tribunal and does not itself confer substantive adjudicatory jurisdiction. Tribunal can determine disputes regarding whether property is waqf property only where such property is included in “List of Auqaf” under Section 5 or registered under Section 37. Mere assertion of “waqf by user” without statutory recognition under Act does not confer jurisdiction upon Waqf Tribunal, and in such cases Civil Court jurisdiction is not barred. 

Where specific statutory remedy for rejection of plaint exists under Order VII Rule 11 CPC, High Court cannot invoke supervisory jurisdiction under Article 227 Constitution to strike off plaint. Availability of efficacious remedy under CPC constitutes near total bar against exercise of Article 227 jurisdiction in ordinary civil proceedings. Order VI Rule 16 CPC permitting striking out of objectionable pleadings cannot be expanded to authorise striking down of entire plaint. Supervisory jurisdiction under Article 227 is exceptional in nature and cannot be used to bypass statutory procedures or adjudicate disputed questions of fact in civil suits.

 APEX COURT HELD THAT 

CONSTITUTION OF INDIA – Art. 227 – Supervisory jurisdiction – Scope and limitations – Availability of alternative remedy under Code of Civil Procedure – Whether High Court can strike off plaint under Art.227 when remedy under O.VII R.11 CPC exists – CODE OF CIVIL PROCEDURE, 1908 – O.VI R.16 & O.VII R.11 – Distinction between striking out pleadings and rejection of plaint – Fraudulent or vexatious suit – Scope.

Plaintiff instituted suit for permanent injunction claiming possession over suit property on basis of inheritance through mother under registered sale deed – Defendants disputed title and contended that sale deed relied upon by plaintiff was fabricated and fraudulent – Defendants filed Civil Revision Petition under Article 227 Constitution before High Court praying for striking off plaint by invoking principles underlying Order VII Rule 11 and Order VI Rule 16 CPC – High Court, after examining defence and disputed documents, recorded findings that plaintiff relied upon forged sale deed, suit was false and fraudulent, and consequently struck off plaint in exercise of supervisory jurisdiction under Article 227 – Sustainability.

Held : Supervisory jurisdiction under Article 227 Constitution is extraordinary, discretionary and supervisory in nature and cannot ordinarily be invoked where specific statutory remedy exists under Code of Civil Procedure. Availability of efficacious remedy under CPC constitutes near total bar against exercise of powers under Article 227 in matters arising from civil proceedings.

Order VII Rule 11 CPC specifically provides statutory mechanism for rejection of plaint on enumerated grounds including absence of cause of action or suit barred by law. Once legislature has provided specific remedy and procedure for rejection of plaint, High Court cannot bypass statutory framework and directly strike off plaint in exercise of supervisory jurisdiction under Article 227.

Exercise of powers under Article 227 cannot be permitted to supplant or substitute statutory remedies available under CPC. Supervisory jurisdiction is not intended to convert High Court into appellate or error-correcting forum in ordinary civil disputes.

Order VI Rule 16 CPC dealing with striking out pleadings operates in entirely different field from rejection of plaint under Order VII Rule 11 CPC. Order VI Rule 16 permits striking out of unnecessary, scandalous, frivolous or vexatious portions of pleadings but does not authorise striking down of entire plaint. Rejection of plaint can be ordered only by resort to Order VII Rule 11 CPC and on grounds specified therein.

Questions whether plaint discloses cause of action, whether suit is barred by law, or whether allegations are fraudulent ordinarily involve factual inquiry and adjudication. Such issues cannot be conclusively determined in supervisory jurisdiction under Article 227 bypassing statutory procedure prescribed under CPC.

High Court committed manifest error in recording findings regarding alleged forgery and fraud in sale deed by examining disputed questions of fact in proceedings under Article 227 and striking off plaint without directing defendants to take recourse to Order VII Rule 11 CPC.

Availability of alternative remedy under CPC must ordinarily deter High Court from exercising powers under Article 227 except in rare cases of grave miscarriage of justice or patent lack of jurisdiction.

Shalini Shyam Shetty v. Rajendra Shankar Patil; Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society; Radhey Shyam v. Chhabi Nath; K. Valarmathi v. Kumaresan; State v. Navjot Sandhu, relied on.

(Paras 5 to 10)

ANALYSIS OF FACTS AND LAW

Supreme Court undertook extensive examination of constitutional limitations governing exercise of supervisory jurisdiction under Article 227 Constitution in civil proceedings.

Central issue before Court was:
whether High Court could directly strike off plaint under Article 227 when specific statutory remedy under Order VII Rule 11 CPC was available to defendants.

