2001 JTR(SC) 813
2001 44 AllLR 598 ; 2001 3 CTC 365 ; 2001 5 JT 559 ; 2001 10 SCC 191 ; 2001 KHC 1224 ; 2001 2 KLT(Online) 1051 ; 2001 5 Supreme 387
2001(5) Supreme 387
SUPREME COURT OF INDIA
K.T. Thomas & R.P. Sethi, JJ.
State of Kerala - Appellant
versus
Puthenkavu N.S.S. Karayogam & Anr. -Respondents
Civil Appeal No. 3441 of 2001
(Arising out of SLP (Civil) No. 17526 of 1999)
With
SLP (C) .......... of 2001 (CC 3388)
Decided on 1-5-2001
IMPORTANT POINT
Unless High Court is satisfied that there was a substantial question of law, jurisdiction for second appeal could not be exercised.
Act Referred :CIVIL PROCEDURE CODE : S.100
(A) The relevant statutory provision invoked is Section 100 of the Code of Civil Procedure, which governs the jurisdiction of a High Court to entertain a second appeal. In this instance, the High Court exercised this jurisdiction to interfere with concurrent findings on facts in a second appeal challenging a single judge's injunction. The section provides the basis for the High Court's intervention, but such intervention is contingent on the existence of a substantial question of law. The impugned judgment utilized this provision to grant a perpetual injunction and direct specific preservation measures concerning temple property, but the appellate court scrutinized the prerequisite for such intervention.
(B) A core legal principle is that a High Court cannot exercise jurisdiction under Section 100 of the Code of Civil Procedure to adjudicate a second appeal unless a substantial question of law is formulated and discernible from the record. The absence of such a question mandates that the high court must proceed further rather than interfere with factual findings. Furthermore, where the main impugned order is set aside, any consequential orders made pursuant to it automatically cease to have effect.
Facts of the case:
A respondent filed a suit seeking a declaration of title and an injunction to restrain construction on open space adjoining a temple. The trial court dismissed the suit, and the first appellate court affirmed this dismissal. The High Court then intervened under Section 100 to grant a perpetual injunction and direct the state to preserve the property as a temple maidan, with limited permission to complete a specific record room. This judgment was challenged on appeal.
Findings of Court:
The appellate court found that the learned single Judge failed to formulate any substantial question of law, which is a prerequisite for invoking Section 100 jurisdiction in a second appeal. Consequently, the intervention and the impugned judgment lacked the necessary jurisdictional foundation.
Issues:
Whether the learned single Judge formulated a substantial question of law required for the High Court to exercise jurisdiction under Section 100 of the Code of Civil Procedure in a second appeal.
Ratio Decidendi:
The absence of a formulated substantial question of law negates the jurisdiction for a second appeal under Section 100, rendering the impugned judgment void and necessitating its remission to the High Court for fresh disposal after providing an opportunity to formulate such a question.
Result:
The appeal is allowed, the impugned judgment is set aside, and the second appeal is remitted to the High Court for disposal afresh.
(A) The relevant statutory provision invoked is Section 100 of the Code of Civil Procedure, which governs the jurisdiction of a High Court to entertain a second appeal. In this instance, the High Court exercised this jurisdiction to interfere with concurrent findings on facts in a second appeal challenging a single judge's injunction. The section provides the basis for the High Court's intervention, but such intervention is contingent on the existence of a substantial question of law. The impugned judgment utilized this provision to grant a perpetual injunction and direct specific preservation measures concerning temple property, but the appellate court scrutinized the prerequisite for such intervention.
(B) A core legal principle is that a High Court cannot exercise jurisdiction under Section 100 of the Code of Civil Procedure to adjudicate a second appeal unless a substantial question of law is formulated and discernible from the record. The absence of such a question mandates that the high court must proceed further rather than interfere with factual findings. Furthermore, where the main impugned order is set aside, any consequential orders made pursuant to it automatically cease to have effect.
Facts of the case:
A respondent filed a suit seeking a declaration of title and an injunction to restrain construction on open space adjoining a temple. The trial court dismissed the suit, and the first appellate court affirmed this dismissal. The High Court then intervened under Section 100 to grant a perpetual injunction and direct the state to preserve the property as a temple maidan, with limited permission to complete a specific record room. This judgment was challenged on appeal.
