1999 JTR(SC) 186
1999 AIR(SCW) 4756 ; 2000 38 AllLR 283 ; 1999 4 CivLJ 644 ; 1999 10 JT 45 ; 1999 2 OLR 552 ; 2000 3 RLW(Raj) 404 ; 1999 6 SCC 35 ; 1999 KHC 1255 ; 1999 10 Supreme 245
1999(10) Supreme 245
SUPREME COURT OF INDIA
S.P Kurdukar and S.N. Phukan, JJ.
Kanai Lal Garari & Ors. -Appellants
versus
Murari Ganguly & Ors. -Respondents
Civil Appeal No. 6006 of 1994
Decided on 11-2-1999
IMPORTANT POINT
In second appeal u/s 100 of CPC, the High Court is required to frame a substantial question of law at the begining of the hearing itself and/or if such a substantial question of law or questions of law are already raised in the memorandum of appeal then it is obligatory upon the High Court to hear the learned counsel for the parties on such substantial question of law or question of law.
Act Referred :CIVIL PROCEDURE CODE : S.100
(A) The appeal pertains to the interpretation and enforcement of Section 100 of the Civil Procedure Code, read with Order 41 Rule 23, in the context of a second appeal challenging a High Court judgment that set aside decrees of lower courts in a title suit for possession. The statute mandates that a High Court exercising appellate jurisdiction under Section 100 must formulate a substantial question of law at the outset of the hearing if one is raised on the record or apparent from the memorandum of appeal, and hear counsel on that question before disposing of the appeal. The impugned order is being scrutinized for compliance with this mandatory procedural requirement governing the formulation and hearing of substantial questions of law before remand.
(B) The core legal principles are that an appellate court must strictly adhere to the procedural mandate of Section 100 CPC by recording the formulation of a substantial question of law and hearing parties on it; failure to do so renders the order unsustainable; and the power to remand a matter for a fresh trial is discretionary and must be exercised in conjunction with the clear articulation of the legal question involved.
Facts of the case:
The plaintiffs filed a suit for title-based possession of property claiming purchase through a registered sale deed, while the defendant relied on a lease dated 20.5.1968. The trial court decreed the suit in favor of the plaintiffs. The first appeal was dismissed, and the second appeal to the High Court resulted in the impugned judgment setting aside the lower courts decrees and remanding the matter for disposal in accordance with its directions.
Findings of Court:
The Supreme Court found that the High Court did not formulate a substantial question of law at the beginning of the hearing or after examining the memorandum of appeal, and did not expressly hear the parties on such a question as required by Section 100 CPC, rendering its approach contrary to the mandatory provisions of the Code.
Issues:
Whether the High Court validly exercised its powers under Section 100 CPC by remanding the matter without formulating and deciding a substantial question of law, and whether the impugned judgment is sustainable in law.
Ratio Decidendi:
Since the High Court failed to formulate and hear a substantial question of law as mandated by Section 100 CPC, its order is unsustainable and must be set aside, regardless of the merits of the factual dispute, and the matter should be remanded for disposal in compliance with the statutory procedure.
Result:
The appeal is allowed, the impugned judgment dated 30.5.1989 is set aside, and the matter is remanded to the High Court for disposal as directed, with no order as to costs.
(A) The appeal pertains to the interpretation and enforcement of Section 100 of the Civil Procedure Code, read with Order 41 Rule 23, in the context of a second appeal challenging a High Court judgment that set aside decrees of lower courts in a title suit for possession. The statute mandates that a High Court exercising appellate jurisdiction under Section 100 must formulate a substantial question of law at the outset of the hearing if one is raised on the record or apparent from the memorandum of appeal, and hear counsel on that question before disposing of the appeal. The impugned order is being scrutinized for compliance with this mandatory procedural requirement governing the formulation and hearing of substantial questions of law before remand.
(B) The core legal principles are that an appellate court must strictly adhere to the procedural mandate of Section 100 CPC by recording the formulation of a substantial question of law and hearing parties on it; failure to do so renders the order unsustainable; and the power to remand a matter for a fresh trial is discretionary and must be exercised in conjunction with the clear articulation of the legal question involved.
Facts of the case:
The plaintiffs filed a suit for title-based possession of property claiming purchase through a registered sale deed, while the defendant relied on a lease dated 20.5.1968. The trial court decreed the suit in favor of the plaintiffs. The first appeal was dismissed, and the second appeal to the High Court resulted in the impugned judgment setting aside the lower courts decrees and remanding the matter for disposal in accordance with its directions.
Findings of Court:
The Supreme Court found that the High Court did not formulate a substantial question of law at the beginning of the hearing or after examining the memorandum of appeal, and did not expressly hear the parties on such a question as required by Section 100 CPC, rendering its approach contrary to the mandatory provisions of the Code.