Court analysed long line of precedents governing Article 227 and reiterated that supervisory jurisdiction:

• is extraordinary,
• must be exercised sparingly,
• cannot function as appellate jurisdiction,
• and cannot substitute statutory remedies available under CPC.

Supreme Court particularly emphasised distinction between:

• correcting jurisdictional errors,
  and
• adjudicating ordinary civil disputes involving disputed questions of fact.

Court observed that High Court in present case virtually conducted mini-trial under Article 227 by:

• examining rival title claims,
• assessing genuineness of sale deed,
• accepting defence allegations of fraud,
• and recording findings that suit was false and fraudulent.

Such exercise, Court held, was wholly impermissible in supervisory jurisdiction.

Supreme Court then analysed structural distinction between:

• Order VI Rule 16 CPC,
  and
• Order VII Rule 11 CPC.

Court clarified:

• Order VI Rule 16 only enables striking out objectionable portions of pleadings,
• whereas rejection of entire plaint is governed exclusively by Order VII Rule 11 CPC.

Therefore, Order VI Rule 16 cannot be used indirectly to justify striking down whole plaint under Article 227.

Court further stressed that grounds under Order VII Rule 11 CPC themselves often involve factual inquiry:

• whether plaint discloses cause of action,
• whether suit is barred by law,
• whether valuation/stamp defects exist,
  etc.

Hence, legislature intentionally created procedural framework requiring such questions to be examined by civil court itself. High Court could not bypass that framework through constitutional jurisdiction.

Supreme Court strongly reaffirmed principle laid down in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society that where remedy exists under CPC, exercise of Article 227 jurisdiction should be treated as “near total bar”.

Accordingly, impugned judgment striking off plaint was set aside and liberty reserved to defendants to file proper application under Order VII Rule 11 CPC before trial court.

RATIO

Where specific statutory remedy for rejection of plaint exists under Order VII Rule 11 CPC, High Court cannot invoke supervisory jurisdiction under Article 227 Constitution to strike off plaint. Availability of efficacious remedy under CPC constitutes near total bar against exercise of Article 227 jurisdiction in ordinary civil proceedings. Order VI Rule 16 CPC permitting striking out of objectionable pleadings cannot be expanded to authorise striking down of entire plaint. Supervisory jurisdiction under Article 227 is exceptional in nature and cannot be used to bypass statutory procedures or adjudicate disputed questions of fact in civil suits.

A photocopy or mechanical reproduction of Power of Attorney constitutes only secondary evidence and cannot be relied upon unless foundational facts required under Sections 63 and 65 of Evidence Act are first established. Mere marking of photocopy as exhibit does not amount to proof. Presumption under Section 85 Evidence Act regarding due execution of Power of Attorney arises only after legally admissible original or properly proved secondary evidence is brought on record. Findings founded upon inadmissible photocopy or no evidence constitute perversity and can validly be interfered with by High Court under Section 100 CPC

APEX COURT HELD THAT 

INDIAN EVIDENCE ACT, 1872 – Ss. 63, 64, 65 & 85 – Secondary evidence – Photocopy of Power of Attorney – Admissibility and proof – Foundational facts – Mandatory requirements – Presumption under S.85 – When unavailable – REGISTRATION ACT, 1908 – S.33 – CODE OF CIVIL PROCEDURE, 1908 – S.100 – Scope of interference in Second Appeal – Misreading of documentary evidence – Reliance on inadmissible evidence – Power of Attorney allegedly conferring authority to alienate immovable property.

Plaintiff instituted suit for declaration, injunction and recovery of possession contending that Defendant No.1/brother-in-law fraudulently executed sale deeds in favour of Defendants Nos.2 and 3 by relying upon fabricated Power of Attorney allegedly interpolated to include power of sale – Plaintiff admitted execution of limited Power of Attorney only for management of properties and denied authority to alienate – Defendant No.1 relied upon notarised photocopy of alleged Power of Attorney (Exh.B-2) claiming comprehensive authority including power to sell – Trial Court decreed suit holding additions relating to “sale” appeared interpolated and original Power of Attorney was withheld – First Appellate Court reversed decree relying upon Exh.B-2 as secondary evidence and drawing presumptions under Section 85 Evidence Act and Section 33 Registration Act – High Court restored Trial Court decree in Second Appeal – Sustainability.

Held : Secondary evidence is exception to rule requiring proof by primary evidence under Section 64 Evidence Act. Before secondary evidence can be admitted, party relying upon such evidence must establish foundational facts namely:
(i) existence and execution of original document,
(ii) circumstances bringing case within clauses of Section 65,
and
(iii) reason for non-production of original.

