SURAT SINGH (DEAD) versus SIRI BHAGWAN & ORS. on 19 February 2018

Issues

[2018] 1 S.C.R. 1063

SURAT SINGH (DEAD)

v.

SIRI BHAGWAN & ORS.

(Civil Appeal Nos. 9118-9119 of 2010)

FEBRUARY 19, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Code of Civil Procedure, 1908 : s. 100 – Second appeal –Substantial question of law – On facts, the High Court allowed thesecond appeal, after hearing the appellant of second appeal onlyand not hearing the contesting respondent No.4 who had filed anapplication u/s. 151 r/w Or. LXI, r. 21 CPC praying for anopportunity of hearing – High Court did not frame any substantialquestion of law while admitting the appeal as per sub-section(4) ofSection 100 though it remained pending for a long time – Whileproceeding to allow the second appeal, the High Court framed thesubstantial question of law in the impugned judgment – Sustainabilityof – Held: Not sustainable – High Court failed to follow theprocedure prescribed u/s. 100 while allowing the second appealand thus, committed a jurisdictional error calling for interferenceby this Court – High Court while passing a final judgment framedthe substantial question of law for the first time and simultaneouslyanswered the said question in appellant’s favour – High Court wasunder a legal obligation to frame the substantial question at thetime of admission of the appeal after hearing the appellant or/andhis counsel under sub-section (4) of s. 100 – High Court had nojurisdiction to frame the substantial question at the time of writingof its final judgment in the appeal except to the extent permittedunder sub-section (5) – Procedure adopted by the High Court, alsoresulted in causing prejudice to the respondents because therespondents could not object to the framing of substantial questionof law.

Allowing the appeals, the Court

HELD: 1.1 When respondent No. 4 (appellant) filed anapplication under Section 151 read with Order LXI Rule 21 ofthe Code praying for an opportunity of hearing, his applicationwas dismissed by the High Court. The High Court erred in

A

B

C

DE

F

G

H

Adeciding the second appeal much less allowing it after hearingthe appellant of second appeal only and not hearing the contestingrespondent No.4 (appellant) and also erred in dismissing hisapplication filed under Section 151 read with Order LXI Rule 21CPC for rehearing of the second appeal. [Paras 12-14][1070-D-F]B

1.2 Having regard to the nature of controversy involved inthe case and further in the light of the grounds on which theapplication for rehearing of the appeal was founded, the HighCourt should have granted one opportunity of hearing torespondent No. 4 for opposing the second appeal and for thatCpurpose should have restored the second appeal for its re-hearingon merits in accordance with law. This Court cannot countenancethe manner in which the High Court decided the second appealon merits. [Paras 15, 16] [1070-G-H]

1.3 The High Court as it seems did not frame any substantialDquestion of law while admitting the appeal as per sub-section(4)of Section 100 though it remained pending for a long time.However, the High Court proceeded to allow the second appealand while doing so framed the substantial question of law in theconcluding para of the impugned judgment. The manner and theEprocedure adopted by the High Court while allowing the secondappeal are against the procedure laid down in Section 100. [Paras18, 19] [1071-B-E]

1.4 Sub-section (1) of Section 100 states that the secondappeal would be entertained by the High Court only if the HighFCourt is “satisfied” that the case involves a “substantial questionof law”. Sub- section (3) makes it obligatory upon the appellantto precisely state in memo of appeal the “substantial question oflaw” involved in the appeal. Sub-section (4) provides that wherethe High Court is satisfied that any substantial question of law isinvolved in the case, it shall formulate that question. In otherGwords, once the High Court is satisfied after hearing the appellantor his counsel, as the case may be, that the appeal involves asubstantial question of law, it has to formulate that question andthen direct issuance of notice to the respondent of the memo ofappeal along with the question of law framed by the High Court.

