[2016] 3 S.C.R. 11

RAGHAVENDRA SWAMY MUTT

UTTARADI MUTT

(Civil Appeal No.3190of2016)

MARCH 30, 2016

(DIPAK MISRA AND SHIVA KIRTI SINGH, JJ.]

Code of Civil Procedure, 1908 - ss. 100, 96; Or. XL!, r 5(3), Or. XLJ!, r 1, 2 - Second appeal - Formulation of substantial question of law - On facts, the High Court not admitting second appeal as no substantial question of law formulated and vacated the interi111 order passed in IA - Whether the High Court could entertain IA seeking interim relief - Held: High Court cannot ad111it a second appeal without examining whether it raises any substantial question of law for admission and thereafte1; it is obliged to for111ulate the substantial question of law - Solely because the Court has the iurisdiction to pass an ex parte order, it does not e111power it not to formulate the substantial question of law for the purpose of admission, defer the date of admission and pass an order of stay or grant an interim relief - It is not the sche111e of CPC after its amendment in 1976 - Thus, the High Court rectified its mistake by vacating the order passed in IA and was the correct approach adopted by the High Court.

Dismissing the appeal, the Court

HELD: 1.1 In the instant ease, the High Court has not yet admitted the matter. It is not in dispute that no substantial question of law has been formulated as it could not have been when the appeal has not been admitted. As appeal under Section 100 CPC is required to be admitted only on substantial question/questions of law. It cannot be formal admission like an appeal under Section 96 CPC. That is the fundamental imperative. It is peremptory in character, and that makes the principle absolutely cardinal. [Para

18) [19-D) 1.2 For passing an ex parte order, the Court has to keep in mind the postulates provided under sub-rule (3) of Rule 5 of Order XLI. The Court is obligated to keep in view the language employed under Section 100 CPC. It is because formulation of substantial question of law enables the High Court to entertain

A an appeal and thereafter proeeed to pass an order. The Court has the jurisdiction to pass an interim order subject to the language employed in Order XLI. Rule si3). It is clear that the High Court cannot admit a second appeal without examining whether it raises any substa'ntial question of law for admission and thereafter, it is B obliged to .formulate the substantial question oflaw. Solely because . . the Court has the jurisdiction to pass an ex parte order, it does ... .µot .empower it 11ot.to formulate the substantial question of law

~' : for tli~ ptjrp_tie of amission, defe'r the date of admission and .... pass 1, m 9rd~~ .. ()(ty :or.grn11Umi.11, terim relief. That is not the

,'.".schirie. 6f CP.Caffr 'its aiherl'd.i:Ileritin 1976 and that is not the C tenor of precedents of this Court'and it has been clearly so stated in Ram Plia/ case •. Therefore, the High Court has rectified its . mistake by vacating the order passed in IA and it is the correct approach adopted by the High Court. Thus, the impugned order is absolutely impregnable. [Para 23) [21-G-H; 22-A-C]

1.3 The iiigh Court is requested to take up the second appeal for admission and, if it finds that there is a substantial question of law involved, proceed accordingly and deal with IA as required in law. The interim order passed by this Court on earlier occasion should not be construed as an expression of any opinion from any count. It was a pure and simple ml interim arrangement. [Para

24) [22-D-E)

A. Venkatasubbiah Naidu v. S. Chellappan & Others AIR 2000 SC 3032 : 2000 (3) Suppl. SCR 303; Ram Phal v. Banarasi & Ors. (2003) 11 SCC 762; !shwar Dass Jain v. Sohan Lal 1999 (5) Suppl. SCR 24 : (2000) 1 SCC 434; Roop Sinf;{h v. Ram Sinf;{h 2000 (2) SCR 605 : (2000) 3 SCC 708; Municipal Committee, Hoshiarpur v. Punjab SEE & Others 2010 (13) SCR 658 : (2010) 13 SCC 216; Umerkhan v. Bismillabi alias Babula! Shaikh and Others 2011 (9) SCR 551 : (2011) 9 sec 684 - referred to.

Case Law Reference 2000 (3) Suppl. SCR 303

(2003) 11 sec 762

1999 (5) Suppl. SCR 24

20QQ (2) SCR 605

referred to referred to

referred to referred to

Para 6 Para 11 Para 14 Para 15

- . . : '

2010 (13) SCR 658

21)11 (9) SCR 551

" . rt'ferred to

referred o

Para 16

Para i7

>I.' l ,. ;

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3190 of 2016.

