TANUKU TALUK VILLAGE OFFICERS’ ASSOCIATION versus TANUKU MUNICIPALITY & ORS. ETC. on 12 March 2019

[2019] 4 S.C.R. 1063

TANUKU TALUK VILLAGE OFFICERS’ ASSOCIATION

v.

TANUKU MUNICIPALITY & ORS. ETC.

(Civil Appeal Nos. 2918-2921 of 2019)

MARCH 12, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Code of Civil Procedure, 1908 – s.100 – Two civil suits filedby the appellant against the respondents in relation to the land inquestion – Suits decreed vide order dated 14.08.1996 – Appellantalso filed suit before the Rent Controller for eviction of respondentno.1– Rent Controller vide order dated. 20.01.1997 passed orderin favour of the appellant – Challenged by respondent no.1, whichwas allowed – Appellant filed application in the suit before the RentController for releasing of cheque of Rs.42,400/- deposited byrespondent no.1 towards the rent and arrears of the suit land –Dismissed vide order dated 14.05.1997 – Challenged by appellant,which was dismissed and order dated 14.05.1997 was confirmed –Respondent no.1 filed appeals against order dated 14.08.1996,which was allowed and order dated 14.08.1996 was set aside –Appellant filed second appeals in the High Court – High Courtdismissed the appeals – Revision petitions also dismissed by HighCourt – Held: Though the High Court framed three substantialquestions but did not answer any of them on their respective meriteither way – Instead it dismissed the second appeals on the question,which it had not framed – High Court failed to see that the secondappeal could be decided only on the question(s) framed u/s. 100(4), CPC, 1908 – Appeals remanded to the High Court for hearingafresh on the merits and in accordance with law.

Allowing the appeals, the Court

HELD: 1.1 The High Court though admitted the secondappeals on the three substantial questions of law but instead ofanswering these questions, dismissed the appeals by answeringthe question, which was not framed. The High Court failed to seethat the second appeal could be decided only on the question(s)

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Aframed under Section 100 (4) of the Code of Civil Procedure,1908 (“the Code”). However, if at the time of hearing, the HighCourt considers that the second appeal involves any othersubstantial question(s) of law, it has the jurisdiction to frame suchquestion(s) but only by assigning the reasons. At the same time,the respondent is also entitled to argue at the time of hearingBthat the question(s) though framed are not the substantialquestion(s) of law involved in appeal (Section 100 (5) of the Codeand its proviso). [Paras 17, 18] [1067-C-F]

1.2 A fortiori, the disposal of the second appeal by the HighCourt by answering the question(s) which was/were not framedCeither at the time of admission of the second appeal or framedwithout ensuring compliance of the mandatory procedureprescribed in proviso to Section 100 (5) of the Code is not legallysustainable. Though the High Court framed three substantialquestions but did not answer any of them on their respectiveDmerit either way. Instead the High Court dismissed the secondappeals on the question, which it had not framed. The questionon which the High Court dismissed the appeals was in relation tothe maintainability of the suit and this question was not a part ofthe three questions framed and nor the High Court framed such question by taking recourse to powers under Section 100(5)Eproviso of the Code. The impugned order is set aside. The appealsare remanded to the High Court for their hearing afresh on themerits and in accordance with law. No opinion expressed on themerits of the case having formed an opinion to remand the case to the High Court for their fresh disposal on the merits. TheFHigh Court will accordingly decide the second appeals as well asrevision petitions uninfluenced by any observations made in theimpugned order and this order. [Paras 19, 20, 22 and 23] [1068-F-H; 1069-A-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2918-G2921 of 2019.

From the Judgment and Order dated 01.05.2015 of the HighCourt of Judicature at Hyderabad for the State of Telangana and TheState of Andhra Pradesh in Second Appeal Nos. 396 and 414 of 2004and C.R.P. Nos. 2069 and 2073 of 2004.

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K. Raghavacharyulu, Kailash Pandey, Ranjeet Singh, Ms. ArunimaPal, Ms. Nupur Sharma, J. K. Mishra (for Gaichangpou Gangmei), Advs.for the Appellant.

Ms. Prerna Singh, Guntur Prabhakar, Prashant M., Advs. for theRespondents.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. These appeals are filed against the final judgment and orderdated 01.05.2015 passed by the High Court of Judicature at Hyderabadfor the State of Telangana and the State of Andhra Pradesh in SecondAppeal Nos.396 of 2004 and 414 of 2004 and C.R.P. Nos. 2069 of 2004and 2073 of 2004, whereby the High Court dismissed the said appealsand Revision Petitions filed by the appellant herein.

3. A few facts need mention in brief infra for the disposal ofthese appeals.

4. The appellant is the plaintiff and the respondents are thedefendants in the civil suits filed by the appellant against the respondentsin relation to the suit land out of which these appeals arise.

5. The appellant filed two civil suits against the respondents inrelation to the suit land. One was for grant of permanent injunction (OSNo.384 of 1986) and the other was for recovery of arrears of rent (OSNo.226 of 1987). Both the civil suits were filed in the Court of 1[st]Additional District Munsif, Tanuku.

6. By Judgment/decree dated 14.08.1996, the Additional DistrictMunsif decreed both the civil suits.

7. The plaintiff also filed a suit bearing RCC No.5/1987 beforethe Rent Controller(Principal District Munsif), Tanuku for eviction ofdefendant No.1(respondent No.1 herein). By order dated 20.01.1997,the Rent Controller passed a decree and order in favour of the plaintiffand directed defendant No.1 to handover the suit land to the plaintiff.