Mere production or marking of photocopy does not amount to proof of document. Admissibility of secondary evidence requires compliance with statutory conditions under Sections 63 and 65 Evidence Act. Photocopy or mechanical reproduction of document is no evidence in absence of proof satisfying statutory requirements.

In present case, Exh.B-2 relied upon by Defendant No.1 was only notarised photocopy of alleged Power of Attorney. No factual foundation was laid regarding whereabouts of original document or circumstances justifying production of secondary evidence. No order permitting adducing of secondary evidence was brought on record. Consequently, Exh.B-2 could not legally be treated as admissible documentary evidence for proving authority to alienate immovable property.

Presumption under Section 85 Evidence Act regarding due execution and authentication of Power of Attorney arises only when foundational requirement of admissible document is first satisfied. In absence of legally admissible original or properly proved secondary evidence, neither Section 85 Evidence Act nor Section 33 Registration Act could be invoked.

First Appellate Court committed serious illegality by relying upon inadmissible photocopy and by itself comparing disputed signatures without assistance of expert though admitted signatures themselves were not properly proved. Finding based on no evidence or inadmissible evidence constitutes perversity giving rise to substantial question of law under Section 100 CPC.

High Court, while exercising jurisdiction under Section 100 CPC, is entitled to interfere where findings of First Appellate Court are based on misreading of documentary evidence, reliance upon inadmissible evidence or perversity. High Court in present case did not undertake prohibited reappreciation of evidence but corrected erroneous legal approach adopted by First Appellate Court.

A photocopy of Power of Attorney, not proved in accordance with Sections 63 and 65 Evidence Act, cannot confer authority to alienate immovable property nor validate sale deeds executed thereon.

Hero Vinoth v. Seshammal; H. Siddiqui v. A. Ramalingam; Smt. J. Yashoda v. K. Shobha Rani; Jagmail Singh v. Karamjit Singh; Dhanpat v. Sheo Ram; O. Bharathan v. K. Sudhakaran, relied on.

(Paras 16 to 24)

ANALYSIS OF FACTS AND LAW

Supreme Court analysed controversy from two interconnected angles:

1. scope of High Court’s jurisdiction under Section 100 CPC;
2. admissibility and evidentiary value of photocopy of Power of Attorney relied upon by defendants.

Court first reiterated settled principles governing Section 100 CPC and clarified that although High Court ordinarily cannot reappreciate evidence, interference is permissible where findings of First Appellate Court:

• are perverse,
• based on no evidence,
• founded upon inadmissible evidence,
• or arise from misreading of documents.

Court emphasised that perversity itself constitutes substantial question of law.

On facts, central controversy was whether Defendant No.1 possessed authority to alienate plaintiff’s immovable property. Defendant relied exclusively upon Exh.B-2, which admittedly was not original Power of Attorney but only notarised photocopy.

Supreme Court undertook detailed exposition of law relating to secondary evidence under Sections 63, 64 and 65 Evidence Act and held:

• primary evidence is rule;
• secondary evidence is exceptional;
• and party seeking to rely upon photocopy must first lay factual foundation explaining non-production of original and satisfying conditions of Section 65.

Court stressed that admissibility of secondary evidence is distinct from proof of contents. Both requirements are conjunctive.

Defendant failed to:

• establish whereabouts of original Power of Attorney,
• prove circumstances permitting secondary evidence,
• or obtain any order permitting secondary evidence.

Therefore, Exh.B-2 remained merely unproved photocopy having no evidentiary value in law.

Supreme Court strongly criticised First Appellate Court for:

• relying on inadmissible photocopy,
• independently comparing disputed signatures,
• and invoking presumptions under Section 85 Evidence Act without foundational admissibility of document itself.

Court clarified that statutory presumptions regarding notarised Power of Attorney arise only after legally admissible document is properly brought on record.

High Court therefore rightly corrected legal error committed by First Appellate Court and restored Trial Court decree declaring impugned sale deeds void.

RATIO

A photocopy or mechanical reproduction of Power of Attorney constitutes only secondary evidence and cannot be relied upon unless foundational facts required under Sections 63 and 65 of Evidence Act are first established. Mere marking of photocopy as exhibit does not amount to proof. Presumption under Section 85 Evidence Act regarding due execution of Power of Attorney arises only after legally admissible original or properly proved secondary evidence is brought on record. Findings founded upon inadmissible photocopy or no evidence constitute perversity and can validly be interfered with by High Court under Section 100 CPC

Framing of substantial question of law prior to hearing of Second Appeal under Section 100 CPC is mandatory and not mere procedural formality. High Court must formulate such question(s) before hearing appeal and afford parties opportunity to address arguments thereon. Framing substantial question of law only in final judgment vitiates exercise of jurisdiction under Section 100 CPC. Further, additional documents cannot be relied upon at second appellate stage without complying with procedure prescribed under Order XLI Rule 27 CPC and without granting opportunity to affected party to contest their admissibility and relevance

 APEX COURT HELD THAT

CODE OF CIVIL PROCEDURE, 1908 – S.100 – Second Appeal – Framing of substantial question of law – Mandatory requirement – Jurisdiction of High Court – Additional documents at second appellate stage – O. XLI R.27 CPC – Scope.

