VIJAY ARJUN BHAGAT & ORS. versus NANA LAXMAN TAPKIRE & ORS. on 11 May 2018

SUPREME COURT REPORTS [2018] 4 S.C.R. 452

[2018] 4 S.C.R.

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VIJAY ARJUN BHAGAT & ORS.

v.

NANA LAXMAN TAPKIRE & ORS.

(Civil Appeal No. 6272 of 2010)

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MAY 11, 2018

[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]

Code of Civil Procedure, 1908 – s.100 – Substantial questionof law – High Court instead of deciding the second appeal on thesix substantial questions of law which were framed at the time ofCadmission, allowed the appeal on two additional substantialquestions of law which were neither framed by the High Court atthe time of admission of the second appeal nor at the time of hearingthe second appeal – Manner in which the High Court proceeded todecide the second appeal is in conformity with the mandatoryDprocedure prescribed under s.100 of the Code – Matter remitted toHigh Court for consideration afresh.

Allowing the appeal and remitting the case to the HighCourt, the Court HELD: 1. The need to remand the case to the High CourtEhas occasioned because the High Court while deciding andeventually allowing the second appeal did not follow the mandatoryprocedure prescribed under Section 100 of the Code of CivilProcedure, 1908. Sub-section (1) of Section 100 says that thesecond appeal would be entertained by the High Court only if theFHigh Court is “satisfied” that the case involves a “substantialquestion of law”. Sub- section (3) makes it obligatory upon theappellant to precisely state in memo of appeal the “substantialquestion of law” involved in the appeal. Sub-section (4) providesthat where the High Court is satisfied that any substantial questionof law is involved in the case, it shall formulate that question. InGother words, once the High Court is satisfied after hearing theappellant or his counsel, as the case may be, that the appealinvolves a substantial question of law, it has to formulate thatquestion and then direct issuance of notice to the respondent ofthe memo of appeal along with the question of law framed by the H

High Court. Sub-section (5) provides that the appeal shall beheard only on the question formulated by the High Court undersub-section (4). In other words, the jurisdiction of the High Courtto decide the second appeal is confined only to the questionframed by the High Court under sub-section(4). The respondent,however, at the time of hearing of the appeal is given a rightunder sub-section (5) to raise an objection that the questionframed by the High Court under sub-section (4) does not involvein the appeal. The reason for giving this right to the respondentfor raising such objection at the time of hearing is because theHigh Court frames the question at the admission stage which isprior to issuance of the notice of appeal to the respondent. Inother words, the question is framed behind the back of therespondent and, therefore, sub-section(5) enables him to raisesuch objection at the time of hearing that the question frameddoes not arise in the appeal. The proviso to sub-section (5),however, also recognizes the power of the High Court to hearthe appeal on any other substantial question of law which was notinitially framed by the High Court under sub-section (4). However,this power can be exercised by the High Court only after assigningthe reasons for framing such additional question of law at thetime of hearing of the appeal. [Paras 12, 15][456-D-E; 457-D-H;458-A-B]

2. The High Court committed two jurisdictional errors whiledeciding the second appeal. First, it erred in not answering thesix substantial questions of law framed at the time of admissionof the appeal. The High Court had the jurisdiction to decide thesecond appeal only on the six substantial questions of law framedat the time of admitting the appeal. Second, the High Courtthough had the jurisdiction to frame additional question(s) bytaking recourse to proviso to sub-section(5) of Section 100 ofthe Code but it was subject to fulfilling the three conditions, first“such questions should arise in the appeal”, second, “assign thereasons for framing the additional questions” and third, “framethe questions at the time of hearing the appeal”. This procedureadopted by the High Court while deciding the second appealcaused prejudice to the rights of the parties because the parties,especially the appellants, who suffered the adverse order, had noknowledge about framing of the two additional questions inasmuch A

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Aas they were deprived of the opportunity to address the Court onthe two additional questions on which the impugned judgmentwas founded. [Paras 20-25][459-B-F]

Surat Singh (Dead) v. Siri Bhagwan & Ors. 2018 (3)SCALE 246 – relied on.

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Case Law Reference

2018 (3) SCALE 246

relied onPara 15

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6272of 2010.C

From the Judgment and Order dated 19.07.2007 of the High Courtof Judicature at Bombay, Bench at Aurangabad in Second AppealNo. 274 of 2002.

B. H. Marlapalle, Sr. Adv., Sanjay Kharde, Samrat Shinde,DChandan Ramamurthi, Pravin Satale, Rajiv Shankar Dvivedi, Advs. forthe Appellants.