H

Sub-section (5) provides that the appeal shall be heard only onthe question formulated by the High Court under sub-section(4). In other words, the jurisdiction of the High Court to decidethe second appeal is confined only to the question framed by theHigh Court under sub-section(4). The respondent, however, atthe time of hearing of the appeal is given a right under sub-section(5) to raise an objection that the question framed by the HighCourt under sub-section (4) does not involve in the appeal. Thereason for giving this right to the respondent for raising suchobjection at the time of hearing is because the High Court framesthe question at the admission stage which is prior to issuance ofthe notice of appeal to the respondent. In other words, thequestion is framed behind the back of respondent and, therefore,sub-section(5) enables him to raise such objection at the time ofhearing that the question framed does not arise in the appeal.The proviso to sub-section (5), however, also recognizes thepower of the High Court to hear the appeal on any othersubstantial question of law which was not initially framed by theHigh Court under sub-section (4). However, this power can beexercised by the High Court only after assigning the reasons forframing such additional question of law at the time of hearing ofthe appeal. [Para 21] [1072-C-H]

1.5 On facts, it cannot be understood as to how the HighCourt while passing a final judgment in its concluding para couldframe the substantial question of law for the first time andsimultaneously answered the said question in appellant’s favour.Obviously, the Judge must have done it by taking recourse tosub-section (4) of Section 100 of the Code. The High Court wasunder a legal obligation to frame the substantial question at thetime of admission of the appeal after hearing the appellant or/andhis counsel under sub-section (4) of Section 100 of the Code, butthe High Court did it while passing the final judgment in itsconcluding para. Such novel procedure adopted by the HighCourt, is wholly contrary to the scheme of Section 100 of theCode and renders the impugned judgment legally unsustainable.[Paras 22-24] [1073-A-C]

1.6 The High Court had no jurisdiction to frame thesubstantial question at the time of writing of its final judgment in AB

C

D

E

F

G

H

Athe appeal except to the extent permitted under sub-section (5).The procedure adopted by the High Court, apart from it beingagainst the scheme of Section 100 of the Code, also resulted incausing prejudice to the respondents because the respondentscould not object to the framing of substantial question of law.Since the High Court failed to frame any substantial question ofBlaw under sub-section(4) of Section 100 at the time of admissionof the appeal, the respondents could not come to know on whichquestion of law, the appeal was admitted for final hearing. It cannotbe disputed that sub-section (5) gives the respondents a right toknow on which substantial question of law, the appeal wasCadmitted for final hearing. Sub-section (5) enables the respondentsto raise an objection at the time of final hearing that the questionof law framed at the instance of the appellant does not really arisein the case. [Paras 25-27] [1073-D-G]

1.7 The respondents are only required to reply whileDopposing the second appeal to the question formulated by theHigh Court under sub-section (4) and not beyond that. If thequestion of law is not framed under sub-section (4) at the time ofadmission or before the final hearing of the appeal, there remainsnothing for the respondent to oppose the second appeal at thetime of hearing. In this situation, the High Court would have noEjurisdiction to decide such second appeal finally for want of anysubstantial question of law. [Para 28] [1073-H; 1074-A]

1.8 The scheme of Section 100 is that once the High Courtis satisfied that the appeal involves a substantial question of law,such question shall have to be framed under sub-section(4) ofFSection 100. It is the framing of the question which empowersthe High Court to finally decide the appeal in accordance withthe procedure prescribed under sub-section (5). Both therequirements prescribed in sub-sections (4) and (5) are, therefore,mandatory and have to be followed in the manner prescribedGtherein. Indeed, the jurisdiction to decide the second appeal finallyarises only after the substantial question of law is framed undersub-section (4). There may be a case and indeed there are caseswhere even after framing a substantial question of law, the samecan be answered against the appellant. It is, however, done only H

after hearing the respondents under sub-section (5). If, however,the High Court is satisfied after hearing the appellant at the timeof admission that the appeal does not involve any substantialquestion of law, then such appeal is liable to be dismissed in liminewithout any notice to the respondents after recording a finding inthe dismissal order that the appeal does not involve any substantialquestion of law within the meaning of sub-section (4). It isneedless to say that for passing such order in limine, the HighCourt is required to assign the reasons in support of itsconclusion. It is, however, of no significance, whether therespondent has appeared at the time of final hearing of the appealor not. The High Court, in any case, has to proceed in accordancewith the procedure prescribed under Section 100 while disposingof the appeal, whether in limine or at the final hearing stage. [Paras29-31] [1074-B-F]

