Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.6272 OF 2010
Vijay Arjun Bhagat & Ors. ….Appellant(s)
VERSUS
Nana Laxman Tapkire & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is directed against the final
judgment and order dated 19.07.2007 passed by
the High Court of Judicature at Bombay, Bench at
Aurangabad in Second Appeal No.274 of 2002
whereby the Single Judge of the High Court allowed
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2018.05.11
17:01:48 IST
Reason:
the appeal filed by respondent Nos.1 & 2 herein and
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set aside the judgment/order dated 16.01.2002
passed by the District Judge, Ahmednagar in R.C.A.
No.21 of 2000 and confirmed the judgment dated
10.12.1999 passed by the Civil Judge, Junior
Division, Ahmednagar in R.C.S. No.600 of 1982.
2.
In order to appreciate the issues involved in
the appeal, few relevant facts need to be mentioned
hereinbelow.
3. The appellants are the plaintiffs whereas the
respondents are the defendants in a civil suit out of
which this appeal arises.
4. The appellants filed a civil suit (R.C.S. No.
600/1982) against the respondents in the Court of
Civil Judge, Junior Division, Ahmednagar for
declaration that, (1) the suit properties described in
detail in the schedule are ancestral properties of the
plaintiffs (2) the plaintiffs are the owners of the suit
properties, and (3) the suit property described in
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schedule 1(A) is not a Trust property and be
declared as the plaintiffs’ private property.
5. Defendant No. 1 filed its written statement
whereas defendant Nos. 3 and 4 filed their joint
written statement. The defendants raised several
objections about maintainability of the suit. They
also denied plaintiffs’ claim on merits.
6. The Trial Court framed issues. Parties adduced
evidence in support of their case. By judgment and
decree dated 10.12.1999, the Trial Judge though
answered some issues in plaintiffs’ favour but
eventually dismissed the plaintiffs’ suit on merits.
7. The plaintiffs felt aggrieved and filed First
Appeal (R.C.A. No.21/2000) in the Court of District
Judge, Ahmednagar. By order dated 16.01.2002,
the first Appellate Court allowed the appeal, set
aside the judgment and decree of the Trial Court
and decreed the plaintiffs’ suit.
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8. Against the said judgment, Defendant Nos. 3 &
4 (respondent Nos. 1 & 2 herein) filed appeal being
Second Appeal No. 274/2002 in the High Court of
Bombay (Bench at Aurangabad). The High Court on
30.11.2002 admitted the second appeal on the
following substantial questions of law:
“(A) Whether the first appellate court has
misread the document of partition
deed(Exh.81) and therefore the finding in this
behalf suffers from perversity.
(B) Whether the first appellate Court has
failed to consider the appropriate provisions
of Order VII Rule 3 of C.P.C.
(C) Whether the first appellate Court has
erroneously relied upon Xerox copies of the
mortgage deed which is not registered.
(D) Whether the first appellate Court has
erroneously that the suit properties are the
private properties of original plaintiffs.
(E) Whether the Civil Court has jurisdiction
to decide the nature of the property which
issue required to be dealt with by the Charity
Commissioner.
(F) Whether the suit is barred by
limitation.”
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9. By impugned judgment, the Single Judge of
the High Court allowed the appeal and, in
consequence, set aside the order passed by the
District Judge in R.C.A. No.21 of 2000 and
confirmed the judgment passed by the Civil Judge
in R.C.S. No.600 of 1982 which has given rise to
filing of the present appeal by way of special leave
by the plaintiffs before this Court.
10. The short question, which arises for
consideration in this appeal, is whether the High
Court was justified in allowing the appeal.
11. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow the appeal, set aside the
impugned judgment and remand the case to the
High Court for deciding the appeal afresh on merits
in accordance with law.
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12. In our considered view, the need to remand the
case to the High Court has occasioned because the
High Court while deciding and eventually allowing
the second appeal did not follow the mandatory
procedure prescribed under Section 100 of the Code
of Civil Procedure, 1908 (hereinafter referred to as
“the Code”).
13. In other words, we find that the manner in
which the High Court proceeded to decide the
second appeal did not appear to be in conformity
with the mandatory procedure prescribed under
Section 100 of the Code. It is clear from our
reasoning given infra.
14. Section 100 of the Code reads as under:
“100. Second appeal (1) Save as otherwise
expressly provided in the body of this Code
or by any other law for the time being in
force, an appeal shall lie to the High Court
from every decree passed in appeal by any
Court subordinate to the High Court, if the
High Court is satisfied that the case involves
a substantial question of law.
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(2) An appeal may lie under this section
from an appellate decree passed ex parte.
(3) In an appeal under this section, the
memorandum of appeal shall precisely state
the substantial question of law involved in
the appeal.
(4) Where the High Court is satisfied that a
substantial question of law is involved in any
case, it shall formulate that question.
(5) The appeal shall be heard on the
question so formulated and the respondent
shall, at the hearing of the appeal, be allowed
to argue that the case does not involve such
question:
Provided that nothing in this subsection
shall be deemed to take away or abridge the
power of the court to hear, for reasons to be
recorded, the appeal on any other substantial
question of law, not formulated by it, if it is
satisfied that the case involves such
question.”
