Surat Singh (Dead) vs Siri Bhagwan

2. In order to appreciate the short issue involved in the appeals, few relevant facts need mention infra.

3. One Murti Devi (since dead) and her daughter Smt. Bholi Devi filed Civil Suit No.315/81 in the Court of Sub-Judge, IInd Class, Rewari against one Siri Bhagwan (respondent No.1 herein). The suit was for a declaration that the decree obtained by Siri Bhagwan against Murti Devi on 11.11.1980 in Civil Suit No. 638/1980 in relation to the land measuring 37 Kanals 14 Marlas situated at Village Alampur, Tahsil Rewari, District Mahendergarh be declared null and void and not binding on the plaintiffs because it was obtained by defendant No.1-Siri Bhagwan by playing fraud and 2 misrepresentation on the plaintiff-Murti Devi by taking advantage of her illiteracy and poverty. The defendant No.1-Siri Bhagwan contested the suit.

7. By order dated 04.01.1989, Surat Singh’s application was allowed and he was allowed to become a party-respondent in the second appeal. In the meantime, Murti Devi expired. Since one daughter of Murti Devi was already on record as plaintiff No.2 and the other daughter was on record as proforma defendant No. 2, the Lis involved in the appeal continued.

12. First, we find that the High Court allowed the second appeal filed by respondent No. 1 herein without hearing respondent No.4 before it, i.e., (appellant herein). In other words, the High Court allowed the second appeal after hearing the appellant of second appeal only and not respondent No.4 of the second appeal, who was absent at the time of hearing.

13. When respondent No. 4 (appellant herein) filed an application under Section 151 read with Order 41 Rule 21 of the Code praying for an opportunity of hearing, his application was dismissed by the High Court.

28. Yet, the other reason is that the respondents are only required to reply while opposing the second appeal to the question formulated by the High Court under sub-section (4) and not beyond that. If the question of law is not framed under sub-section (4) at the time of admission or before the final hearing of the appeal, there remains nothing for the respondent to oppose the second appeal at the time of hearing. In this situation, the High Court will 14 have no jurisdiction to decide such second appeal finally for want of any substantial question(s) of law.

30. If, however, the High Court is satisfied after hearing the appellant at the time of admission that the appeal does not involve any substantial question of law, then such appeal is liable to be dismissed in limine without any notice to the respondents after recording a finding in the dismissal order that the appeal does not involve any substantial question of law within the meaning of sub-section (4). It is needless to say that for passing such order in limine, the High Court is required to assign the reasons in support of its conclusion.

36. In the light of the foregoing discussion, we cannot sustain the impugned judgment which, in our view, does not conform to the requirements of Section 100 of the Code and hence calls for interference in this appeal.

37. The appeals thus deserve to be allowed. They are accordingly allowed. The impugned judgment is set aside. The case is remanded to the High Court for deciding the second appeal afresh on merits. The High Court will now frame proper substantial question(s) of law after hearing the appellant and if it finds that any substantial question(s) of law arises in the case, it will formulate such question(s) and accordingly hear the appeal on the question(s) framed finally in accordance with law. 18

38. We, however, make it clear that we have not applied our mind to the merits of the controversy involved in the appeals, but only formed an opinion to remand the case due to the infirmity noticed in the manner in which the second appeal was decided. The High Court will, therefore, decide the second appeal uninfluenced by any of our observations made in this order.

39. Since the matter is quite old, we request the High Court to decide the second appeal expeditiously preferable within six months from the date of receipt of this judgment.

February 19, 2018 19