1.9 It is a settled principle of rule of interpretation thatwhenever a statute requires a particular act to be done in aparticular manner then such act has to be done in that manneronly and in no other manner. The said principle applies to theinstant case because, the High Court failed to follow theprocedure prescribed under Section 100 while allowing the secondappeal and thus committed a jurisdictional error calling forinterference by this Court. [Paras 32-33] [1074-G-H; 1075-A]

1.10 The impugned judgment cannot be sustained as itdoes not conform to the requirements of Section 100 CPC. Theimpugned judgment is set aside. The case is remanded to theHigh Court for deciding the second appeal afresh on merits. Thecase is remanded due to the infirmity noticed in the manner inwhich the second appeal was decided. [Para 36, 37, 38] [1075-D-F]

Baru Ram v. Parsanni (Smt.) AIR 1959 SC 93 :[1959] Suppl. SCR 1403;Santosh Hazari v.Purushottam Tiwari (Deceased) by L.Rs., (2001) 3 SCC179 : [2001] 1 SCR 948 – referred to.Interpretation of Statutes by G.P. Singh, IXth Edn.p 347 – referred to.

AB

C

DE

F

G

H

A

Case Law Reference

[1959] Suppl. SCR 1403 referred toPara 32(2001) 3 SCC 179 referred toPara 34

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 9118-B9119 of 2010.

From the Judgment and Orders dated 13.12.2006 and 22.01.2007of the High Court of Punjab and Haryana at Chandigarh.in Civil RegularSecond Appeal No. 382 of 1992 and in Civil Misc. No. 448-C of 2007 inRegular Second Appeal No. 382 of 1992 respectively.

C

Vibhuti Sushant Gupta, Neeraj Upadhyay, Dr. Kailash Chand, Advsfor the Appellant.

Dhruv Mehta, Sr. Adv, O. P. Bhadani, S. S. Pandey, A. K. Suman,Advs for the Respondents.

The Judgment of the Court was delivered byD

ABHAY MANOHAR SAPRE, J. 1. These appeals are directedagainst the final judgment and order dated 13.12.2006 passed by theHigh Court of Punjab & Haryana at Chandigarh in Civil Regular SecondAppeal No.382 of 1992 whereby the High Court allowed the appealfiled by respondent No.1 herein, set aside the judgment dated 13.11.1986Eof the District Judge, Narnaul in Civil Appeal No.83 of 1984 and reversedthe judgment dated 16.05.1984 of the Trial Court in Civil Suit No. 315 of1981. By order dated 22.01.2007, the High Court also dismissed theapplication (C.M. No.448-C of 2007 in RSA No.382/1992) filed by theappellant herein for recalling the judgment dated 13.12.2006.

F

2. In order to appreciate the short issue involved in the appeals,few relevant facts need mention infra.

3. One Murti Devi (since dead) and her daughter Smt. Bholi Devifiled Civil Suit No.315/81 in the Court of Sub-Judge, IInd Class, Rewariagainst one Siri Bhagwan (respondent No.1 herein). The suit was for aGdeclaration that the decree obtained by Siri Bhagwan against Murti Devion 11.11.1980 in Civil Suit No. 638/1980 in relation to the land measuring37 Kanals 14 Marlas situated at Village Alampur, Tahsil Rewari, DistrictMahendergarh be declared null and void and not binding on the plaintiffsbecause it was obtained by defendant No.1-Siri Bhagwan by playingHfraud and misrepresentation on the plaintiff-Murti Devi by taking advantage of her illiteracy and poverty. The defendant No.1-SiriBhagwan contested the suit.

4. The Trial Court, by judgment/decree dated 16.05.1984 in C.S.No.315 of 1981 dismissed the suit. Felt aggrieved, the plaintiff-MurtiDevi, filed first appeal (C.A. No.83 of 1984) before the District Judge.By Judgment/decree dated 13.11.1986, the first Appellate Court allowedthe appeal, set aside the judgment/decree of the Trial Court and decreedthe plaintiff’s suit.

5. Felt aggrieved, defendant No. 1- Siri Bhagwan filed SecondAppeal under Section 100 of the Code of Civil Procedure, 1908(hereinafter referred to as “the Code”) in the High Court of Punjab &Haryana out of which these appeals arise. During the pendency of thesecond appeal, the appellant herein-Surat Singh purchased the suit landfrom Murti Devi vide registered sale deed dated 30.07.1988 forRs.80,000/-.