Ms. Asha Gopalan Nair, Sunil Kumar Verma, Ravindra KeshavraoAdsure, Atul Babasaheb Dakh, Dr. Kailash Chand, Advs. for theRespondents.

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The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal is directedagainst the final judgment and order dated 19.07.2007 passed by theHigh Court of Judicature at Bombay, Bench at Aurangabad in SecondFAppeal No.274 of 2002 whereby the Single Judge of the High Courtallowed the appeal filed by respondent Nos.1 & 2 herein and set asidethe judgment/order dated 16.01.2002 passed by the District Judge,Ahmednagar in R.C.A. No.21 of 2000 and confirmed the judgment dated10.12.1999 passed by the Civil Judge, Junior Division, Ahmednagar inR.C.S. No.600 of 1982.G

2. In order to appreciate the issues involved in the appeal, fewrelevant facts need to be mentioned hereinbelow.

3. The appellants are the plaintiffs whereas the respondents arethe defendants in a civil suit out of which this appeal arises.

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4. The appellants filed a civil suit (R.C.S. No. 600/1982) againstthe respondents in the Court of Civil Judge, Junior Division, Ahmednagarfor declaration that, (1) the suit properties described in detail in theschedule are ancestral properties of the plaintiffs (2) the plaintiffs arethe owners of the suit properties, and (3) the suit property described inschedule 1(A) is not a Trust property and be declared as the plaintiffs’private property.

5. Defendant No. 1 filed its written statement whereas defendantNos. 3 and 4 filed their joint written statement. The defendants raisedseveral objections about maintainability of the suit. They also deniedplaintiffs’ claim on merits.

6. The Trial Court framed issues. Parties adduced evidence insupport of their case. By judgment and decree dated 10.12.1999, theTrial Judge though answered some issues in plaintiffs’ favour buteventually dismissed the plaintiffs’ suit on merits.

7. The plaintiffs felt aggrieved and filed First Appeal (R.C.A.No.21/2000) in the Court of District Judge, Ahmednagar. By order dated16.01.2002, the first Appellate Court allowed the appeal, set aside thejudgment and decree of the Trial Court and decreed the plaintiffs’ suit.

8. Against the said judgment, Defendant Nos. 3 & 4 (respondentNos. 1 & 2 herein) filed appeal being Second Appeal No. 274/2002 inthe High Court of Bombay (Bench at Aurangabad). The High Court on30.11.2002 admitted the second appeal on the following substantialquestions of law:

“(A) Whether the first appellate court has misread thedocument of partition deed(Exh.81) and therefore thefinding in this behalf suffers from perversity.

(B) Whether the first appellate Court has failed to considerthe appropriate provisions of Order VII Rule 3 of C.P.C.

(C) Whether the first appellate Court has erroneously reliedupon Xerox copies of the mortgage deed which is notregistered.

(D) Whether the first appellate Court has erroneously thatthe suit properties are the private properties of originalplaintiffs.

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A(E) Whether the Civil Court has jurisdiction to decide thenature of the property which issue required to be dealt withby the Charity Commissioner.

(F) Whether the suit is barred by limitation.”

9. By impugned judgment, the Single Judge of the High CourtBallowed the appeal and, in consequence, set aside the order passed bythe District Judge in R.C.A. No.21 of 2000 and confirmed the judgmentpassed by the Civil Judge in R.C.S. No.600 of 1982 which has givenrise to filing of the present appeal by way of special leave by the plaintiffsbefore this Court.

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10. The short question, which arises for consideration in this appeal,is whether the High Court was justified in allowing the appeal.

11. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal, set asidethe impugned judgment and remand the case to the High Court for decidingDthe appeal afresh on merits in accordance with law.

12. In our considered view, the need to remand the case to theHigh Court has occasioned because the High Court while deciding andeventually allowing the second appeal did not follow the mandatoryprocedure prescribed under Section 100 of the Code of Civil Procedure,E1908 (hereinafter referred to as “the Code”).

13. In other words, we find that the manner in which the HighCourt proceeded to decide the second appeal did not appear to be inconformity with the mandatory procedure prescribed under Section 100of the Code. It is clear from our reasoning given infra.

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14. 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 CourtGsubordinate to the High Court, if the High Court is satisfiedthat the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellatedecree passed ex parte.

(3) In an appeal under this section, the memorandum ofappeal shall precisely state the substantial question of lawinvolved in the appeal.

(4) Where the High Court is satisfied that a substantialquestion of law is involved in any case, it shall formulatethat question.

