[2009] 4 S.C.R. 505

RAMESHWAR DAYAL MANGALA @ RAMESH CHAND A V.

HARISH CHAND & ANR.

Civil Appeal Nos.1694-1695 of 2009

MARCH 18, 2009 B

(DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY,

JJ)

Code of civil procedure, 1908:

s. 100 - Second appeal - Decided by High Court without c formulating a substantial question of law and without hearing it on such question - Matter remitted to High Court for decision in accordance with Jaw.

The instant appeals were filed challenging the decision of the High Court deciding a second appeal, D arising out of a decree for mandatory injunction, without formulating any substantial question of law or hearing the appeal on such question.

Allowing the appeals and remitting the matter to the E High Court, the Court

HELD: A perusal of the judgment passed by the High Court does not show that any substantial question of law - has been formulated or that the second appeal was heard on any such question. That being so, the judgment of the F High Court cannot be maintained, and is set aside. The High Court would proceed in the matter in accordance with law and in terms of observations made in the judgment of this Court. [para 5] (508-D-E]

.; /shwar Dass Jain v. Sohan Lal 2000 (1) 5CC 434 and G Roop Singh v. Ram Singh 2000 (3) SCC 708 - relied on.

Kanhaiyalal and Ors. v. Anupkumar and Ors. 2003 (1) SCC 430; Mathakala Krishnaiah v. V Rajagopal 2004 (10)

505 H

A 5CC 676; Smt. Ram Sakhi Devi v. Chhatra Devi & Ors. JT .. 2005 (6) SC 167; Sasikumar & Ors. v Kunnath Che/Japan Nair & Ors. 2005 (12) SCC 588; Gian Dass v. The Gram Panchayat Village Sunner Kalan & Ors. 2006 (6) 5CC 271;

Shah Mansukhlal Chhaganlal (d) through Lrs. v. Gohil

B Amarsing Govindbhai (d) through Lrs. 2006 (13) SCALE 99 - referred to.

Case Law Reference

2000 (1) sec 434 relied on para 6 c 2000 (3) sec 108 relied on para 7

2003 (1) sec 430 referred to para 8

2004 (10) sec 676 referred to para 8

JT 200S (6) SC 167 referred to para 8

2oos (12) sec S88 referred to para 8

2006 (6) sec 211 referred to para 8

2006 (13) SCALE 99 referred to para 8

E CIVILAPPELATE JURISDICTION :Civil Appeal Nos.1694- 1695 of 2009

From the Judgement and Order dated 25.03.2008/ 28.05.08 of the Hon'ble High Court of Punjab & Haryana at - F Chandigarh in R.S.A. No. 3067of1985 & Cross Objection No. 25-C of 2006 and in Review Petition No. 30-C of 2008 in RSA.

No. 3067 of 1985 and Cross Objection No. 25-C of 2006.

Parmanand Gaur, for the Appellant.

G Manoj Swarup, Akshat Goel, Ajay Kumar, for the Respondents. ..

The Judgement of the Court was delivered by

DR. ARIJIT PASAYAT, J.

1. Leave granted.

RAMESHWAR DAYAL MANGALA@ RAMESH CHAND 507

V. HARISH CHAND & ANR. [DR. ARIJIT PASAYAT, J.]

2. These appeals are directed against the judgment of a A learned Single Judge of the Punjab and Haryana High Court disposing of an appeal filed under Section 100 of the Code of

Civil Procedure, 1908 (in short 'CPC').

3. The respondent as plaintiff has filed a suit for mandatory injunction. The appelant filed written statement refuting the 8

assertions by the plaintiff. Replication was filed by the respondent. The trial court framed 11 issues and learned Subordinate Judge, 1st class, Palwal, decided issue nos. 1, 2 and 10 in favour of the respondent decreeing the suit in mandatory injunction. An appeal was preferred by the appelant C which was decided by learned Additional District Judge, Faridabad, and was alowed. Questioning the judgment and decree passed by the First Appel ate Court, second appeal was filed which was alowed by the impugned judgment. It is to be noted that cross objection was also filed in terms of Order 41 D Rule 22 CPC. Though many points have been urged in support of the appeal, the primary stand is that the second appeal was alowed -without formulating any substantial question of law.

Learned counsel for the respondent submitted that though question of law was not formulated, after analysing evidence E and applicable principles of law the High Court has a lowed this appeal.

4. Section 100 of CPC deals with "Second Appeal". The provision reads as folows: F

"Section 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 shal lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court G is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appelate decree passed ex parte.

(3) In an appeal under this Section, the memorandum of appeal shal 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 shal formulate that question.

(5) The appeal shal be heard on the question so formulated and the respondent shal, at the hearing of the appeal .. be alowed to argue that the case does not involve such question:

Provided that nothing take away or abridge the power of the question of law, not formulated by it, if it is satisfied that the case involves such question."

5. A perusal of the impugned judgment passed by the High Court does not show that any substantial question of law has been formulated or that the second appeal was heard on the question, if any, so formulated. That being so, the judgment cannot be maintained, which is set aside and remitted back to the High Court for proceeding in the matter in accordance with law and in terms of observations made herein.

6. In lshwar Dass Jain v. Sohan Lal (2000 (1) SCC 434), this Court in para 10, has stated thus:

"10. Now under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the doing so."

7. Yet again in Roop Singh v. Ram Singh (2000 (3) SCC 708), this Court has expressed that the jurisdiction of a High Court is confined to appeals involving substantial question of law. Para 7 of the said judgment reads:

"7. It is to be reiterated that under Section 100 CPC of the High Court to t:::ntertain a second appeal is confined only to such appeal~ which involve a substantial question of

RAMESHWAR DAYAL MANGALA@ RAMESH CHAND 509

V. HARISH CHAND & ANR. [DR. ARIJIT PASAYAT, J.]

"' law and it does not confer any jurisdiction on the High A Court to interfere with pure questions of fact while exercising its jurisdiction under section 100 CPC."

8. The position has been reiterated in Kanhaiyalal and Ors.

v. Anupkumar and Ors. (2003 (1) SCC 430), Mathakala Krishnaiah v. V. Rajagopal (2004 (10) 5CC 676), Smt. Ram 8

Sakhi Devi v. Chhatra Devi & Ors. (JT 2005 (6) SC 167), Sasikumar & Ors. v. Kunnath Chelapan Nair & Ors. (2005 (12) SCC 588), Gian Dass v. The Gram Panchayat Vilage Sunner Kalan & Ors. (2006 (6) 5CC 271 ), Shah Mansukhlal Chhaganlal

(d) through Lrs. v. Gohil Amarsing Govindbhai (d) through Lrs. C

(2006 (13) SCALE 99).

9. The appeals are alowed and the impugned order is set aside. The matter is remitted to the High Court to rehear the Second Appeal, keeping in view the position in law set out D above. There wil be no order as to costs.

R.P.

Appeals allowed.