6. The appellant-Surat Singh then filed an application under Order1 Rule 10 read with Order 22 Rule 10 of the Code praying therein tobecome a party respondent along with original plaintiff/respondent No.1in the second appeal as a subsequent purchaser of the suit land from theplaintiff/respondent No.1, pending litigation.

7. By order dated 04.01.1989, Surat Singh’s application wasallowed and he was allowed to become a party-respondent in the secondappeal. In the meantime, Murti Devi expired. Since one daughter ofMurti Devi was already on record as plaintiff No.2 and the other daughterwas on record as proforma defendant No. 2, the Lis involved in theappeal continued.

8. By impugned judgment dated 13.12.2006, the Single Judge ofthe High Court allowed the second appeal, set aside the judgment/decreeof the first Appellate Court and restored that of the Trial Court, whichresulted in dismissal of the suit filed by Murti Devi and her daughter.Since the impugned judgment dated 13.12.2006 was passed withouthearing the appellant herein(respondent No.4 in the High Court), he filedan application under Section 151 read with Order 21 Rule 21 of theCode for recalling the judgment dated 13.12.2006. By order dated22.01.2007, the High Court dismissed the application. Aggrieved byboth the judgment/order dated 13.12.2006 and 22.01.2007, the appellanthas filed these appeals by way of special leave in this Court.

A

B

C

D

E

F

G

H

A

B

9. Therefore, the short question, which arises for consideration inthese appeals, is whether the High Court was justified in allowing thesecond appeal filed by defendant No. 1-Siri Bhagwan (respondent No.1herein) and thereby was justified in dismissing the plaintiff’s suit byrestoring the judgment/decree of the Trial Court.

10. Having heard the learned counsel for the parties and on perusalof the record of the case, we are constrained to allow the appeals, setaside the impugned judgment and remand the case to the High Court fordeciding the second appeal afresh on merits in accordance with law.

11. The reasons for remanding the case to the High Court areCmore than one as set out hereinbelow.

12. First, we find that the High Court allowed the second appealfiled by respondent No. 1 herein without hearing respondent No.4 beforeit, i.e., (appellant herein). In other words, the High Court allowed theDsecond appeal after hearing the appellant of second appeal only and notrespondent No.4 of the second appeal, who was absent at the time ofhearing.

13. When respondent No. 4 (appellant herein) filed an applicationunder Section 151 read with Order 41 Rule 21 of the Code praying forEan opportunity of hearing, his application was dismissed by the HighCourt.

14. In our opinion, the High Court erred in deciding the secondappeal much less allowing it without hearing the contesting respondentNo.4 (appellant herein) and also erred in dismissing his application filedFunder Section 151 read with Order 41 Rule 21 of the Code for rehearingof the second appeal.

15. Having regard to the nature of controversy involved in thecase and further in the light of the grounds on which the application forrehearing of the appeal was founded, the High Court should have grantedGone opportunity of hearing to respondent No. 4 for opposing the secondappeal and for that purpose should have restored the second appeal forits re-hearing on merits in accordance with law.

16. Second and more important, this Court cannot countenancethe manner in which the High Court decided the second appeal on merits.H

17. We find that the judgment of the first Appellate Court, whichwas impugned in the second appeal, was delivered on 13.11.1986 whereasthe second appeal was registered in 1992 (S.A. No.382/92) and theimpugned judgment was delivered on 13.12.2006.

18. The High Court as it seems did not frame any substantialquestion of law while admitting the appeal as per sub-section(4) of Section100 though it remained pending for a long time. However, the High Courtproceeded to allow the second appeal and while doing so framed thesubstantial question of law in the concluding para of the impugnedjudgment. It reads as under:

“The substantial question of law would, therefore, bewhether the finding of the learned lower appellate courtterming the transfer on the basis of a consent decree as agift in the absence of any pleadings was perverse or not?The question of law stands answered in the foregoingdiscussion.

In view of this, the appeal is allowed and the judgmentof the learned lower appellate court dated 13.11.1986 isset aside.”

19. In our considered opinion, the manner and the procedureadopted by the High Court while allowing the second appeal are againstthe procedure laid down in Section 100.

