2002 JTR(SC) 1160
2003 AIR(SC) 689 ; 2002 10 JT 98 ; 2003 1 RCR(Civ) 293 ; 2002 9 Scale 119 ; 2003 1 SCC 430 ; 2002 8 Supreme 620
2002(8) Supreme 620
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Shivaraj V. Patil & Arijit Pasayat, JJ.
Kanhaiyalal & Ors. -Appellants
versus
Anupkumar & Ors. -Respondents
Civil Appeal Nos. 1622-1623 of 1994
Decided on 27-11-2002
Counsel for the Parties :
For the Appellants : A.P. Dhamija, Ms. Anjali Doshi, Ms. Ruchi Kohli and Sushil Kumar Jain, Advocates.
For the Respondents : S.K. Gambhir, Sr. Advocate, R.R. Singh, Anil K. Sharma, Awnish Sinha, T.N. Singh, W.A. Nomani and S.K. Agnihotri, Advocates.
IMPORTANT POINT
In second appeal under Section 100 CPC 1908 High Court should formulate substantial question of law and hear it on that question. In this case there is no indication of any substantial question of law being formulated. Moreover, there is delay of about 2-1/2 years in pronouncing reserved judgment. Hence matter is remanded to High Court to dispose in accordance with law, keeping in view the observations made in this order within six months.
Act Referred :CIVIL PROCEDURE CODE : S.100
(A) The relevant statutory provision is Section 100 of the Code of Civil Procedure, which governs second appeals to the High Court. Sub-section (3) mandates that the Memorandum of Appeal must precisely state the substantial question of law involved, while sub-section (4) requires the High Court to formulate that question where a substantial legal issue is perceived, and sub-section (5) directs that the appeal be heard strictly on the formulated question. This case turns on the alleged failure of the High Court to identify or articulate any such substantial question of law before reversing the lower courts findings.
(B) A High Court can only exercise jurisdiction over a second appeal if it involves a substantial question of law; mere dissatisfaction with factual findings or allegations of perversity do not suffice to confer jurisdiction. The court must expressly formulate the legal question and base its decision on that specific issue, and prolonged delays in delivering judgment may also warrant setting aside the impugned order.
Facts of the case:
Two second appeals were instituted under Section 100 of the Code of Civil Procedure challenging concurrent findings of fact recorded by the trial court and a first appellate court. The High Court deliberated on the appeals, reserved orders in November 1990, and pronounced judgments in May 1993 without indicating any formulated substantial question of law.
Findings of Court:
The impugned judgments were held to be unsustainable because no substantial question of law was formulated or indicated, rendering the second appeals invalid. The High Courts intervention was deemed impermissible where the factual findings were supported by proper appreciation of evidence, and the long delay in passing judgment further justified setting aside the orders.
Issues:
Whether the High Court correctly exercised jurisdiction under Section 100 CPC without formulating a substantial question of law, and whether the delay in delivering the judgments affects their validity.
Ratio Decidendi:
Section 100 CPC mandates that a substantial question of law must be clearly formulated for a second appeal to be maintainable; the absence of such a question deprives the High Court of jurisdiction, and undue delay in judgment can independently warrant setting aside the impugned order.
Result:
The impugned judgments are set aside, the appeals are allowed, and the matter is remitted to the High Court for disposal in accordance with law within a specified timeframe.
(A) The relevant statutory provision is Section 100 of the Code of Civil Procedure, which governs second appeals to the High Court. Sub-section (3) mandates that the Memorandum of Appeal must precisely state the substantial question of law involved, while sub-section (4) requires the High Court to formulate that question where a substantial legal issue is perceived, and sub-section (5) directs that the appeal be heard strictly on the formulated question. This case turns on the alleged failure of the High Court to identify or articulate any such substantial question of law before reversing the lower courts findings.
(B) A High Court can only exercise jurisdiction over a second appeal if it involves a substantial question of law; mere dissatisfaction with factual findings or allegations of perversity do not suffice to confer jurisdiction. The court must expressly formulate the legal question and base its decision on that specific issue, and prolonged delays in delivering judgment may also warrant setting aside the impugned order.
Facts of the case:
Two second appeals were instituted under Section 100 of the Code of Civil Procedure challenging concurrent findings of fact recorded by the trial court and a first appellate court. The High Court deliberated on the appeals, reserved orders in November 1990, and pronounced judgments in May 1993 without indicating any formulated substantial question of law.
Findings of Court:
The impugned judgments were held to be unsustainable because no substantial question of law was formulated or indicated, rendering the second appeals invalid. The High Courts intervention was deemed impermissible where the factual findings were supported by proper appreciation of evidence, and the long delay in passing judgment further justified setting aside the orders.
Issues:
Whether the High Court correctly exercised jurisdiction under Section 100 CPC without formulating a substantial question of law, and whether the delay in delivering the judgments affects their validity.