Trial Court decreed suit for declaration of title and permanent injunction in respect of Schedule ‘A’ property and declaration regarding Schedule ‘B’ property as public lane – First Appellate Court reversed decree and dismissed suit – High Court in Second Appeal restored decree of Trial Court and allowed appeal – Substantial questions of law, however, framed only in final judgment while allowing appeal – High Court also relied upon judgment dated 11.03.1969 produced at second appellate stage treating it as additional document and drawing presumption under Section 114 Evidence Act without following procedure under Order XLI Rule 27 CPC – Sustainability.

Held : Scheme of Section 100 CPC contemplates mandatory two-stage exercise. High Court must first satisfy itself that case involves substantial question of law and formulate such question at threshold stage. Thereafter, Second Appeal must be heard on formulated substantial question(s) of law after affording parties opportunity to address arguments thereon.

Requirement of framing substantial question of law prior to hearing is not empty formality but mandatory safeguard controlling exercise of jurisdiction in Second Appeal. Framing substantial question of law only in final judgment, after conclusion of hearing, defeats statutory mandate and deprives parties of effective opportunity to contest maintainability and merits of proposed questions.

In present case, record disclosed that substantial questions of law were framed only in impugned judgment itself and not at admission stage or prior to hearing. Consequently, appellants were denied opportunity to advance submissions on such questions. Judgment of High Court therefore stood vitiated on this ground alone.

High Court further committed error in relying upon additional document produced at second appellate stage without following mandatory procedure under Order XLI Rule 27 CPC and without granting appellants opportunity to contest admissibility or relevance of said document.

Matter remanded to High Court for fresh consideration with direction to first formulate substantial questions of law, hear parties thereon and thereafter decide appeal afresh in accordance with law. All questions including admissibility of additional documents left open.

Bhagyashree Anant Gaonkar v. Narendra @ Nagesh Bharma Holkar, relied on.

(Paras 8 to 15)

ANALYSIS OF FACTS AND LAW

Supreme Court focused on procedural discipline governing exercise of jurisdiction under Section 100 CPC. Court noted that:

• Trial Court had decreed suit,
• First Appellate Court reversed decree,
• and High Court restored decree in Second Appeal.

However, High Court failed to comply with mandatory statutory requirement of framing substantial questions of law prior to hearing appeal. Instead, substantial questions were formulated for first time in final judgment itself while allowing Second Appeal.

Court analysed Section 100 CPC and emphasised that it creates jurisdictional limitation upon High Court in Second Appeal. Unlike first appeal, Second Appeal cannot be heard on facts generally but only on substantial question of law formally identified by Court.

Supreme Court described Section 100 CPC as involving “two-stage exercise”:

1. High Court must first formulate substantial question(s) of law;
2. Appeal thereafter must be heard on those formulated questions after giving parties opportunity to argue.

Court held that this safeguard is mandatory because respondent is entitled not only to argue merits of substantial question but also to contend that no such substantial question arises at all.

Supreme Court relied upon Bhagyashree Anant Gaonkar v. Narendra @ Nagesh Bharma Holkar reiterating that:

• substantial questions ordinarily must be framed at admission stage,
• arguments must proceed on such questions,
• and Court may subsequently reframe/add questions after hearing parties.

Court further found procedural illegality in High Court’s reliance upon additional document dated 11.03.1969 at second appellate stage without complying with Order XLI Rule 27 CPC. Appellants were denied opportunity to contest admissibility and relevance of said document.

Since mandatory jurisdictional requirements were violated, Supreme Court set aside impugned judgment without entering into merits and remanded matter to High Court for fresh adjudication.

RATIO

Framing of substantial question of law prior to hearing of Second Appeal under Section 100 CPC is mandatory and not mere procedural formality. High Court must formulate such question(s) before hearing appeal and afford parties opportunity to address arguments thereon. Framing substantial question of law only in final judgment vitiates exercise of jurisdiction under Section 100 CPC. Further, additional documents cannot be relied upon at second appellate stage without complying with procedure prescribed under Order XLI Rule 27 CPC and without granting opportunity to affected party to contest their admissibility and relevance