RSA No.2483 of 1982 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No.2483 of 1982 Date of Decision: 5.3.2010 Chiranji ...Appellant Versus Prabhu etc. .....Respondents 1. Whether Reporter of local papers may be allowed to see the judgment- Yes. 2.To be referred to the Reporters or not- Yes. 3. Whether judgment should be reported in the diges-Yes. Coram: Hon'ble Mr. Justice Alok Singh Present: Mr. G.S. Gandhi, Advocate for appellant. Mr. Raj Kumar Gupta, Advocate for respondents. ..... Alok Singh, J. 1. This is the second appeal filed by defendant assailing the judgment and decree dated 9.10.1982 passed by First Appellate Court/Additional District Judge (II), Narnaul thereby allowing Civil Appeal No.107 of 8.7.1982 and further decreeing the suit of the plaintiffs for possession. 2. Brief facts of the present case are that plaintiffs had filed suit for possession in the Trial Court inter alia alleging that plaintiff is the owner of the property in dispute and defendant took the possession of the suit land with the permission of the plaintiffs some time ago; hence, the possession of the defendant over the suit land is RSA No.2483 of 1982 2 permissible; the plaintiffs asked the defendant to hand over the possession to plaintiffs but to no avail; hence, the suit for possession has been filed by the plaintiffs. 3. Defendant contested the suit denying the title of the plaintiff over the suit land; the defendant is in the possession over the suit land is not permissible but on the other hand he has asserted that he has been in possession of the suit land for the last 50-60 years. Defendant has further claimed that he has matured the title by way of adverse possession. 4. Learned Trial Court has framed following issues:- 1. Whether the plaintiffs are the owners of the suit land?OPP. 2. Whether the defendant has become owner of the suit land by adverse possession?OPD. 3. Whether the suit is without limitation?OPD. 4. Whether the plaintiffs are estopped from filing the present suit by their acts and conduct?OPD. 5. Relief. 5. Learned Trial Court having recorded the finding that defendant has matured title by way of adverse possession dismissed the suit of the plaintiff vide judgment and decree dated 29.10.1979. Plaintiff preferred the first appeal which was heard and decided by ADJ II, Narnaul vide impugned judgment dated 9.10.1982 thereby allowing the appeal and decreeing the suit of the plaintiff. Learned First Appellate Court has observed that the defendant could not prove/establish adverse possession over the property in dispute. It was further observed by the First Appellate Court that entries in the revenue record are not conclusive and presumption of the revenue entry can be rebutted. It was further observed that all of sudden, change of entry in the revenue record deleting the possession of the RSA No.2483 of 1982 3 plaintiff and mentioning the possession of the defendant therein was without any mutation or order passed by any Revenue Authority, hence, no presumption in favour of the defendant can be extended presuming the defendant possession over the property in dispute w.e.f. 1956-57. 6. The present second appeal was filed way back in 1982. Memorandum of appeal does not state any substantial question of law as required by Sub Section 3 of Section 100 C.P.C. Learned counsel for the appellant with a letter dated 16.2.2009 addressed to Assistant Registrar (C) of this Court sought to place on record 5 substantial question of law. No application under Rule 2 Order 41 read with order 6 Rule 17 CPC has been moved by the appellant seeking amendment in the memo appeal incorporating substantial question of law therein. 7. This Court on 24.2.2010 has passed following order:- “Memorandum of appeal does not contain any substantial question of law as required by Sub-Section 3 of Section 100. Appellant vide letter dated 16.2.2009 addressed to Assistant Registrar (C) of this Court sought to place on file five alleged substantial question of law. Since memorandum of appeal does not contain substantial question of law, hence, substantial question of law can be substituted in the memo of appeal only by moving an appropriate application seeking amendment under Rule 2 of Order 41 CPC read with Order 6 Rule 17 CPC.” 8. Even today, learned counsel for the appellant is not willing to move any application seeking amendment in the memo of appeal and RSA No.2483 of 1982 4 is adamant to the stand that it is the duty of the High Court to formulate the substantial question law, even if same has not been stated in the memo of