From the Judgment and Order dated 11.02.2016 of the High Court of Karnataka at Dharwad Bench in I. A. No. 1 of2016 in R. S. A. No.

I 00446of2015.

R. Venkataramani, Sr. Adv., A. Radhakrishnan, Aljo K. Joseph, Advs. for the Appellant.

Gaurav Agrawal, Adv. for the Respondent.

The Judgment of the Court was delivered by

DIP AK MISRA, J. I. The present appeal, by special leave, assails the order dated 11.02.2016 passed by the learned Single Judge of the High Court of Karnataka at Dharwad in I.A. No. I of 2016 in RSA No. I 00446 of 2015 whereby he has vacated the interim order dated 16.12.2015 passed in I.A. No.I of2015.

2. The facts for the purpose of adjudication of the present appeal need to be stated in brief. The respondent, Uttaradi Mutt, filed 0.S.

No.19311992 in the Court of Civil Judge, Koppa! but in due course the said suit was transferred to the Court of Additional Civil Judge, Gangavati and was registered as O.S. No. 74/2010. The suit was filed by the plaintiffrespondent for the relief(s) for perpetual injunction for restraining the . defendant-Mutt, its agents, servants, devotees1 etc., from entering upon the suit schedule property or interfering with its possession and enjoyment of the suit property and/or interfering or disturbing with the performance of annual "Aradhana" of His Holiness Sri Padmanabha Teertharu, Sri Kavindra Teertharu and Sri Vageesha Teertharu. The suit preferred by the plaintiff was dismissed.

3. The judgment and decree passed in the suit was assailed before

the Principal Civil Judge, Senior Division, Gangavati and eventually by virtue of the order pass!!d by this Court in Special Leave Petition (Civil) . G No. 20346of2014, it stood transferred to the Court of Civil Judge, Senior

Division, Dharwad and numbered as R.A. No.123/2014. The first appellate Court allowed the appeal in part. The appellate Court restrained the present appellant from interfering with the plaintiff/respondent Mutt's possession and enjoyment of suit property subject to the right of the H

defendant Mutt to perform Adradhanas and Poojas of the Vrindavanas at Navavrindavanagatti.

4.After the appeal was disposed of, the respondent filed execution petition, E.P. No.122/2015 before the Principal Civil Judge, Junior Division, Gangavati. The executing court passed certain orders on I 0.12.2015.

Jn the meantime, the appellant, being grieved by the order in the Regular Appeal, had preferred RSA No.100446/2015. As the order passed by the executing court affected certain rights of the appellant, it filed IA No. l of2015 seeking temporary injunction against the respondent. Be it stated, the respondent had filed a caveat which was defective but it was allowed to represent through the counsel when the IA No. I of2015 was argued. As is discernible from the narration of facts, the executing court had directed the Deputy Superintendent of Police, Gangavati to give police protection to the decree-holder for possession and enjoyment of the suit scheduled property and preventing the judgment-debtor from trespassing into the suit property violating the decree in RA No.123/ 2014.

5. When the matter stood thus, IA No. I of 2015 was taken up by the High Court. The learned Single Judge, while considering the interlocutory application for injunction, passed the following order:-

"List this matter on 20.01.2016 for filing of objections to I.A. I/ 2015 and 2/15. In the meanwhile, registry to secure the LCR from both the courts below. The same should reach this cowi on or before 16.01.2016. However, it is made clear that the appellant, who is defendant in O.S., and respondent who is plaintiff in the O.S., shall have their right to perform pooja on regular basis without staking claim with respect to disputed land, which shall be subject to out come of this appeal."

6. As is manifest, the respondent filed objections to I.A. No. I/ 2015 and also filed I.A. No.1/2016 for vacation of the interim order.

I.A. No.1/2016 was taken up by the learned Single Judge who referred G to Order XXXIX Rule 3-A of the Code of Civil Procedure (CPC), the authority in A. Venkatasubbiall Naidu v. S. Cllel/appan & otllers1, noted the contentions advanced by the learned counsel for the parties, adverted to the litigations that had been taken recourse to by both sides, acquainted itself with the earlier order passed by the High Court and

I AIR 2000 SC 3032

came to hold thus :-

"On a reading of the aforesaid order it becomes clear that the interim application filed by the appellant along with the appeal before this Court had to be considered independently and on its own merits. But, in the instant case what has happened is that this Court, without issuing notice to the respondent in the second appeal has granted an interim order which is to be in operation till the end of the appeal. It is not known as to whether the appellant had satisfied the Court on any substantial question of law that would arise in the matter as the matter was listed for admission."