20. Section 100 of the Code reads as under:

“100. Second appeal.- (1) Save as otherwise expresslyprovided in the body of this Code or by any other law forthe time being in force, an appeal shall lie to the High Courtfrom every decree passed in appeal by any Courtsubordinate to the High Court, if the High Court is satisfiedthat the case involves a substantial question of law.(2) Anappeal may lie under this section from an appellate decreepassed ex parte.(3) In an appeal under this section, thememorandum of appeal shall precisely state the substantialquestion of law involved in the appeal.(4) Where the HighCourt is satisfied that a substantial question of law isinvolved in any case, it shall formulate that question.(5)The appeal shall be heard on the question so formulated A

B

C

D

E

F

G

H

1072SUPREME COURT REPORTS

Aand the respondent shall, at the hearing of the appeal, beallowed to argue that the case does not involve suchquestion:Provided that nothing in this sub-section shall bedeemed to take away or abridge the power of the court tohear, for reasons to be recorded, the appeal on any othersubstantial question of law formulated by it, if it is satisfiedBthat the case involves such question.”

21. Sub-section (1) of Section 100 says that the second appealwould be entertained by the High Court only if the High Court is “satisfied”that the case involves a “substantial question of law”. Sub- section (3)Cmakes it obligatory upon the appellant to precisely state in memo ofappeal the “substantial question of law” involved in the appeal. Sub-section (4) provides that where the High Court is satisfied that anysubstantial question of law is involved in the case, it shall formulate thatquestion. In other words, once the High Court is satisfied after hearingDthe appellant or his counsel, as the case may be, that the appeal involvesa substantial question of law, it has to formulate that question and thendirect issuance of notice to the respondent of the memo of appeal alongwith the question of law framed by the High Court. Sub-section (5)provides that the appeal shall be heard only on the question formulatedby the High Court under sub-section (4). In other words, the jurisdictionEof the High Court to decide the second appeal is confined only to thequestion framed by the High Court under sub-section(4). The respondent,however, at the time of hearing of the appeal is given a right under sub-section (5) to raise an objection that the question framed by the HighCourt under sub-section (4) does not involve in the appeal. The reasonFfor giving this right to the respondent for raising such objection at thetime of hearing is because the High Court frames the question at theadmission stage which is prior to issuance of the notice of appeal to therespondent. In other words, the question is framed behind the back ofrespondent and, therefore, sub-section(5) enables him to raise such objection at the time of hearing that the question framed does not ariseGin the appeal. The proviso to sub-section (5), however, also recognizesthe power of the High Court to hear the appeal on any other substantialquestion of law which was not initially framed by the High Court undersub-section (4). However, this power can be exercised by the HighCourt only after assigning the reasons for framing such additional questionHof law at the time of hearing of the appeal.

22. Adverting to the facts of this case at hand, we are at a loss tounderstand as to how the High Court while passing a final judgment inits concluding para could frame the substantial question of law for thefirst time and simultaneously answered the said question in appellant’sfavour. Obviously, the learned Judge must have done it by taking recourseto sub-section (4) of Section 100 of the Code.

23. Here is the case where the High Court was under a legalobligation to frame the substantial question at the time of admission ofthe appeal after hearing the appellant or/and his counsel under sub-section(4) of Section 100 of the Code, but the High Court did it while passingthe final judgment in its concluding para.

24. Such novel procedure adopted by the High Court, in ourconsidered opinion, is wholly contrary to the scheme of Section 100 ofthe Code and renders the impugned judgment legally unsustainable.

25. In our considered opinion, the High Court had no jurisdictionto frame the substantial question at the time of writing of its final judgmentin the appeal except to the extent permitted under sub-section (5). Theprocedure adopted by the High Court, apart from it being against thescheme of Section 100 of the Code, also resulted in causing prejudice tothe respondents because the respondents could not object to the framingof substantial question of law. Indeed, the respondents could not cometo know on which question of law, the appeal was admitted for finalhearing.

26. In other words, since the High Court failed to frame anysubstantial question of law under sub-section(4) of Section 100 at thetime of admission of the appeal, the respondents could not come to knowon which question of law, the appeal was admitted for hearing.

