CHAND KAUR (D) THR. LRS. versus MEHAR KAUR (D) THR. LRS. on 28 March 2019

[2019] 5 S.C.R.

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CHAND KAUR (D) THR. LRS.

v.

MEHAR KAUR (D) THR. LRS.

(Civil Appeal Nos. 3276-3281 of 2019)

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MARCH 28, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Code of Civil Procedure, 1908 – s.100 – Second appeals weredisposed of by the High Court without framing any substantialCquestion(s) of law – Held: Framing of substantial questions of lawin instant appeals was mandatory because the High Court allowedthe second appeals and interfered in the judgment of the FirstAppellate Court, which was impugned in the second appeals – Thesine qua non for allowing the second appeal is to first frame theDsubstantial question(s) of law arising in the case and then decidethe second appeal by answering the question(s) framed – Thus,case remanded to High Court to first frame substantial question(s),which, according to the appellants of the second appeals, arise intheir respective second appeals.

EAllowing the appeals, the Court

HELD: 1. This Court has consistently held that the HighCourt has no jurisdiction to allow the second appeal withoutframing a substantial question of law as provided under Section100 of the Code. In other words, the sine qua non for allowingFthe second appeal is to first frame the substantial question(s) oflaw arising in the case and then decide the second appeal byanswering the question(s) framed. [Para 6][888-G-H; 889-A]

2. Since in this case, the High Court failed to frame anysubstantial question either at the time of admitting the appeal orGbefore final hearing and yet proceeded to allow some of the secondappeals in the bunch by modifying the judgment impugned therein,the High Court committed jurisdictional error requiring this Courtto interfere. Thus, cases remanded to the High Court, which willaccordingly decide the appeals on merits strictly in accordancewith law. [Para 7][889-C-E]H

Surat Singh(Dead) v. Siri Bhagwan & Ors. (2018) 4SCC 562 : [2018] 1 SCR 1063; Vijay Arjun Bhagat &Ors. v. Nana Laxman Tapkire & Ors. (2018) 6 SCC72 7 : [ 2018] 4 SCR 452 – referred to.

Case Law Reference[2018] 1 SCR 1063 referred toPara 6[2018] 4 SCR 452 referred toPara 6

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CIVIL APPELLATE JURISDICTION:Civil Appeal Nos. 3276-3281 of 2019

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From the Judgment and Order dated 23.03.2011 of the High Courtof Punjab and Haryana at Chandigarh in R.S.A. Nos. 2066, 2067, 2068,2292, 2293 & 2294 of 1987

P. P. Nayak, Ms. Vandana Hooda, Ms. Bhupinder, Ajay Pal,,DAdvs. for the Appellants.

Ms. Shruti Bisht, Ms. S. Janani, Advs. for the Respondents.

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

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2. These appeals are directed against the final judgment and orderdated 23.03.2011 passed by the High Court of Punjab & Haryana atChandigarh in RSA Nos. 2066, 2067, 2068, 2292 and 2294 of 1987.

3. It is not necessary to set out the facts in detail for the disposalof these appeals for the reason that having heard the learned counsel forthe parties and on perusal of the record of the case, we have formed anopinion to remand the case to the High Court for deciding the secondappeals, out of which these appeals arise, for their fresh disposal onmerits in accordance with law.

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4. The need to remand these cases to the High Court is called forbecause we find that the High Court though disposed of bunch of secondappeals (RSA Nos.2066 to 2068 of 1987 and RSA 2292 to 2294 of 1987)but it did so without framing any substantial question(s) of law as isrequired to be framed under Section 100 of the Code of Civil Procedure,1908 (hereinafter referred to as “the Code”).

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5. In our opinion, framing of substantial question(s) of law in thepresent appeals was mandatory because the High Court allowed thesecond appeals and interfered in the judgment of the First AppellateCourt, which was impugned in the second appeals. It is clear from thelast paragraph of the impugned order quoted hereinbelow:

“However, I am unable to convince myself with thelatter part of the judgment of the ld. lower appellate courtwherein Chand Kaur was held to be entitled to ½ share ofthe property of Jaimal, by placing reliance on the judgmentdelivered in the previous litigation between Mehar Singhand Chand Kaur. Once the ld. lower Appellate Court arrivedat a specific finding of fact that Chand Kaur was neither thedaughter of Santo nor Santo is daughter of Cheta, thus,there was no basis for it to hold that Chand Kaur was entitledto hold half of the property of late Jaimal. By placingreliance on the previous judgment, the ld. Lower AppellateCourt went against its own judgment and impliedly admittedthat Santo was the daughter of Cheta. It is obvious thatsuch a status of things cannot co-exist. By necessaryimplication, as a result of the finding arrived at by the ld.Lower Appellate Court regarding Santo not being thedaughter of Cheta, the entitlement of the property of lateJaimal falls on Mehar Singh and Mehar Kaur in equalshares.

In view of above, RSA Nos.2066, 2067 and 2068 of1987 filed by Mehar Kaur succeed and RSA Nos.2292, 2293and 2294 of 1987 filed by Chand Kaur are dismissed. Thefindings of the ld. lower Appellate Court are modified tothe extent that Mehar Singh and legal heirs of Mehar Kaurare held entitled to succeed to the entire property of lateJaimal Singh in equal shares and the legal heirs of ChandKaur shall have no right to such property at all.”

6. This Court has consistently held that the High Court has nojurisdiction to allow the second appeal without framing a substantialquestion of law as provided under Section 100 of the Code. In otherwords, the sine qua non for allowing the second appeal is to first framethe substantial question(s) of law arising in the case and then decide the second appeal by answering the question(s) framed.(See SuratSingh(Dead) vs. Siri Bhagwan & Ors., (2018) 4 SCC 562 and VijayArjun Bhagat & Ors. vs. Nana Laxman Tapkire & Ors., (2018) 6SCC 727).

7. Since in this case, we find that the High Court failed to frameany substantial question either at the time of admitting the appeal orbefore final hearing and yet proceeded to allow some of the secondappeals in the bunch by modifying the judgment impugned therein, theHigh Court committed jurisdictional error requiring this Court to interfere.

8. In view of the foregoing discussion, the appeals succeed andare accordingly allowed. The impugned order is set aside. All the secondappeals, out of which these appeals arise, are restored to their originalnumbers before the High Court.

9. The High Court will now first frame substantial question(s)which, according to the appellants of the second appeals, arise in theirrespective second appeals.

10. Since we have formed an opinion to remand the case in thelight of what is held above, we have not expressed any opinion on themerits of the controversy.

11. The High Court will accordingly decide the appeals on meritsstrictly in accordance with law uninfluenced by any observations madein the impugned order and also in this order.

Ankit Gyan

Appeals allowed.

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