Supreme Court of India
RANJIT KUMAR KARMAKAR @ DULAL KARMAKAR versus HARI SHANKAR DAS on 18 April 2019
150
SUPREME COURT REPORTS
[2019] 6 S.C.R.
ARANJIT KUMAR KARMAKAR @ DULAL KARMAKAR
v.
HARI SHANKAR DAS
(Civil Appeal No. 3967 of 2019)
BAPRIL 18, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
Code of Civil Procedure, 1908 – s.100 – Second appeal –CAppellant-plaintiff filed suit for declaration of his right, title andinterest in the suit land, for confirmation of his possession over thesuit land and lastly for permanent injunction – Suit dismissed bythe Trial Court – Aggrieved, plaintiff filed first appeal, which wasallowed – In second appeal, High Court set aside the judgment offirst appellate Court and restored the judgment of the Trial Court –DOn appeal, held: High Court though admitted the defendant’ssecond appeal by framing six substantial questions of law for itshearing but none of the substantial questions were answered –Instead, High Court discussed all other issues, which were not thesubject matter of the six questions framed – s.100(5) CPC providesEthat the second appeal shall be heard only on the substantialquestion(s) of law framed by the High Court u/s.100(4) of theCode – Thus, case remanded to the High Court for deciding secondappeal afresh.
Allowing the appeal, the Court
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HELD: 1. The High Court though admitted the secondappeal by framing six substantial questions of law but did notanswer any of them on merits and instead went into discussionon all other issues, which were not the subject matter of the sixquestions framed and allowed the second appeal as if it wasGdeciding the first appeal. [Para 11][152-H; 153-A]
2. Section 100 (5) of the Code of Civil Procedure, 1908, inexpress terms, provides that the second appeal shall be heardonly on the substantial question(s) of law framed by the HighCourt under Section 100 (4) of the Code. Therefore, the High H
Court has to confine its inquiry to the question(s) framed and notbeyond it. [Para 12][153-A-B]
3. The proviso to sub-section (5) of Section 100 of theCode also enables the respondent to raise a plea at the time ofhearing that the questions framed either do not arise in the caseor the questions framed are not the substantial questions of law.At the same time, the High Court has the jurisdiction to frameany additional question(s) of law but this the High Court can doby assigning the reasons. [Para 13][153-C]
4. Since the High Court failed to answer the six questionseither way on their respective merits and yet proceeded to allowthe second appeal, such order, is not legally sustainable and hasto be set aside. The case is remanded to the High Court fordeciding the second appeal, out of which this appeal arises, afreshon its merits. [Paras 14, 15][153-D-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3967of 2019.
From the Judgment and Order dated 24.09.2014 of the HighCourt of Tripura at Agartala in R.S.A. No. 42 of 2007.
Ms. Malini Poduval, Ms. Babita Sant, Reepak Kansal, PravirChoudhary, Advs. for the Appellant.
Rituraj Biswas, Ms. Sujaya Bardhan, Chandra Prakash, Advs.for the Respondent.
The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J.
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1. Leave granted.
2. This appeal is filed against the final judgment and order dated24.09.2014 passed by the High Court of Tripura at Agartala in R.S.A.No.42 of 2007 whereby the High Court allowed the second appeal filedby the respondent herein, set aside the judgment/decree dated 24.04.2007passed by the Additional District Judge, West Tripura, Agartala in T.A.No.34 of 2006 and restored the judgment/decree dated 05.04.2006 passedby the Civil Judge(Junior Division) No.2, Agartala, West Tripura in T.S.No.103 of 2004.
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A3. A few facts need mention hereinbelow for the disposal of thisappeal, which involves a short point.
4. The appellant is the plaintiff and the respondent is the defendantof the civil suit out of which this appeal arises.
5. The appellant filed a civil suit (T.S.No.103 of 2004) against theBrespondent in the Court of Civil Judge (Junior Division). The suit wasfor declaration of his right, title and interest in the suit land, for confirmationof his possession over the suit land and lastly for permanent injunction.The respondent contested the suit.
6. The Trial Court, by judgment/decree dated 05.04.2006 dismissedCthe suit. The plaintiff (appellant herein) felt aggrieved and filed first appeal(T.A. No.34/2006) before the Additional District Judge, West Tripura,Agartala. By judgment dated 24.04.2007, the First Appellate Courtallowed the appeal and decreed the suit.
7. The defendant (respondent herein) felt aggrieved and filedDsecond appeal in the High Court of Tripura. By impugned order, theHigh Court allowed the appeal and set aside the judgment of the firstAppellate Court and restored the judgment/decree of the Trial Courtwhich has given rise to filing of this appeal by way of special leave toappeal by the plaintiff in this Court.
E8. Heard Ms. Malini Poduval, learned counsel for the appellantand Mr. Rituraj Biswas, learned counsel for the respondent.
9. Having heard the learned counsel for the parties and on perusalof the record of the case, we are constrained to allow the appeal andwhile setting aside the impugned order, remand the case to the HighFCourt for rehearing of the second appeal afresh on merits in accordancewith law.
10. The need to remand the case to the High Court has arisenbecause on perusal of the impugned order, we notice that the High Courtthough admitted the defendant’s second appeal by framing as many asGsix substantial questions of law for its hearing but practically none of thesubstantial questions of law were answered either way by the HighCourt while allowing the second appeal by the impugned order.
11. In other words, though the High Court admitted the secondappeal on six questions but did not answer any of them on merits andHinstead went into discussion on all other issues, which were not the subject matter of the six questions framed and allowed the second appeal as if itwas deciding the first appeal.
12. Section 100 (5) of the Code of Civil Procedure, 1908(hereinafter referred to as “the Code”), in express terms, provides thatthe second appeal shall be heard only on the substantial question(s) oflaw framed by the High Court under Section 100 (4) of the Code.Therefore, the High Court has to confine its inquiry to the question(s)framed and not beyond it.
13. The proviso to sub-section (5) of Section 100 of the Code alsoenables the respondent to raise a plea at the time of hearing that thequestions framed either do not arise in the case or the questions framedare not the substantial questions of law. At the same time, the HighCourt has the jurisdiction to frame any additional question(s) of law butthis the High Court can do by assigning the reasons.
14. Since the High Court failed to answer the six questions (setout in Para 2 of impugned order) either way on their respective meritsand yet proceeded to allow the second appeal, such order, in our view, isnot legally sustainable and has to be set aside.
15. In view of the foregoing discussion, the appeal succeeds andis accordingly allowed. The impugned order is set aside. The case isremanded to the High Court for deciding the second appeal, out of whichthis appeal arises, afresh on its merits in accordance with law uninfluencedby any observations made in the impugned order and in this order becausehaving formed an opinion to remand the case, we have not expressedany opinion on the merits of the controversy.
Ankit Gyan
Appeal allowed.
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