appeal as required by Sub-Section 3 of Section 100. Mr. Gurcharan Singh Gandhi, learned counsel for the appellant further stated that since he has placed substantial question of law on record with a letter addressed to Assistant Registrar (c) dated 16.2.2009, hence, same may be treated as substantial question law. 9. I am not inclined to accept the contention of learned counsel for the appellant. In my humble opinion appellant may move an appropriate application under Rule 2 Order 41 CPC read with Order 6 Rule 17 CPC seeking amendment in the memo of appeal incorporating substantial question of law therein. Latter addressed to the Assistant Registrar to place on record five substantial question of law cannot be accepted under any provision of Code. If Code provides procedure, it should be followed by the litigant and their counsel. As observed above memo of appeal does not state alleged substantial question of law; no application, despite of order of this Court dated 24.2.2010 has been moved by the appellant, hence letter addressed to Assistant Registrar of this Court to place substantial question of law on record is nothing except to adopt the procedure which is unheard of. This practice as adopted by learned counsel of the appellant cannot be appreciated. This practise is liable to be condemned. Hence, condemned. 10. In RSA NO.1980 of 1981 Jeet Ram (died) through LRs Vs. Ganga Phal and others decided on 19.2.2010, I have observed in paragraph No.6 as under:- "6........Mr. M. L. Sarin, Sr. Advocate assisted with Ms. Alka Sarin, Advocate argued that even when memorandum of appeal is not drawn, containing substantial questions of law, as provided by Sub-section (3) of Section 100 RSA No.2483 of 1982 5 C.P.C., this Court has ample power to formulate substantial questions of law by invoking Sub-section (4) of Section 100 C.P.C. as well as proviso of Sub-section (5) of Section 100 C.P.C. He while placing reliance on the judgment of the Hon'ble Apex Court in the matter of Uday Shankar Triyar v. Ram Kalewar Prasad Singh and another reported in (2006) 1 SCC 75 argued that non compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. He further stated that procedural defects and irregularities must be permitted to be cured and hyper-technical view should be avoided so that litigant approaching the Court may place his case before the Court. He further stated that non formulation of substantial question of law in the memorandum of appeal as well as at the time of admitting the appeal was because of dictum of the Full Bench of this Court in the matter Ganpat v. Smt. Ram Devi reported in 1978 P&H 137. It was stated by both the Counsel that judgment passed by the Full Bench in the matter of Ganpat (supra) was overruled by the Hon'ble Apex Court in the matter of Kulwant Kaur and others v. Gurdial Singh Mann (dead) by LRs and others reported in AIR 2001 S.C. 1273 . Hence, learned Counsel for the appellants argued that after the judgment of the Hon'ble Apex Court in the case of Kulwant Kaur (supra), appellants should not be suffered for no fault of them and must be permitted to rectify the mistake by invoking Rule 2 or Order 41 C.P.C. RSA No.2483 of 1982 6 5. I have given my serious thought to the argument of learned Counsel appearing for the appellants. Undisputedly, judgment of Apex Court in Kulwant Kaur (supra) came in the year 2001. No step was taken by the appellant in nine years to formulate substantial questions of law in the memo of appeal by moving amendment in view of change of law. There should be some limit of negligence. Law does not help those who do not help themselves. Appellants were sleeping over the appeal for last nine years and now when appeal is being taken up, learned Counsel for the appellants started arguing that since appeal was admitted in the year 1981 without formulating substantial questions of law, hence, this Court should formulate questions of law now without insisting formulation of questions of law in the memo of appeal or in any case, by permitting the appellants, to formulate substantial questions of law in the memo of appeal by way of amendment. 6. Section 100 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 RSA No.2483 of 1982 7 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 such question." 