Issues:
Whether the High Court validly exercised its powers under Section 100 CPC by remanding the matter without formulating and deciding a substantial question of law, and whether the impugned judgment is sustainable in law.
Ratio Decidendi:
Since the High Court failed to formulate and hear a substantial question of law as mandated by Section 100 CPC, its order is unsustainable and must be set aside, regardless of the merits of the factual dispute, and the matter should be remanded for disposal in compliance with the statutory procedure.
Result:
The appeal is allowed, the impugned judgment dated 30.5.1989 is set aside, and the matter is remanded to the High Court for disposal as directed, with no order as to costs.
ORDER
1. This appeal is filed by the appellant-plaintiffs challenging the legality and correctness of the judgment and decre dated 30-5-1989 passed by the High Court.
2. The plaintiffs filed a suit based on title for possession of a suit property which they claimed to have purchased under the registered sale deed dated 10-6-1974 from some of the heirs of the original owner Shri Jugal Kishore. The defendant had set up a lease dated 20.5.1968 (Exhibit 5) from Jugal Kishore and according to them they have been in possession pursuant to the said lease and the plaintiffs cannot ask for possession from the lessees. Parties went to trial Court decreed the suit. The appeal preferred by the respondent-defendants was dismissed. The respondent-defendants thereafter preferred second appeal to the High Court and the High Court by its judgment and decree dated 30.5.1989 set aside the judgment of the courts below and remanded the matter to the trial Court for disposal in accordance with the directions contained in its judgment. It is this judgment of the High Court which is the subject-matter of the challenge in this appeal which is filed after obtaining leave. Mr. Tapas Ray, learned Senior Advocate appearing for the appellants (plaintiffs) urged that the High Court was totally wrong in setting aside the judgment of the courts below and remanding the matter of the trial Court. He urged that it was mandatory for the High Court to formulate a substantial question of law as required under Section 100 CPC and without formulating such a question of law or questions of law the High Court could not have remanded the matter for wholesome trial. He strongly relied upon the decision of this Court in Panchugopal Barua v. Umesh Chandra Goswami1 . He, therefore, contended that the impugned judgment is unsustainable and in the facts and circumtances of the case the matter be remanded to the High Court for disposal in accordance with law bearing in mind the requirements prescribed under Section 100 CPC. Mr Banerjee, learned counsel appearing for the respondents sought to support the impugned judgment on the premise that although the High Court had not formulated substantial question of law but from the discussion appearing in the judgment of the High Court it is quite clear that certain important and subtantial questions of law were raised which were not either discussed or considered by the trial Court as well as the first appellate court. Mr. Banerjee, therefore, submitted that the High Court was fully justified in remanding the matter in exercise of its discretionary powers under Order 41 Rule 23 of the Civil Procedure Code.
3. We have gone through the judgment of the High Court as well as the trial Court and the lower appellate court and we find that the High Court while exercising its jurisdiction under Section 100 CPC has not formulated a substantial question of law. A plain reading of Section 100 CPC would make it clear that the High Court is required to frame a substantial question of law at the begining of the hearing itself and/or if such a substantial question of law or questions of law are already raised in the memorandum of appeal then it is obligatory upon the High Court to hear the learned counsel for the parties on such substantial question of law or question of law. The judgment of the High Court does not disclose that any such substantial question of law or questions of law were raised at the initial stage and the learned advocates for the parties were heard accordingly. The approach of the High Court in our opinion is contrary to the mandatory provisions of Section 100 CPC. On this short ground we are of the opinion that the judgment of the High Court is unsustainable and has got to be set aside and accordingly we do so. Mere quashing of the judgment would not solve the problem because ultimately the High Court will have to consider as to whether any substantial question of law or questions of law are raised in the memorandum of appeal and if such a question of law or questions of law would arise on the basis of pleadings of the parties and material on record. The High Court would formulate the substantial question of law or questions of law if they arise as indicated above and then will hear the parties and dispose of the same in accordance with law. As this litigation is pending since 1974 we request the High Court to dispose of the second appeal as expeditiously as possible and preferably within six months from the date of production of a certified copy of this judgment. It is expressly made clear that all contentions are kept open.
4. The appeal is accordingly allowed. The impugned judgment of the High Court dated 30.5.1989 is set aside and the matter is remanded to the High Court for disposal as indicated above. RSA No. 858 of 1980 is restored to its file. In the circumstances there will be no order as to costs.
(C.R.) Appeal allowed.
*************
Parallel Citations of other Journals :
Kanai Lal Garari & Ors. v. Murari Ganguly & Ors., 1999(10) Supreme 245
00024
00025