Findings of Court:
The appellate court found that the learned single Judge failed to formulate any substantial question of law, which is a prerequisite for invoking Section 100 jurisdiction in a second appeal. Consequently, the intervention and the impugned judgment lacked the necessary jurisdictional foundation.
Issues:
Whether the learned single Judge formulated a substantial question of law required for the High Court to exercise jurisdiction under Section 100 of the Code of Civil Procedure in a second appeal.
Ratio Decidendi:
The absence of a formulated substantial question of law negates the jurisdiction for a second appeal under Section 100, rendering the impugned judgment void and necessitating its remission to the High Court for fresh disposal after providing an opportunity to formulate such a question.
Result:
The appeal is allowed, the impugned judgment is set aside, and the second appeal is remitted to the High Court for disposal afresh.
JUDGMENT
Thomas, J.-Civil Appeal No. 3441 of 2001 :
Delay condoned.
Leave granted.
2. The impugned judgment was rendered by a learned single Judge of the High Court of Kerala in a Second Appeal. Respondent filed a suit for declaration of title and injunction restraining the defendant from constructing any building in the open space alleged to be abutting a temple. The trial Court dismissed the suit. The first Appellate Court confirmed the judgment and decree passed by the trial Court and dismissed the appeal. But the High Court while exercising jurisdiction under Section 100 of the Code of Civil Procedure interfered with the concurrent findings on facts and granted a perpetual injunction restraining the defendant and the local authorities of the State of Kerala from putting up any fresh construction in the suit property. The learned single Judge issued a mandatory injunction directing the defendant to preserve the suit property as a maidan to be used for the purposes of the temple. It was further ordered that defendant - State of Kerala is permitted only to complete the construction of the Record Room of the village office at the southern western corner of the maidan.
3. It is the said judgment of the learned single Judge which the State of Kerala has now challenged in the appeal.
4. Both sides have advanced several contentions in the appeal petition as also in the counter-affidavit filed. We refrain from expressing any opinion on the merits of the case as we propose to remit the Second Appeal for disposal afresh. We have noted that the learned single Judge has not formulated any question of law, such less any substantial question of law, which alone would have clothed the High Court with jurisdiction under Section 100 of the CPC to deal with a Second Appeal. This court has stated time and again that unless the High Court is satisfied that there is a substantial question of law, jurisdiction for second appeal cannot be exercised. It is unnecessary to cite the authorities on that aspect as it has now become well neigh settled. Both sides agreed that no substantial question of law has been formulated by the learned single Judge. If so the learned single Judge ought to have proceeded further.
5. We, therefore, set aside the impugned judgment. Learned counsel for the respondent submits that substantial question of law can be discerned from the materials. He pleaded for a chance to formulate such question of law. In the interest of justice, we feel that the Second Appeal can be disposed of by the High Court afresh after affording a reasonable opportunity to both sides. If any question of law could be so discerned it has then to be decided whether it is substantial enough for acquiring jurisdiction under Section 100 of the CPC.
6. With these observations this appeal is disposed of and the Second Appeal is remitted to the High Court for fresh disposal.
Special Leave Petition (Civil)…..... of 2001 (CC 3388)
7. Vadavucode-Puthencruz Grama Panchayat got itself impleaded as a party and made a bid to file a special leave petition in challenge of the same judgment which we set aside. In view of the Judgment we now pronounced it is unnecessary to consider the special leave petition sought to be filed by the said Panchayat. However, we permit the said Panchayat to move the High Court for getting itself impleaded in the Second Appeal.
8. Mr. E.M.S. Anam, learned counsel for the petitioner Vadavucode-Puthencruz Grama Panchayat submitted that pursuant to the impugned order learned single Judge had passed consequential order and he pleads that this court may interfere with the said consequential orders also. We find it unnecessary because when once the main impugned order is set aside any other consequential order made pursuant to the same would automatically go.
With these observations this matter is disposed of.
Appeal allowed.
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