RSA No.1291 of 1982 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1291 of 1982 (O&M) Date of decision: 17.02.2010 Mohinder Kaur and others ............Appellants Versus Manmohan Singh and others ..........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Amarjit Markan, Advocate for the appellants. Mr. V.K. Garg, Advocate for the respondents. ... Alok Singh J. 1. Heard. 2. Present second appeal was filed way back in the year 1982. Memo of appeal does not contain substantial questions of law as required under Section 100(3) of the Code of Civil Procedure. The appeal was admitted by this Court vide order dated 31.8.1982, without formulating any substantial questions of law. 3. On being asked, learned counsel for the appellants argued that in view of Full Bench judgement of this Court in Ganpat v. Smt. Ram Devi, 1978 P&H 137, usual practice in this Court was not to formulate substantial RSA No.1291 of 1982 2 questions of law in the Memorandum of Appeal. He further submitted that in view of Full Bench judgement in Ganpat's case (supra), this Court was not supposed to formulate substantial questions of law while admitting the appeal. The aforesaid judgement in Ganpat's case (supra) was over ruled by the Apex Court in Kulwant Kaur and others v. Gurdial Singh Mann (dead) by LRs and others AIR 2001 S.C. 1273. After the judgement of the Apex Court in Kulwant Kaur's case (supra), Memo of Appeal ought to have been drafted strictly as per Section 100(3) of C.P.C. Till date, even after the lapse of about 9 yeas after the judgement of the Supreme Court in Kulwant Kaur's case (supra), no application under Rule 2 Order 41 was moved seeking permission to incorporate substantial questions of law in the Memo of Appeal. 4. Full Bench of this Court in Bikram Dass vs. The Financial Commissioner, Revenue Punjab, Chandigarh and others AIR 1975 P&H 1 (1), has held that even after admission, the appeal can be rejected by invoking Rule 3 Order 41 of C.P.C. 5. Rule 10 of Volume I Chapter 14 Part B of Punjab and Haryana High Court Rules and Order reads as under:- “10. Amendment after admission – When an appeal has been registered and a date has been fixed for hearing, the petition cannot be returned for amendment. The appeal must be disposed of in the regular manner by dismissal, or by a judgment affirming, varying or reversing the decree of the lower Court. If the appellant should desire to urge any ground of objection not set forth in the memorandum of appeal, he can, under the provisions of Order XLI, Rule 2, of the Code of Civil RSA No.1291 of 1982 3 Procedure, do so only with the permission of the Court and such permission should ordinarily be applied for in writing some time before the date fixed for the hearing, under Order XLI Rule 12, of the Code, in order that the respondent may have sufficient opportunity of contesting the case on that ground, without the necessity of a postponement.” 6. As per the Full Bench judgement of this Court in Bikram Dass's (supra) and Rule 10(supra), this Court has no other option except to proceed with the appeal as it is. 7. Learned counsel for the appellants argued that the grounds taken in the appeal should be taken as substantial questions of law. He has placed reliance on the judgement of the Apex Court in Ram Sarup Vs. Raj Dulari, 2000(3) RCR(Civil) 589 and argued that if the judgement of the Courts below is based on misappreciation of evidence or irrelevant evidence or ignoring relevant evidence resulting in mis-carriage of justice, the High Court can interfere with such finding. 8. Learned counsel for the appellants also placed reliance on the judgements of the Apex Court in Thiagarajan and others Vs. Sri Venugopalaswamy B. Koil and others, 2004(5) SCC 762 and Ushabai and others Vs. M/s. Balkrishna Biharilal & others, 2006(1) RCR (Rent) 177 and argued that this Court while invoking Section 100 (5) of C.P.C. can formulate substantial questions of law after perusal of the record. 9. In Ushabai's case (supra), initially, substantial questions of law were formulated by the High Court, however, the Apex Court had remanded the matter to the High Court to formulate other/additional questions of law on the bonafide need by invoking Section 100 (5) of C.P.C. RSA No.1291 of 1982 4 10. In Thiagarajan's case (supra) also, initially substantial questions of law were framed and vide paragraph 14 thereof, the Apex Court has observed that appeal on any other substantial question of law not formulated can be heard. 11. Section 100 of C.P.C. 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. (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 sub-section 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 RSA No.1291 of 1982 5 such question." 12. Word “other” is used in proviso to Section 100 of C.P.C. It means by invoking proviso of Section 100(5) of C.P.C., this Court can formulate other/additional substantial questions of law, if deems fit. However, this power can be exercised if some substantial questions of law had already been formulated. The word “other” means in addition to what has already been formulated. If no substantial question of law was formulated either in the Memo of Appeal or by the Court then Section 100 (5) cannot be pressed into service. 13. In the absence of any substantial question of law in the Memo of Appeal and in the absence of any application under Rule 2 Order 41 C.P.C. seeking permission to amend the appeal, I have no other option except to reject the Memo of Appeal. 14. In view the above, Memo of Appeal is rejected with no order as to costs. ( Alok Singh ) Judge 17.02.2010 sk