7. This Court can formulate substantial questions of law when appeal is filed containing substantial questions of law in the memorandum of appeal as required under Sub-section (3) of Section 100 C.P.C. Duty of the Court to formulate substantial questions of law comes subsequent to the filing of the memorandum of appeal and not otherwise. Now question remains, as to whether Court can press provisio of Sub- section (5) of Section 100 C.P.C. in service while hearing the appeal, enabling the Court to formulate substantial questions of law as suggested by Mr. M.L. Sarin, Sr. Advocate. 8. In the humble opinion of this Court, word 'OTHER' used in the proviso makes it clear that proviso can be pressed in service when some substantial questions of law has already been formulated at the time of admission. The word 'OTHER' denotes in RSA No.2483 of 1982 8 addition to. If no substantial question of law formulated either in the memo of appeal or by the Court at the time of admission of the appeal then proviso cannot be pressed in service. 9. Rule 3 Order 41 reads as under:- "3. Rejection or amendment of memorandum - (1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there. (2) Where the court rejects any memorandum, it shall record the reasons for such rejection. (3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment. 10. From the combined reading of the Section 100 and Order 41 Rule 3, it can safely be said that no second appeal shall be entertained until and unless memo of appeal contains substantial questions of law. Memo of appeal which does not contain substantial questions of law or which is not drawn up in the manner provided in the Code must be rejected outrightly. 11. This appeal was filed in the year 1981. Now, after almost 29 years it would not be justifiable to return the memorandum of appeal for refiling after necessary correction-amendment in the memo of appeal. Rule 10 of Volume I Chapter 14 Part B of Punjab and Haryana High Court RSA No.2483 of 1982 9 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 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.” 12. Full Bench of this Court in the case of Bikram Dass vs. The Financial Commissioner, Revenue Punjab, Chandigarh and others reported in AIR 1975 P&H 1(1) has ruled that memorandum of appeal can be rejected at the subsequent stage also i.e. even after admission of appeal. 13. In view of Dictum of Full Bench of this Court in the case of Bikram Dass (supra) and Rule 10(supra), at this stage memo of appeal cannot be returned for amendment/correction therein and appeal deserve to be rejected under Rule 3 of Order 41 C.P.C. 14. However, there is a caveat of the RSA No.2483 of 1982 10 above principle. In genuine case, where this Court finds that impugned judgment is absolutely without jurisdiction or judgment passed by learned Court below cannot stand in the legal scrutiny, then of course this Court can permit to incorporate substantial questions of law in the memo of appeal by invoking Rule 2 of Order 41 reads with Section 151 C.P.C. In the matter of Uday Shankar Triyar (supra), the Hon'ble Apex Court in paragraph 17 has observed as under:- “17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are: (i)where the statute prescribing the procedure, also prescribes specifically the consequence of non-compliance; (ii)where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii)where the non-compliance or violation is proved to be deliberate or mischievous; (iv)where the rectification of defect RSA No.2483 of 1982 11 would affect the case on merits or will affect the jurisdiction of the court; (v)in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.” 15. The Hon'ble Apex Court in the matter of Kailash v. Nanhku reported in (2005) 4 SCC 480, in paragraph 28 has observed as under:- “28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar are pertinent : (SCC p.777, paras 5-6) “The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should RSA No.2483 of 1982 12 be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable.... Justice is the goal of jurisprudence – processual, as much as substantive.” 16. Keeping in mind the dictum of the Hon'ble Apex Court in the matter of Uday Shankar Triyar (supra) and Kailash (supra), it can very well be said that jurisdiction of this Court to permit the appellants to formulate substantial questions of law in the memo of appeal is not taken away, it can be exercised when facts and circumstances of that case permits, however, that latitude cannot be given in each and every case. Ordinarily no latitude can be given in the appeal which were filed after the judgment of the Hon'ble Apex Court in Kulwant Kaur's case (supra).” 