RSA No.861 of 1981 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.861 of 1981 (O&M) Date of decision: 16.02.2010 Bikkar Singh and others ............Appellants Versus Jalaur Singh and others ..........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. M.L. Sarin, Sr. Advocate with Ms. Alka Sarin, Advocate for the appellants. Mr. F.S. Virk, Advocate for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment?yes 2. To be referred to the Reporters or not? yes 3. Whether the judgment should be reported in the Digest? yes ALOK SINGH, J. 1. In this second appeal, judgment of trial Court as well as of first Appellate Court are being assailed. Learned trial Court vide impugned judgment dated 24.8.1979 decreed the suit of the plaintiffs for possession declaring the impugned transactions of sales to be void and further restraining the Jugraj Singh, defendant from any alienation of the remaining land described in the heading of the plaint, having observed that Jugraj Singh, defendant has absolutely no legal necessity to alienate the coparcenary land. RSA No.861 of 1981 (O&M) -2- 2. First Appellate Court allowed the appeal in part upheld the finding of the trial Court that there was absolutely no legal necessity to alienate the coparcenary property, however, modified the decree to the extent that suit shall stands dismissed to the extent of the 1/3rd share in the entire coparcenary property which would have fall in the share of Jugraj Singh, vendor – defendant. 3. This second appeal was filed way back in 1981. A perusal of the memo of appeal shows that no substantial question of law has been formulated therein as required under Section 100(3) of the Code of Civil Procedure. Not only this, when this appeal was admitted by this Court vide order dated 3.6.1981, no substantial question of law was formulated by this Court too as required under Section 100(4) of the Code of Civil Procedure. 4. Today an application under Order 41 Rule 2 CPC read with Section 151 CPC bearing C.M. No.1893-C of 2010 is moved seeking permission of this Court to incorporate grounds of appeal and proposed substantial questions of law, by way of amendment in the memorandum of appeal. 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 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 RSA No.861 of 1981 (O&M) -3- 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. 5. I have given my serious thought to the argument of learned Counsel appearing for the appellants. Undisputedly, RSA No.861 of 1981 (O&M) -4- 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.861 of 1981 (O&M) -5- 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 RSA No.861 of 1981 (O&M) -6- in service when some substantial questions of law has already been formulated at the time of admission. The word 'OTHER' denotes in 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 RSA No.861 of 1981 (O&M) -7- 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 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 RSA No.861 of 1981 (O&M) -8- 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 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 RSA No.861 of 1981 (O&M) -9- 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 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 RSA No.861 of 1981 (O&M) -10- 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 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 RSA No.861 of 1981 (O&M) -11- 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). 17. Coming to the present case, a suit was filed by the son against his father challenging the alienation made by the father of the coparcenary property, including the share of the son, it was accepted by the learned trial Court. However in appeal, First Appellate Court while confirming the finding of fact recorded by the trial Court that there was no legal necessity before the father to alienate the share of the son, confirmed the decree qua the share of the son and dismissed the suit qua the share of the father which would have been fallen in the share of the father in the event of partition. 18. Mr. M. L. Sarin, Sr. Advocate while placing reliance on the judgment of the Hon'ble Apex Court in the matter of Bara Singh v. Kashmira Singh and others reported in JT 1990(3) S.C. 843 argued that both the Courts below have not gone into the question of the good management and illegally declared the alienation made by the father void. Mr. M.L. Sarin, Sr. Advocate further argued that total land was 88 kanals while father transferred only 48 kanals. Hence, question of good management ought to have been seen by the Courts below RSA No.861 of 1981 (O&M) -12- which was not done. Hence, this is a substantial question of law. 19. In the matter of Bara Singh (supra), question was not pertaining to the coparcenary land. The Hon'ble Supreme Court was dealing the question of custom where one of the brother was challenging the alienation made by the other brother limited to his own share. However, in the present case, facts are different. Here no customary rights is being claimed. 20. Learned trial Court has observed while dealing with the question of legal necessity in paragraph 9 as under:-. “9. The present litigation is an out – come of very unfortunate circumstances wherein vendor Jugraj Singh was standing in the dock to face a serious charge of attempt to murder in support of which one of his sons entered the witness box as a prosecution witness. Though that charge subsequently failed but cordiality of relations between the father and other members of his immediate family (consisting of two sons and a daughter, his wife being dead) was gone for ever. Instead the bitterness in the heart of the father poured out in no uncertain manner during his appearance in the witness box as D.W.2 culminating in a solemn resolve towards the end of the second para of his cross examination:- “ As I am very much enraged against my sons, I would not like them to succeed to RSA No.861 of 1981 (O&M) -13- my estate.” Earlier in his statement he referred to some land since redeemed by him and said:- “That land is still in my name and I am not going to give it to my sons.” His deep sense of bitterness is again visible when he again asserted:- “ I have about 5 killas of land still left at village Phulewala, which is under the forcible cultivation of the plaintiffs because I was dispossessed under a threat of death. I had sold the land under pressure from my sons as they were after my blood and hence I would have sold even land which remained with me at village Phulewala because I can not reside at that village.” The wretched condition of the father is further apparent from his admission towards the fag end of his cross- examination when he stated:- “I had only one wife to which the plaintiffs were born. My relations with them got strained due to the said criminal case. I had an unmarried daughter at the time of that case, but the plaintiffs would not allow her to remain with me in order to harass because I had none to prepare my meals. It is correct that the plaintiffs married her after I was acquitted in that criminal case. I did not contribute towards her marriage because she was married against my wishes. I RSA No.861 of 1981 (O&M) -14- was angry with my daughter because alongwith my sons she had cordial relations with the party which was arranged against me in that criminal case.........'' 21. In view of the finding recorded by the trial Court as confirmed by the First Appellate Court where father was adamant not to give single inch of land out of the coparcenary property to his son, view taken by both the Courts below seems to be justified. Mr. M. L. Sarin, Sr. Advocate argued that since father has already purchased the land out of the money received from the disputed alienation, hence, suit ought to have been dismissed in toto. I do not agree with the arguments of Mr. M. L. Sarin, Sr. Advocate. Defending himself in a criminal case, where son was prosecution witness against the father, alienation made by the father including the share of the son cannot be said to be bona fide and demand of legal necessity. 22. In view of above, I am of the view that present appeal contains no substantial question of law, which requires adjudication. Hence, appeal is dismissed with no order as to cost. ( ALOK SINGH ) JUDGE 16.02.2010 ashish