8. Thereafter, the plaintiff filed an application bearing I.A. No.268of 1997 in R.C.C. No.5 of 1987 before the Rent Controller(PrincipalDistrict Munsif), Tanuku for releasing of cheque of Rs.42,400/- depositedby respondent No.1 towards the rent and arrears of the suit land. By A

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Aorder dated 14.05.1997, the Rent Controller dismissed the applicationfiled by the plaintiff.

9. The plaintiff felt aggrieved by the said order and filed C.M.A.No.13 of 1997 before the Court of Senior Civil Judge at Tanuku. Beingaggrieved by the order dated 20.01.1997 of the Rent Controller(PrincipalBDistrict Munsif), defendant No.1 filed C.M.A. No.8 of 1997 before theCourt of Senior Civil Judge at Tanuku.

10. The Senior Civil Judge, Tanuku took up both the matterstogether. Vide order dated 21.01.2004, the Senior Civil Judge allowedthe application filed by defendant No.1 and set aside the order datedC20.01.1997 passed by the Rent Controller(Principal District Munsif) anddismissed the application filed by the plaintiff by confirming the orderdated 14.05.1997.

11. Being aggrieved by the order dated 14.08.1996 of the AdditionalDistrict Munsif, defendant No.1 filed appeals being A.S. Nos.69 & 70/D1996 before the Senior Civil Judge, Tanuku. Vide order dated 21.01.2004,the Senior Civil Judge allowed the appeals and set aside the order dated14.08.1996 passed by the Additional District Munsif.

12. The appellant (plaintiff) felt aggrieved by both the orders ofthe First Appellate Court dated 21.01.2014 and filed two Second AppealsEbeing S.A. Nos.396 & 414 of 2004 and C.R.P.Nos.2069 and 2073 of2004 in the High Court of Andhra Pradesh.

13. The High Court admitted the Second Appeals on the followingthree substantial questions of law.

“a) Whether the lower appellate court is right in holdingFthat plaintiff society became defunct without there beingany evidence to that effect ?

b) Whether the immovable property purchased by aregistered society under registered sale deeds shallautomatically vests with its admitted tenant without there Gbeing any deed of conveyance ?

c) Whether a tenant while admitting that it was only a tenantinducted into possession for a rent can claim ownershipover the very same property contrary to the provisions ofSection 116 of the Indian Evidence Act ?”

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14. By impugned order, the High Court dismissed the appeals aswell as revision petitions, which has given rise to filing of these appealsby way of special leave in this Court by the plaintiff.

15. So, the short question, which arises for consideration in theseappeals is whether the High Court was justified in dismissing the plaintiff’sSecond Appeals.

16. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeals and whilesetting aside the impugned order, remand the case to the High Court forthe disposal of the second appeals and revision petitions afresh on meritsas indicated below.

17. The need to remand the case to the High Court has arisenbecause we find, on perusal of the impugned order, that the High Courtthough admitted the second appeals on the aforementioned threesubstantial questions of law but instead of answering these questions,dismissed the appeals by answering the question, which was not framed.

18. In our view, the High Court failed to see that the second appealcould be decided only on the question(s) framed under Section 100 (4)of the Code of Civil Procedure, 1908 (hereinafter referred to as “theCode”). However, if at the time of hearing, the High Court considersthat the second appeal involves any other substantial question(s) of law,it has the jurisdiction to frame such question(s) but only by assigning thereasons. At the same time, the respondent is also entitled to argue at thetime of hearing that the question(s) though framed are not the substantialquestion(s) of law involved in appeal (See Section 100 (5) of the Codeand its proviso).

19. A fortiori, the disposal of the second appeal by the High Courtby answering the question(s) which was/were not framed either at thetime of admission of the second appeal or framed without ensuringcompliance of the mandatory procedure prescribed in proviso to Section100 (5) of the Code is not legally sustainable.

20. As mentioned above, though the High Court framed threesubstantial questions but did not answer any of them on their respectivemerit either way. Instead the High Court dismissed the second appealson the question, which it had not framed. The question on which theHigh Court dismissed the appeals was in relation to the maintainability A

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Aof the suit and this question was not a part of the three questions framedand nor the High Court framed such question by taking recourse topowers under Section 100(5) proviso of the Code.

21. Learned counsel for the respondents made sincere attempt inher submission that the findings recorded by the High Court on its meritBis just and proper and hence should not be disturbed. We cannot accepther submission in the light of what is held above. The respondents,therefore, will be at liberty to raise such pleas before the High Court inaccordance with law consequent upon the matter now being remandedto the High Court.

C22. In view of the foregoing discussion, the appeals succeed andare accordingly allowed. The impugned order is set aside. The appealsare remanded to the High Court for their hearing afresh on the meritsand in accordance with law. Needless to say, the High Court will disposeof the appeals as well as the revision petitions because all the four matterswere heard together and disposed of by a common order keeping inDview the requirements of Section 100 of the Code, as mentioned above,insofar as they relate to second appeals.

23. We have not expressed any opinion on the merits of the casehaving formed an opinion to remand the case to the High Court for theirfresh disposal on the merits as indicated above. The High Court willEaccordingly decide the second appeals as well as revision petitionsuninfluenced by any observations made in the impugned order and thisorder.

Divya PandeyF

Appeals allowed.

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