(5) The appeal shall be heard on the question so formulatedand 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 be deemedto take away or abridge the power of the court to hear, forreasons to be recorded, the appeal on any other substantialquestion of law, not formulated by it, if it is satisfied thatthe case involves such question.”

15. 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)makes 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 hearingthe 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 jurisdictionof 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 reasonfor giving this right to the respondent for raising such objection at thetime of hearing is because the High Court frames the question at the

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Aadmission stage which is prior to issuance of the notice of appeal to therespondent. In other words, the question is framed behind the back ofthe respondent and, therefore, sub-section(5) enables him to raise suchobjection at the time of hearing that the question framed does not arisein the appeal. The proviso to sub-section (5), however, also recognizesthe power of the High Court to hear the appeal on any other substantialBquestion 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 questionof law at the time of hearing of the appeal (See C.A. Nos.9118-9119of 2010 titled Surat Singh (Dead) vs. Siri Bhagwan & Ors. decidedCon 19.02.2018).

16. Adverting to the facts of the case at hand, we find that theHigh Court on 30.11.2002 admitted the second appeal and framed sixsubstantial questions of law quoted supra as required under sub-sections(1) and (4) of Section 100 of the Code which, according to the HighDCourt, arose in the second appeal.

17. The High Court was, therefore, required to decide the secondappeal only on the six formulated substantial questions of law as providedunder sub-section (5) of Section 100 of the Code.

18. We, however, find that the High Court instead of deciding theEsecond appeal on these six substantial questions of law framed at thetime of admission allowed the appeal on two additional substantialquestions of law (see Para 10 of the impugned judgment) which wereneither framed by the High Court at the time of admission of the secondappeal on 30.11.2002 and nor at the time of hearing the second appeal.F19. In other words, the High Court allowed the appeal on the twoquestions, which were framed in the impugned judgment only. Thesetwo questions read as under:

“In S.A. No.274/2002, following substantial questions of lawarise:

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“In S.A. No.274/2002, following substantial questions of lawarise:

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(i) Whether the Civil Court has jurisdiction to decide thequestion whether a particular property is that of a PublicTrust or that it is not a property of the Public Trust andbelongs to individual claimant?

VIJAY ARJUN BHAGAT & ORS. v. NANA LAXMAN TAPKIRE& ORS. [ABHAY MANOHAR SAPRE, J.]

(ii) Whether the suit for declaration that the propertieswere not of the Public Trust was barred by limitation and,therefore, the impugned judgment of the first appellateCourt deserves interference?”

20. In our considered opinion, the High Court, therefore, committedtwo jurisdictional errors while deciding the second appeal.

21. First, though it rightly framed six substantial questions of lawat the time of admission of the appeal on 30.11.2002 as arising in thecase but erred in not answering these questions.

22. As mentioned above, the High Court had the jurisdiction todecide the second appeal only on the six substantial questions of lawframed at the time of admitting the appeal. In other words, the jurisdictionof the High Court to decide the second appeal was confined only to sixquestions framed and not beyond it.

23. Second, the High Court though had the jurisdiction to frameadditional question(s) by taking recourse to proviso to sub-section(5) ofSection 100 of the Code but it was subject to fulfilling the three conditions,first “such questions should arise in the appeal”, second, “assign thereasons for framing the additional questions” and third, “frame thequestions at the time of hearing the appeal”.

24. In this case, the High Court committed an error because itframed two additional questions in the judgment itself.

25. This procedure adopted by the High Court while deciding thesecond appeal caused prejudice to the rights of the parties because theparties, especially the appellants herein, who suffered the adverse order,had no knowledge about framing of the two additional questions inasmuchas they were deprived of the opportunity to address the Court on thetwo additional questions on which the impugned judgment was founded.

26. Learned counsel for the respondents, however, made sincereefforts to persuade the Court to uphold the impugned judgment on meritsbut in the light of what we have held above, it is not possible to acceptthe submissions of the learned counsel for the respondents much lessthe submissions urged on the merits of the controversy.

27. We, however, make it clear that having formed an opinion toremand the case, we have refrained from applying our mind to the meritsof the case. It is now for the High Court to decide the appeal on merits.

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460SUPREME COURT REPORTS

A28. In the light of the foregoing discussion, the appeal succeedsand is allowed. The impugned judgment is set aside. The case is remandedto the High Court for deciding the appeal afresh on merits in accordancewith law without being influenced by any of our observations.

29. Since the appeal is quite old, the same shall be decidedBexpeditiously.

Devika Gujral

Appeal allowed.

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