Full Judgment Text
REPORTABLE
2024 INSC 574
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S).8038-8039 OF 2024
(ARISING OUT OF S.L.P (CIVIL) NO(S).11728-11729/2018)
NEK PAL & ORS. APPELLANT(S)
VERSUS
NAGAR PALIKA PARISHAD & ORS. RESPONDENT(S)
J U D G M E N T
ABHAY S. OKA, J.
1. Leave granted.
2. Our attention is invited to the impugned judgment of the
High Court in a Second Appeal under Section 100 of the Code of
Civil Procedure, 1908 (for short, “the CPC”). Following is the
relevant part of the impugned judgment:
“Since no substantial question of law was
formulated at the time of admission of the
appeal on 30.5.2003, hence having heard the
matter partially and during the course of
arguments, in the presence of learned
Counsels of both the parties, this Court
confined itself to adjudicate the following
substantial questions of law:
1. Whether the alleged transaction of the
disputed property was void ab initio being
the violation of Section 7 of Hindu Public
Religious Institution (Prevention of
Dissipation of Properties) Act, 1962.
2. Whether the property was owned by Dera
Baba Dargah Singh and was of the religious
charitable nature. If it is so, whether it
could have been transferred by the self
claimed manager Jaswinder Singh in the nature
and manner it was transferred?
Signature Not Verified
Digitally signed by
ASHISH KONDLE
Date: 2024.08.03
15:24:45 IST
Reason:
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3. Whether both the lower courts have rightly
decreed the suit on the basis of Khasra,
Khatauni and ‘Kisan Bahi’ which were issued
by the revenue officials in favour of the
lease holders.”
3. The aforesaid paragraph indicates that at the time of
admitting the second appeal under Section 100 of the CPC,
substantial questions of law were not formulated. Unless
substantial questions of law are formulated at the time of
admission of the appeal or any time subsequent thereto, a second
appeal cannot be finally heard. The reason is that a second
appeal can be finally heard only on a substantial question of
law formulated earlier. In fact, the act of finally hearing a
second appeal without framing any substantial question of law is
itself illegal. There is nothing on record to show that the
High Court formulated the substantial questions of law and gave
an opportunity to the parties to argue on the basis of those
substantial questions of law. All that the High Court says is
the Court has confined itself to three substantial questions of
law. The High Court did not put the rival Advocates to the
notice before the commencement of hearing that it was proposing
to hear the appeal on specific substantial questions of law. The
High Court could have framed substantial questions of law and
heard the appeal after few days so that the Advocates had a
notice that the appeal will be heard on specific substantial
questions of law.
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4. Therefore, the procedure followed by the High Court is
completely illegal and contrary to Section 100 of the CPC. Only
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on this ground, we set aside the impugned judgment dated 13
November, 2017 and restore Second Appeal Nos.34/2003 and 48/2003
to the file of the High Court of Uttarakhand at Nainital. All
contentions of the parties on merits of the Second Appeals are
kept open.
5. A copy of this order shall by forwarded by the Registry to
the Registrar (Judicial) of the High Court of Uttarakhand. The
Registrar (Judicial) of the High Court shall list the restored
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Second Appeals before the roster Bench on 27 August, 2024. The
parties, who are appearing today, shall be under an obligation
to appear before the High Court on that date. The High Court
need not issue a notice to those parties.
6. If the High Court wants to frame substantial questions of
law as indicated in the impugned judgment or if the High Court
desires to frame additional substantial questions of law, it is
open for the High Court to do so. After completing the said
exercise, the High Court shall fix a date for hearing of the
Second Appeals taking into consideration the fact that the
Second Appeals are 21 years old.
7. We also clarify that till the date of the impugned judgment
if any interim relief was operative in the restored Second
Appeals, the same shall continue to operate.
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8. The Civil Appeals are partly allowed on the above terms.
9. Pending applications, including the application for
impleadment, stand disposed of accordingly.
..........................J.
(ABHAY S. OKA)
..........................J.
(AUGUSTINE GEORGE MASIH)
NEW DELHI;
JULY 26, 2024.
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