7. After so stating, the High Court opined that the principle tated in Order XXXIX Rule 3 had not been followed, notice to the respondent had not been issued although permission was granted to the counsel to raise objections and further delved into the distinction between an appeal under Section 100 CPC and the regular first appeal, and in the ultimate eventuate, concluded thus:-

"If notice to respondent was to be dispensed with prior to grant of an ad interim order till the conclusion of the second appeal then reasons for doing so had to be recorded. But the interim order which is sought to be vacated is bereft of any reason. I am of the view that on this short ground alone order dated 16.12.2015 has to be vacated as there are procedural irregularities in the grant of the ad interim order. Secondly, it is also not known at this point of time as to whether, the order passed by this Court in M.F.A. no.21690/2012 was brought to the notice of this Court by the appellant or not before the interim order was passed.

In view of the above, the application I.A. no.1/2016 for vacating interim order dated 16.12.2015 is allowed. Order dated 16.12.2015 stands vacated. The appellant to seek any date for admission of the matter and after hearing learned counsel for the appellant on admission of the appeal, this Court to consider I.A. no.1/2015 afresh. All contentions on both sides on I.A. No. I /2015 are kept open."

8. When the matter was taken up on 18.03.2016, this Court, after hearing the learned counsel for the parties, had passed the following order:-

"Having heard learned counsel for the parties, as an interim H

measure, it is directed that the petitioner, Sri Raghavendra Swamy Mutt, is permitted to do 'aradhana' from .24'h to 26'" March, 2016 and not a day prior to that or beyond that. Needless to say; no equity shall be claimed by the petitioner on the basis of this order.

That apart, the present arrangement shall be restricted to this occasion only." ·

9. We had, at that time, blissfully perceived being under the in::ipression that '"Aradhaila" is a yearly even.t, that request to the High . court to dispose of the second appeal could sub-ser¥e the cause or justicej but the learned counsel for the parties apprised us that it is a . monthly affair. Ergo, we have heard Dr. Raj iv Dhawan and Mr. R.

C Venkataramani, learned.senior counsel for the appellant and Mr. Fali S.

Nari man, learned senior counsel for the respondent.

10. It is submitted by Dr. Dhawan and Mr. Venkataramani, learned senior counsel, that.the High Court was not justified in vacating the order of stay on the grounds it hs:done, for the principle of Order X:XXIX D Rule 3-A is no~ applicable when the appelfanfhad prayed for stay and passing of interim or,;!ers, It is prged by them that the respondent had entered caveat whih was defective in nature but it had participated in the hearing and, therefore, the interim order could not be regarded as an ex parle order. Learned senior counsel appearing for the appellant would E further submit that when the judgment and decree'passed in the regufar appeahs demonsfnibly unsustainable, the High Court should have mairitained the .order of stay and finally disposed of I.A. No.1/2015 and

._ . shooldnot have entertained I.A. No.1/2016 seeking vacation of the order ··· f~y. It.has been.highlighted that the language employed in Section · 100.CPC though stipulates that appeaHs to be entertained on substantial F ' . question of law involved in the case, it does not bar the High Court to

pass ari ad interini'order in a grave sittiation.and that is the basic purport of Order .XLI Jlul~ 5 nd Order XL!! CPC. ·

 . I I.Combating the aforesaid submi.ssions, it is l!rged by Mr. Nari man., . ·. !a~1ed senior counsl appearin~ for th~ respondent tl)at the interim order G .. pased o, Y the.HighCourt i1i°r'.A. No.1/2015 from all angles is an ex

. parte:ordr, for adjournment was sought on behalf of respondent to argue the matter but the same; was declrned. Learned seniorcounsel would proponethat passing an orderof stay cir issi1ing an order ofinjunCtion in a second appeal is quite different than an interiin order passed in a H regular first appeal preferred under Section 96 CPC. ft is canvassed by

him that formulation of substantial question of law by the Court under Section 100 CPC is an imperative to proceed with the appeal and the Court cannot proceed unless the condition precedent is satisfied and in such a situation, the question of passing any interim order or granting any interim relief does not arise. Mr. Nariman has drawn support from a two-Judge Bench d~Cision in R"m Pim/ v. Ban"rasi & Ors.' ..