Ratio Decidendi:
Section 100 CPC mandates that a substantial question of law must be clearly formulated for a second appeal to be maintainable; the absence of such a question deprives the High Court of jurisdiction, and undue delay in judgment can independently warrant setting aside the impugned order.
Result:
The impugned judgments are set aside, the appeals are allowed, and the matter is remitted to the High Court for disposal in accordance with law within a specified timeframe.
ORDER
Heard the learned counsel for the parties.
2. The impugned judgments were passed by the High Court of Madhya Pradesh at Jabalpur in second appeals reversing the concurrent findings of fact recorded by the trial court as well as the first appellate court. Though the High Court elaborately considered the contentions and the evidence placed on record, the impugned judgments do not reflect or indicate as to what was the substantial question of law that arose for consideration between the parties, as required under Section 100 of the Code of Civil Procedure.
3. The learned senior counsel for the respondents, in support of the impugned judgment, contended that though substantial question of law was not specifically stated in the impugned judgment, it can be made out from the very judgment that the findings recorded by the trial court and the first appellate court were perverse and perversity itself was a substantial question of law for disturbing the findings of fact recorded by the courts below. He also added that in the High Court of Madhya Pradesh, there is a practice that substantial question of law is separately framed at the time of admission in the order sheet. We may notice one more fact that the arguments were heard by the High Court and the appeals were reserved for judgment on 21st November, 1990. The High Court pronounced the impugned judgments as late as on 7th May, 1993 allowing the appeals, interfering with the findings of fact recorded by the courts below.
4. In a second appeal filed under Section 100 of the Code of Civil Procedure, the Memorandum of Appeal shall precisely state the substantial question of law involved in the appeal as required under sub-section (3). Where the High Court is satisfied that in any case a substantial question of law is involved, it shall formulate that question under sub-section (4). The second appeal shall be heard on the question so formulated as stated in sub-section (5).
5. The impugned judgments do not indicate any substantial question of law formulated and that the second appeals were heard on any substantial question of law.
6. This Court has taken the view in cases more than one that in second appeals, substantial question or questions of law must arise for consideration and the appeals are to be heard on the substantial questions of law so formulated.
7. In Ishwar Dass Jain vs. Sohan Lal (2000 (1) SCC 434), this Court, in para 10, has stated thus:
"10. Now under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so."
8. Yet again, in Roop Singh vs. Ram Singh (2000 (3) SCC 708), this Court has expressed that the jurisdiction of a High Court is confined to appeals involving substantial question of law. Para 7 of the said judgment reads:
"7. It is to be reiterated that under Section 100 CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 CPC. That apart, at the time of disposing of the matter the High Court did not even notice the question of law formulated by it at the time of admission of the second appeal as there is no reference of it in the impugned judgment. Further, the fact-findings courts after appreciating the evidence held that the defendant entered into the possession of the premises as a batai, that is to say, as a tenant and his possession was permissive and there was no pleading or proof as to when it became adverse and hostile. These findings recorded by the two courts below were based on proper appreciation of evidence and the material on record and there was no perversity, illegality or irregularity in those findings. If the defendant got the possession of suit land as a lessee or under a batai agreement then from the permissive possession it is for him to establish by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession (Thakur Kishan Singh vs. Arvind Kumar (1994 (6) SCC 591). Hence, the High Court ought not to have interfered with the findings of fact recorded by both the courts below."
(Emphasis supplied)
9. In the light of what is stated above, in our view, the impugned judgments cannot be sustained. Further, as stated above, the arguments were heard in November, 1990 and the High Court pronounced the judgments on 7th May, 1993. This Court in Bhagwandas Fatechand Daswani and Others vs. HPA International and others [(2000) 2 SCC 13], dealing with the contention that the long delay in delivery of judgment is sufficient to set aside the judgment under appeal without going into this broad question, set aside the judgment under appeal on the ground of delay in delivery of judgment without expressing any opinion on the merits of the case and remitted the case to the High Court for deciding the appeal afresh on merits. While doing so this Court observed, "However, it is correct to this extent that a long delay in delivery of judgment gives rise to unnecessary speculations in the minds of parties to a case. Moreover, the appellants whose appeals have been dismissed by the High Court may have the apprehension that the arguments raised at the Bar have not been reflected or appreciated while dictating the judgment -nearly after five years........... We, therefore, on this short question, set aside the judgment under appeal." In this view also the judgments of the High Court under challenge cannot be sustained.
10. In the circumstances, the impugned judgments are set aside. The appeals are allowed. We remit these matters to the High Court for disposal in accordance with law, keeping in view the observations made above.
11. Taking note of the fact that the suits are of the year 1972, we request the High Court to dispose of the second appeals within a period of six months from the date of receipt of the copy of this order.
(N.K.R.) Appeals allowed. Matters remanded
to High Court accordingly.
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