STATE OF RAJASTHAN & ORS. versus GRAM VIKAS SAMITI, SHIVDASPURA on 7 January 2019

Issues

STATE OF RAJASTHAN & ORS.

v.

GRAM VIKAS SAMITI, SHIVDASPURA

(Civil Appeal No. 3505 of 2009)

JANUARY 07, 2019

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Code of Civil Procedure, 1908 – s.100 – Substantial questionof law – Suit filed by respondent-society against the State and itsauthorities seeking permanent injunction against appellantsrestraining them from interfering in the respondent’s possession overthe suit land – Trial court decreed the suit – State’s appeal dismissed– High Court also dismissed State’s appeal on the ground that theappeal did not involve any substantial question of law – On appeal,held: High Court did not assign any reasons while dismissing theappeal nor discussed the case on facts or law – Even the cursoryreading of the judgments of the trial court and the first appellatecourt showed that the second appeal did involve substantial questionof law – Therefore, the second appeal should have been admittedfor final hearing by framing proper substantial question of lawarising in the case under s.100 for its final disposal – Matterremitted to High Court for consideration afresh.

Allowing the appeal and remitting the matter to High Court,the Court HELD: The High Court did not discuss nor dealt with anyissues arising in the case nor dealt with any submissions urgedby the appellant with a view to show as to how and on what basisthe findings impugned in the second appeal were bad in law andwhy the appeal did not involve any substantial question(s) of law.This Court cannot countenance such casual approach of the HighCourt in disposing of the second appeal, which does not decidenor deals with any issue(s) arising in the case. The disputeinvolved in the second appeal related to the State land and itstitle and possession. It should have been adjudicated in the lightof legal principle applicable to the case, pleadings and evidence.[Paras 9, 10 and 12][61-E-F; 62-A-B]

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 3505of 2009.

From the Judgment and Order dated 20.04.2007 of the HighCourt of Judicature for Rajasthan at Jaipur Bench, Jaipur in S.B . CivilRegular Second Appeal No. 186 of 2007.

B

Ajay Choudhary, Adv. for the Appellants.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal is directedagainst the final judgment and order dated 20.04.2007 passed by theCHigh Court of Judicature for Rajasthan, Bench at Jaipur in S.B. CivilRegular Second Appeal No.186 of 2007 whereby the Single Judge ofthe High Court dismissed the second appeal filed by the appellants hereinand affirmed the order dated 15.07.2006 passed by the first AppellateCourt in Regular Civil Appeal No. 37 of 2003.

D2. Few facts need mention infra for disposal of this appeal.

3. The State and its authorities are the appellants herein. Theyare the defendants whereas the respondent is the plaintiff in a civil suitout of which this appeal arises.

4. The respondent claiming to be the Society filed a civil suit againstEthe State and its authorities in relation to the suit land. The suit was forgrant of relief of permanent injunction restraining the appellants(defendants) from interfering in the respondent’s (plaintiff’s) possessionover the suit land. It was contested by the appellants (defendants).

5. The Trial Court by judgment/decree dated 26.09.2002 in CivilFSuit No.38 of 2000 decreed the suit and granted permanent injunction tothe respondent (plaintiff) and against the appellants (defendants) in relationto the suit land. The defendants (State) felt aggrieved and filed firstappeal before the Additional District Judge, Jaipur being Regular CivilAppeal No. 37 of 2003. By Judgment dated 15.07.2006, the first AppellateCourt dismissed the State’s appeal and affirmed the judgment and decreeGof the Trial Court giving rise to filing of the Second appeal by the Statebefore the High Court.

6. By impugned order, the High Court dismissed the State’s appealin limine holding that the appeal does not involve any substantial questionof law and hence this appeal by special leave by the State in this CourtHagainst the impugned order.

STATE OF RAJASTHAN v. GRAM VIKAS SAMITI,SHIVDASPURA [ABHAY MANOHAR SAPRE, J.]

7. None appeared for the parties. We, therefore, perused therecord of the case. Having perused the record, we are of the view thatthis appeal has to be allowed and the case deserves to be remanded tothe High Court for deciding the State’s second appeal afresh on meritsin accordance with law.

8. The need to remand the case to the High Court for deciding thesecond appeal afresh on merits has occasioned because we find that theHigh Court did not assign any reasons while dismissing the appeal andnor discussed the case on facts or in law. This is clear from the impugnedorder, which is reproduced below:

“I have heard learned counsel for the appellant-defendantsand have also gone through the impugned judgments ofthe two courts below.

I find that the courts below have arrived at the finding afterdue appreciation of the evidence led by the parties. Thereis no infirmity in the finding of the courts below. Therefore,there is no substantial question of law involved in this secondappeal.

Hence, this second appeal is dismissed in limine.”

9. In our considered opinion and as would be clear from the mereperusal of the order quoted above, the High Court did not discuss nordealt with any issues arising in the case nor dealt with any submissionsurged by the appellant (State) with a view to show as to how and onwhat basis the findings impugned in the second appeal were bad in lawand why the appeal did not involve any substantial question(s) of law.

10. This Court cannot countenance such casual approach of theHigh Court in disposing of the second appeal, which does not decide nordeals with any issue(s) arising in the case.

11. In our view, even the cursory reading of the judgments of theTrial Court and the First Appellate Court would show that the secondappeal does involve substantial question(s) of law and, therefore, thesecond appeal should have been admitted for final hearing by framingproper substantial question(s) of law arising in the case under Section100 of the Code of Civil Procedure, 1908 (hereinafter referred to as“the Code”) for its final disposal.

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A12. As is clear from the record of the case, the dispute involved inthe second appeal relates to the State land. The question relating to thetitle and possession over the land in question is involved. The HighCourt with a view to find out as to who is the owner of the land and whois in its possession, whether the plaintiff as claimed was able to provetheir title over the suit land to the exclusion of the rights of the State and,Bif so, on what basis and whether his possession if proved, is legal or not,etc. requires elaborate discussion. It should have been adjudicated inthe light of legal principle applicable to the case, pleadings and evidence.

13. It is for these reasons, we are of the view that the case needsto be remanded to the High Court for deciding of the Second AppealCafresh on all such questions which do arise in the case but were notdecided much less in accordance with law.

14. In view of the foregoing discussion, the appeal succeeds andis accordingly allowed. Impugned order is set aside. The case is remandedto the High Court for deciding Second Appeal No. 186/2007 afresh onDmerits.

15. The High Court will admit the second appeal by framing propersubstantial question(s) of law arising in the case as required under Section100 of the Code and then after issuing notice of the appeal alongwith acopy of substantial question of law framed to the respondent (plaintiff)Ewill decide the second appeal on merits by answering the questionsframed in accordance with law.

16. We, however, make it clear that we have not applied our mindto the merits of the controversy having formed an opinion to remand thecase to the High Court. The High Court will, therefore, decide the secondFappeal uninfluenced by any of our observations.

17. Since the appeal is quite old, we request the High Court todecide the appeal as expeditiously as possible.

18. Since no one appeared for any of the parties in this appeal, werequest the High Court to issue notice to the parties for their appearanceGin the Second appeal so as to enable the High Court to dispose of theappeal finally as directed above.

Devika Gujral

H