12. To appreciate the controversy, it is seemly to refer to Section I 00 CPC. It reads as follows:-

"Section 100. Second appeal.-

( 1) Save as otherwise expressly provided in the body of this Code or by any; other.liiw.forthe 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, ifthe 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 oflaw involved in the appeal.

(4) Where the High Co.l)rt is satisfied that a substantial question oflaw is involved in, any case, it shall f9rmulate 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."

13. Section 10 l CPC reads as under:- ·

"Si:cti0:n 101. Second appea~ on no other grounds.-,-No ' ... second appeal shall lie except on the grohnd mentioned in section

100." ·., .. 1. :i,; •.•. ·,

2 (2003J 11 sec 762.

14. A plain reading of Section 100 CPC makes it explicit that the High Court can entertain a second appeal if it is satisfied that the appeal involves a substantial question of law. More than a decade and a half back, in ls/1War Dass Jain v. Solum LaP it has been ruled that 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 judgment of the first appellate cou1i without doing so.

15. In Rogp Sinxh v. Ram Sinxh" the Comi had to say thus:-

"lt is to be reiterated that under Section 100 CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 CPC."

16. In Municipal Committee, Hoshiarpur v. Punjab SEB & Otllers5 it has been categorically laid down that the existence of a substantial question of law is a condition precedent for entertaining the second appeal and on failure to do so, the judgment rendered by the High Court is unsustainable. It has been clearly stated that existence of a substantial question of law is the sine qua 11011 for the exercise of jurisdiction under the provisions of Section l 00 CPC.

17. In Umerklum v. Bismil/abi alias Babula/ Shaikh mu/ others6

a two-Judge Bench was constrained to ingeminate the legal position thus:-

"In our view, the very jurisdiction of the High Court in hearing a second appeal is founded on the formulation of a substantial question of law. The judgment of the High Court is rendered patently illegal, ifa second appeal is heard and judgment and decree appealed against is reversed without formulating a substantial question oflaw. The second appellate jurisdiction of the High Court under Section 100 is not akin to the appellate jurisdiction under Section 96 of the Code; it is restricted to such substantial question or questions of law that may arise from the judgment and decree ---- 3(2000) 1sec434 • (2000) 3 sec 708 '(2010) 13 sec 216 • (2011) 9 sec 684

appealed against. As a matter of law, a second appeal is entertainable by the High Court only upon its satisfaction that a substantial question of law is involved in the matter and its formulation thereof. Section I 00 of the Code provides that the second appeal shall be heard on the question so formulated. It is, however, open to the High Court to reframe substantial question of law or frame substantial question of law afresh or hold that no substantial question of law is involved at the time of hearing the second appeal but reversal of the judgment and decree passed in appeal by a court subordinate to it in exercise of jurisdiction under Section 100 of the Code is impermissible without formulating substantial question of law and a decision on such question."

18. In the instant case, the High Court has not yet admitted the matter. It is not in dispute that no substantial question of law has been formulated as it could not have been when the appeal has not been admitted. We say so, as appeal under Section 100 CPC is required to be admitted only on substantial question/questions of law. It cannot be formal admission like an appeal under Section 96 CPC. That is the fundamental imperative. It is peremptory in character, and that makes the principle absolutely cardinal. The issue that arises for consideration is; whether the High Court without admitting the second appeal could have entertained IA No. 1/2015 which was tiled seeking interim relief. In Ram Plwl (supra), from which Mr. Nariman, learned senior counsel has drawn immense inspiration, the two-Judge Bench was dealing with a case where the High Court had granted an interim order by staying the execution of the decree but had not framed the substantial question of law. In that context, the Court held:-

" ... However, the High Court granted interim order by staying the execution of the decree. It is against the said order granting interim relief the respondent in the second appeal has preferred this appeal. This Court, on a number of occasions, has repeatedly held that the High Court acquires jurisdiction to decide the second appeal or deal with the second appeal on merits only when it frames a substantial question of law as required to be framed under Section 100 of the Civil Procedure Code. In the present case, what we find is that the High Comt granted interim order and thereafter fixed the matter for framing of question of law on a subsequent date. This was not the way to deal with the matter as contemplated under Section 100 CPC. The High Court is

.. A required to frame the question of law first and thereafter deal with the matter. Since the High Court dealt With the matter contrary to the mandate ensh1:ined under Section 100 CPC, the impugned order deserves to be set aside."