27. It cannot be disputed that sub-section (5) gives the respondentsa right to know on which substantial question of law, the appeal wasadmitted for final hearing. Sub-section (5) enables the respondents toraise an objection at the time of final hearing that the question of lawframed at the instance of the appellant does not really arise in the case.

28. Yet, the other reason is that the respondents are only requiredto reply while opposing the second appeal to the question formulated bythe High Court under sub-section (4) and not beyond that. If the questionof law is not framed under sub-section (4) at the time of admission or AB

C

DE

F

G

H

Abefore the final hearing of the appeal, there remains nothing for therespondent to oppose the second appeal at the time of hearing. In thissituation, the High Court will have no jurisdiction to decide such secondappeal finally for want of any substantial question(s) of law.

29. The scheme of Section 100 is that once the High Court isBsatisfied that the appeal involves a substantial question of law, suchquestion shall have to be framed under sub-section(4) of Section 100. Itis the framing of the question which empowers the High Court to finallydecide the appeal in accordance with the procedure prescribed undersub-section (5). Both the requirements prescribed in sub-sections (4)and (5) are, therefore, mandatory and have to be followed in the mannerCprescribed therein. Indeed, as mentioned supra, the jurisdiction to decidethe second appeal finally arises only after the substantial question oflaw is framed under sub-section (4). There may be a case and indeedthere are cases where even after framing a substantial question of law,the same can be answered against the appellant. It is, however, doneDonly after hearing the respondents under sub-section (5).

30. If, however, the High Court is satisfied after hearing theappellant at the time of admission that the appeal does not involve anysubstantial question of law, then such appeal is liable to be dismissed inlimine without any notice to the respondents after recording a finding inEthe dismissal order that the appeal does not involve any substantial questionof law within the meaning of sub-section (4). It is needless to say thatfor passing such order in limine, the High Court is required to assign thereasons in support of its conclusion.

31. It is, however, of no significance, whether the respondent hasFappeared at the time of final hearing of the appeal or not. The HighCourt, in any case, has to proceed in accordance with the procedureprescribed under Section 100 while disposing of the appeal, whether inlimine or at the final hearing stage.

32. It is a settled principle of rule of interpretation that wheneverGa statute requires a particular act to be done in a particular manner thensuch act has to be done in that manner only and in no other manner.(See- Interpretation of Statutes by G.P. Singh, IXth Edition page347 and Baru Ram vs. Parsanni (Smt.), AIR 1959 SC 93).

33. The aforesaid principle applies to the case at hand because,as discussed above, the High Court failed to follow the procedureH

prescribed under Section 100 of the Code while allowing the secondappeal and thus committed a jurisdictional error calling for interferenceby this Court in the impugned judgment.

34. While construing Section 100, this Court in the case of SantoshHazari vs. Purushottam Tiwari (Deceased) by L.Rs., (2001) 3 SCC179 succinctly explained the scope, the jurisdiction and what constitutesa substantial questions of law under Section 100 of the Code.

35. It is, therefore, the duty of the High Court to always keep inmind the law laid down in Santosh Hazari (supra) while formulating thequestion and deciding the second appeal.

36. In the light of the foregoing discussion, we cannot sustain theimpugned judgment which, in our view, does not conform to therequirements of Section 100 of the Code and hence calls for interferencein this appeal.

37. The appeals thus deserve to be allowed. They are accordinglyallowed. The impugned judgment is set aside. The case is remanded tothe High Court for deciding the second appeal afresh on merits. TheHigh Court will now frame proper substantial question(s) of law afterhearing the appellant and if it finds that any substantial question(s) oflaw arises in the case, it will formulate such question(s) and accordinglyhear the appeal on the question(s) framed finally in accordance withlaw.

38. We, however, make it clear that we have not applied our mindto the merits of the controversy involved in the appeals, but only formedan opinion to remand the case due to the infirmity noticed in the mannerin which the second appeal was decided. The High Court will, therefore,decide the second appeal uninfluenced by any of our observations madein this order.

39. Since the matter is quite old, we request the High Court todecide the second appeal expeditiously preferable within six months fromthe date of receipt of this judgment.

Nidhi Jain

Appeals allowed.

A

B

C

DE

F

G

H