15. Subsection (1) of Section 100 says that the
second appeal would be entertained by the High
Court only if the High Court is "satisfied" that the
case involves a "substantial question of law". Sub
section (3) makes it obligatory upon the appellant to
precisely state in memo of appeal the "substantial
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question of law" involved in the appeal. Subsection
(4) provides that where the High Court is satisfied
that any substantial question of law is involved in
the case, it shall formulate that question. In other
words, once the High Court is satisfied after hearing
the appellant or his counsel, as the case may be,
that the appeal involves a substantial question of
law, it has to formulate that question and then
direct issuance of notice to the respondent of the
memo of appeal along with the question of law
framed by the High Court. Subsection (5) provides
that the appeal shall be heard only on the question
formulated by the High Court under subsection (4).
In other words, the jurisdiction of the High Court to
decide the second appeal is confined only to the
question framed by the High Court under sub
section(4). The respondent, however, at the time of
hearing of the appeal is given a right under sub
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section (5) to raise an objection that the question
framed by the High Court under subsection (4)
does not involve in the appeal. The reason for giving
this right to the respondent for raising such
objection at the time of hearing is because the High
Court frames the question at the admission stage
which is prior to issuance of the notice of appeal to
the respondent. In other words, the question is
framed behind the back of the respondent and,
therefore, subsection(5) enables him to raise such
objection at the time of hearing that the question
framed does not arise in the appeal. The proviso to
subsection (5), however, also recognizes the power
of the High Court to hear the appeal on any other
substantial question of law which was not initially
framed by the High Court under subsection (4).
However, this power can be exercised by the High
Court only after assigning the reasons for framing
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such additional question of law at the time of
hearing of the appeal
(See C.A. Nos.91189119 of
2010 titled Surat Singh (Dead) vs. Siri Bhagwan
& Ors. decided on 19.02.2018).
16. Adverting to the facts of the case at hand, we
find that the High Court on 30.11.2002 admitted
the second appeal and framed six substantial
questions of law quoted supra as required under
subsections (1) and (4) of Section 100 of the Code
which, according to the High Court, arose in the
second appeal.
17. The High Court was, therefore, required to
decide the second appeal only on the six formulated
substantial questions of law as provided under sub
section (5) of Section 100 of the Code.
18. We, however, find that the High Court instead
of deciding the second appeal on these six
substantial questions of law framed at the time of
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admission allowed the appeal on two additional
substantial questions of law (see Para 10 of the
impugned judgment) which were neither framed by
the High Court at the time of admission of the
second appeal on 30.11.2002 and nor at the time of
hearing the second appeal.
19. In other words, the High Court allowed the
appeal on the two questions, which were framed in
the impugned judgment only. These two questions
read as under:
“In S.A. No.274/2002, following
substantial questions of law arise:
(i) Whether the Civil Court has jurisdiction
to decide the question whether a
particular property is that of a Public
Trust or that it is not a property of the
Public Trust and belongs to individual
claimant?
(ii) Whether the suit for declaration that
the properties were not of the Public
Trust was barred by limitation and,
therefore, the impugned judgment of
the first appellate Court deserves
interference?”
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20. In our considered opinion, the High Court,
therefore, committed two jurisdictional errors while
deciding the second appeal.
21. First, though it rightly framed six substantial
questions of law at the time of admission of the
appeal on 30.11.2002 as arising in the case but
erred in not answering these questions.
22. As mentioned above, the High Court had the
jurisdiction to decide the second appeal only on the
six substantial questions of law framed at the time
of admitting the appeal. In other words, the
jurisdiction of the High Court to decide the second
appeal was confined only to six questions framed
and not beyond it.
23. Second, the High Court though had the
jurisdiction to frame additional question(s) by taking
recourse to proviso to subsection(5) of Section 100
of the Code but it was subject to fulfilling the three
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conditions, first "such questions should arise in the
appeal", second, "assign the reasons for framing the
additional questions" and third, "frame the
questions at the time of hearing the appeal".
24. In this case, the High Court committed an
error because it framed two additional questions in
the judgment itself.
25. This procedure adopted by the High Court
while deciding the second appeal caused prejudice
to the rights of the parties because the parties,
especially the appellants herein, who suffered the
adverse order, had no knowledge about framing of
the two additional questions inasmuch as they were
deprived of the opportunity to address the Court on
the two additional questions on which the impugned
judgment was founded.
26. Learned counsel for the respondents, however,
made sincere efforts to persuade the Court to
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uphold the impugned judgment on merits but in the
light of what we have held above, it is not possible
to accept the submissions of the learned counsel for
the respondents much less the submissions urged
on the merits of the controversy.
27. We, however, make it clear that having formed
an opinion to remand the case, we have refrained
from applying our mind to the merits of the case. It
is now for the High Court to decide the appeal on
merits.
28. In the light of the foregoing discussion, the
appeal succeeds and is allowed. The impugned
judgment is set aside. The case is remanded to the
High Court for deciding the appeal afresh on merits
in accordance with law without being influenced by
any of our observations.
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29. Since the appeal is quite old, the same shall be
decided expeditiously.
…...……..................................J.
[ABHAY MANOHAR SAPRE]
………...................................J.
[S. ABDUL NAZEER]
New Delhi;
May 11, 2018
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