19. To meetthe reasoning in the aforequoted passage, Dr. Dhawan B and Mr. Venkatarama11i with resoJute perseverance submitted that the. decision in Ram Plwl (supra) is distinguishable as it does not take note of Order XL! Rule 5 and Order XLII Rule 1 CPC. ·

20. Order XL! Rule 5 reads as follows:- ·.

"5. Stay by appellate court.-( 1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from . except so far as the appellate court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the appellate court may for sufficient cause order stay of execution of sue~ decree.

Explanation : An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the court of first fostance, but an affidavit sworn by the appel !ant, based on his personal knowledge, stating that an order for the stay of execution of tlie decree has been made by the Appellate Court shall, pending the receipt from d1e f\ppella.te Court. of the order for the stay of execution or any ' order to the contrary, be actedupon by the court of first instanc.e.

(2)S't(ly by our( w/1h; li p, asse.d the decree.~Where an application is made for stay of execution of an appeal able decree before the expiration of the.time allowed for appealing therefrom, the court•which passed the decree may on.sufficient cause being shown order the execution to be stayed.

(3) No order for stay of execution shall be made under sub-rule ( 1) or sub-rule (2) unless the court making it is satisfied- . ' ' ,

(a) that substantial loss may i"esult to the party applying for stay of execution unless the order is made;

 (b) that the application has been made without unreasonable delay; and

(c) that security has been given by.theapplicant .for the due

.· ..

RAGHAVENDRA SWAMY MUTT v. UTTARADI MUTT 21

[DIPAK MISRA, J.]

performance of such decree or .order as may ultimately be binding A upon him.

(4) Subject to the provisions of sub-rule (3), the court may make an ex parte order for stay of execution pending the hearing of the application.

(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of Rule I, the court shall not make an . order staying the execution of the deeree.,,

21. Order XLII Rule I that occurs under the Heading "Appeals From Appellate Decrees" is as follows:-

"1. Procedure.- The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees.

22. In this context, it is useful to refer to Order XLII Rule 2 which has been inserted .PY Act 104of1976 with effect from 01.02.1977. It provides as under:-.

"2. Power of court to direct that the appeal be heard on the question formulated by it.-. At the time of making an order under rule. 11 of Order XLI for the hearing of a second appeal, the court shall formulate the substantial question oflaw as required by section I 00, and in doing so, the court may direct that the second appeal be heard.on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the court, given in accordance with the provision of section I 00." . .

23. Submission of the learned senior counsel for the appellant is that Order XLI Rule 5 confers jurisdiction on the High Court while dealing with an appeal under Section 100 CPC to pass an ex parte order and such an order can be passed deferring formulation of question of law in grave situations. Be it stated, for passing an ex parte order the Court has to keep in mind the postulates provided under sub-rule (3) of Rule 5 of Order .XLI. It has to be made clear that the Court for the purpose of passing an ex parte order is obligated to keep in view the language employed under Section 100 CPC. It is because formulation of substantial question of law enables the High Court to entertain an appeal and thereafter proceed to pass an order and at that juncture, needless to say,

the Court has the jurisdiction to pass an interim order subject to the language employed in Order XL! Rule 5(3). It is clear as day that the High Court cannot admit a second appeal without examining whether it raises any substantial question of law for admission and thereafter, it is obliged to formulate the substantial question of law. Solely because the Court has the jurisdiction to pass an ex parle order, it does not empower it not to formulate the substantial question of law for the purpose of admission, defer the date of admission and pass an order of stay or grant an interim relief. That is not the scheme ofCPC after its amendment in 1976 and that is not the tenor of precedents of this Court and it has been clearly so stated in Ram Plwl (supra). Therefore, the High Court has rectified its mistake by vacating the order passed in IA No. I /2015 and it is the correct approach adopted by the High Court. Thus, the impugned order is absolutely impregnable.

24. Having so concluded, we would have proceeded to record dismissal of the appeal. But in the obtaining facts and circumstances, we request the High Court to take up the second appeal for admission and, if it finds that there is a substantial question of law involved, proceed accordingly and deal with IA No. I /2015 as required in law. Needless to say, the interim order passed by this Court on earlier occasion should not be construed as an expression of any opinion from any count. It was a pure and sirr.iple ad interim arrangement.

25. Resultantly, the appeal, being sans substance, stands dismissed with no order as to costs.

Nidhi Jain Appeal dismissed.