11. Judgment of Full Bench of this Court in the matter of Bikram Dass v. The Financial Commissioner, Revenue Punjab, Chandigarh and others reported in AIR 1975 P&H 1(1) was over ruled by Hon'ble Apex Court to the extent it involves interpretation of Rule 3 of High Court Rules in the case of State of Punjab v. Shamlal Murari and another reported in (1976) 1 Supreme Court Cases 719 and Mahant Bikram Dass Chela v. Financial Commissioner, Revenue, Punjab, Chandigarh and others reported in (1977) 4 Supreme Court Cases 69. In both the cases (supra), the Hon'ble Apex Court has not overruled view of the Full Bench of this Court as far as it lays down that memo of appeal can be rejected even after admission. In an appeal arising out of the Bikram Dass (supra), once RSA No.2483 of 1982 13 again Hon'ble Supreme Court has decided the appeal on the basis of settlement arrived at between the parties and on the question of interpretation of Rule 3 of High Court Rules. In that appeal also, Hon'ble Supreme Court has not overruled the view of Full Bench of this Court by which this court has laid down that memo of appeal can be rejected even after admission. 12. In the matter of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others reported in (1999) 3 Supreme Court Cases 722, the Hon'ble Apex Court in paragraph No.4 thereof has observed as under:- “It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds.” RSA No.2483 of 1982 14 13. In the matter of Kanai Lal Garari and others v. Murari Ganguly and others reported in (1999) 6 Supreme Court Cases 35, the Hon'ble Apex Court in paragraph No.3 has observed as under:- “The approach of the High Court in our opinion is contrary to the mandatory provisions of Section 100 CPC. On this short ground we are of the opinion that the judgment of the High Court is unsustainable and has got to be set aside and accordingly we do so. Mere quashing of the judgment would not solve the problem because ultimately the High Court will have to consider as to w hether any substantial question of law or questions of law are raised in the memorandum of appeal and if such a question of law or questions of law would arise on the basis of pleadings of the parties and material record. The High Court would formulate the substantial question of law or questions of law if they arise as indicated above and then will hear the parties and dispose of the same in accordance with law.” 14. From the above dictums of the Hon'ble Apex Court, it can safely be held that memorandum of appeal shall state the alleged substantial question of law and thereafter this Court has to find out as to whether alleged substantial question of law as stated in the memorandum of appeal in fact arise in the appeal or not. In my humble opinion, it would be futile to suggest that without stating any substantial question of law in the memorandum of appeal, this Court is to find out substantial question of law, from the material available on record. 15. Although memorandum of apeal deserved to be rejected out rightly under Rule 3 Order 41 CPC. However, just to avoid RSA No.2483 of 1982 15 hypertechnical view, I have heard learned counsel for the parties to find out as to whether in fact, any substantial question of law arises in the appeal or not. Learned First Appellate Court has observed as under:- “Now, it is to be seen whether by virtue of above documents, the defendant has become owner by way of adverse possession or not? I may add that in these documents. The plaintiffs are shown to be owners of the suit land. Now when there was entry in jamabandi in favour of the plaintiffs in the year 1952-53 vide Ex.D-9 in which the plaintiffs were shown as owners in possession, then how the entry in Ex.D-10 for the year 1956-57 in favour of the defendant showing him in possession without payment of rent 'BAWAJAH MALKIYAT KHUD' has come. So, the subsequent jamabandis from 1956-57 onwards have not been legally and correctly made, as they have been made without any mutation and there is not order of Revenue Authorities regarding change. So, there is no presumption of truth in favour of later jamabandi entries of 1956-57 onwards. So, the later entries have been made un- authorisedly or mistakenly and there being no material to justify change of such subsequent entries. I may also refer in this connection to RSA No.2483 of 1982 16 1980 PLJ 561 Chanda Vs Ram Chander in which it has been held by Hon'ble Mr. Justice M.M. Punchhi that where a change was made in the later entries without any mutation or order of revenue authorities showing how change was made, then no presumption if correctness in favour of later entries can be made and earlier entries were entitled to presumption truthfulness. So, the later