Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3967 OF 2019
(Arising out of S.L.P.(C) No.8898 of 2015)
Ranjit Kumar Karmakar @
Dulal Karmakar ….Appellant(s)
VERSUS
Hari Shankar Das ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed against the final judgment
and order dated 24.09.2014 passed by the High Court
of Tripura at Agartala in R.S.A. No.42 of 2007 whereby
Signature Not Verified
Digitally signed by
ASHOK RAJ SINGH
Date: 2019.04.16
16:51:38 IST
Reason:
the High Court allowed the second appeal filed by the
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respondent herein, set aside the judgment/decree
dated 24.04.2007 passed by the Additional District
Judge, West Tripura, Agartala in T.A. No.34 of 2006
and restored the judgment/decree dated 05.04.2006
passed by the Civil Judge(Junior Division) No.2,
Agartala, West Tripura in T.S. No.103 of 2004.
3. A few facts need mention hereinbelow for the
disposal of this appeal, which involves a short point.
4. The appellant is the plaintiff and the respondent
is the defendant of the civil suit out of which this
appeal arises.
5. The appellant filed a civil suit (T.S.No.103 of
2004) against the respondent in the Court of Civil
Judge (Junior Division). The suit was for declaration
of his right, title and interest in the suit land, for
confirmation of his possession over the suit land and
lastly for permanent injunction. The respondent
contested the suit.
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6. The Trial Court, by judgment/decree dated
05.04.2006 dismissed the suit. The plaintiff (appellant
herein) felt aggrieved and filed first appeal (T.A.
No.34/2006) before the Additional District Judge,
West Tripura, Agartala. By judgment dated
24.04.2007, the First Appellate Court allowed the
appeal and decreed the suit.
7. The defendant (respondent herein) felt aggrieved
and filed second appeal in the High Court of Tripura.
By impugned order, the High Court allowed the appeal
and set aside the judgment of the first Appellate Court
and restored the judgment/decree of the Trial Court
which has given rise to filing of this appeal by way of
special leave to appeal by the plaintiff in this Court.
8. Heard Ms. Malini Poduval, learned counsel for
the appellant and Mr. Rituraj Biswas, learned counsel
for the respondent.
9. Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
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constrained to allow the appeal and while setting aside
the impugned order, remand the case to the High
Court for rehearing of the second appeal afresh on
merits in accordance with law.
10. The need to remand the case to the High Court
has arisen because on perusal of the impugned order,
we notice that the High Court though admitted the
defendant's second appeal by framing as many as six
substantial questions of law for its hearing but
practically none of the substantial questions of law
were answered either way by the High Court while
allowing the second appeal by the impugned order.
11. In other words, though the High Court admitted
the second appeal on six questions but did not answer
any of them on merits and instead went into
discussion on all other issues, which were not the
subject matter of the six questions framed and allowed
the second appeal as if it was deciding the first appeal.
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12. Section 100 (5) of the Code of Civil Procedure,
1908 (hereinafter referred to as “the Code”), in express
terms, provides that the second appeal shall be heard
only on the substantial question(s) of law framed by
the High Court under Section 100 (4) of the Code.
Therefore, the High Court has to confine its inquiry to
the question(s) framed and not beyond it.
13. The proviso to subsection (5) of Section 100 of
the Code also enables the respondent to raise a plea at
the time of hearing that the questions framed either do
not arise in the case or the questions framed are not
the substantial questions of law. At the same time, the
High Court has the jurisdiction to frame any additional
question(s) of law but this the High Court can do by
assigning the reasons.
14. Since the High Court failed to answer the six
questions (set out in Para 2 of impugned order) either
way on their respective merits and yet proceeded to
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allow the second appeal, such order, in our view, is
not legally sustainable and has to be set aside.
15. In view of the foregoing discussion, the appeal
succeeds and is accordingly allowed. The impugned
order is set aside. The case is remanded to the High
Court for deciding the second appeal, out of which this
appeal arises, afresh on its merits in accordance with
law uninfluenced by any observations made in the
impugned order and in this order because having
formed an opinion to remand the case, we have not
expressed any opinion on the merits of the
controversy.
………...................................J.
[ABHAY MANOHAR SAPRE]
....……..................................J.
[DINESH MAHESHWARI]
New Delhi;
April 16, 2019.
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