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2012 DIGILAW 693 (UTT)

Swami Ram Nivas Ram Sanehi v. Swami Ram Vinod

2012-11-19

V.K.BIST

body2012
Judgment V.K. Bist, J. Heard learned counsel for the parties and perused the record. 2. Mr. B.C. Pandey, learned Senior Advocate for the appellant, while arguing the appeal submitted that the findings on issued no.1 by the 1st Appellate Court are perverse in law as well as in fact and the 1st Appellate Court has failed to decide the issue no.1 in totality in terms of Order XLI Rule 31 of C.P.C. He prayed for framing of additional substantial question of law. Learned Senior Advocate for the appellant further submitted that there is sufficient pleadings in this regard in the memo of appeal as also in the substantial questions framed in the memo of appeal. He submitted that the question, which he is proposing to be framed as additional substantial question of law is essential for just and proper decision of appeal and goes to the root of the matter. Learned Senior Advocate for the appellant placed reliance on the judgments of Hon’ble the Apex Court, reported in 2005 (10) SCC 38 Manicka Poosali (dead) by Lrs. And ors. vs. Anjalai Ammal and anr., 2004 (12) SCC 189 K.G. Shivalingappa (dead) by Lrs. And ors. vs. G.S. Eswarippa and ors. and P. Cxhandrasekharan and ors. vs. S. Kanakrajan and ors. 3. Mr. B.C. Pandey, Senior Advocate submitted that normally the substantial question of law are framed by the High Court at the time of admission of appeal and High court is required to hear the appeal on the Substantial question of law so farmed. But High Court can frame any additional substantial question of law not earlier formulated by it, if the Court is satisfied that the case involves such question. 4. On the other hand, Mr. Sharad Sharma, learned Senior Advocate for the respondents opposed formulation of new substantial question of law on the ground that this cannot be done during the course of arguments. He submitted that ever since the admission of second appeal, the appellants had not pressed for formulation of any other substantial question of law till the arguments of appeal started. He, at a belated stage and in the light of the observations made by the Court, after entering into the arguments on merits requested for formulation of additional substantial question of law. He, at a belated stage and in the light of the observations made by the Court, after entering into the arguments on merits requested for formulation of additional substantial question of law. Learned Senior Advocate for the respondents submitted that Section 100 of C.P.C. deals with the formulation of substantial question of law and the burden to formulate the same is casted upon the appellant due to the embargo imposed under sub Section 3 of Section 100 C.P.C. as it castes a duty on the appellant to state the substantial question of law involved in the second appeal, use of word ‘shall’ in sub Section 3 of Section 100 C.P.C. makes it mandatory for the appellant to formulate substantial question of law at the stage when the appeal itself was being heard. He submitted that the power of High Court to formulate a substantial question of law contained under sub Section 4 of Section 100 C.P.C. would be confined with before the hearing of the second appeal starts on merits in view of the provisions contained under Order XLI Rule 12 C.P.C. Learned Senior Advocate for the respondents further submitted that under sub Section 5 of Section 100 C.P.C. the word ‘so’ refers to the substantial question of law as formulated under sub Section 3 & 4 of Section 100 of C.P.C., which contemplates formulation of substantial question before stepping into hearing of the second appeal, because the latitude of sub Section 4 is extended to the High Court for formulation of substantial question of law during the course of hearing of second appeal on substantial question of law neither pleaded by the appellant nor formulated by the High Courts under sub Section 5 of Section 100 of C.P.C. and the same could not be done once the arguments in appeal starts on merits. Learned Senior Advocate for the respondents placed reliance on the judgment of Hon’ble Apex Court reported in AIR 2001 SC 965 , AIR 1997 SC- 2517 and (2009) 2 SCC 177. 5. Learned Senior Advocate for the respondents placed reliance on the judgment of Hon’ble Apex Court reported in AIR 2001 SC 965 , AIR 1997 SC- 2517 and (2009) 2 SCC 177. 5. The main contention of learned counsel for the respondents is that once the parties to the dispute have voluntarily stepped into the final hearing, in that event, during the course of hearing, new substantial question of law cannot be formulated as it would be against the procedural mandate of the law because then the formulation of substantial question will amount to be fishing and roving. 6. I have considered the rival arguments advanced by the learned counsel for the parties and have also gone through the law cited by the parties. 7. Framing of additional substantial question of law has been discussed by Hon’ble the Supreme Court in various cases. Relevant paragraphs of few judgments are being quoted hereunder:- (i) In 2005 (10) Supreme Court Cases 38 ‘Manicka Poosali (Dead) By Lrs. And ors. vs. Anjalia Ammal and anr.’, the Hon’ble Supreme Court observed that the second appeal can be heard on questions so formulated or any additional substantial question of law which may be framed lateron, if the Court is satisfied that the case involves such question. Relevant portion of paragraph-19 is being reproduced hereunder:- “19. --------- No substantial question of law was framed at the time of admission of the appeal or at the subsequent stage regarding the due execution and the validity of the settlement deed and the Will. The High Court could not go into the questions which had not been raised by the respondents either in their pleadings or in the evidence or in the memorandum of grounds of second appeal. Jurisdiction of the High court under Section 100 CPC is limited to a substantial question of law framed at the time of admission of the appeal or at a subsequent stage if the High Court is satisfied that such a question or law arises from the facts found by the courts below. ------------ As has been pointed out earlier in sub-section (3) of Section 100 the person preferring the second appeal is required to precisely state the substantial question of law involved in the case and the High Court being satisfied that a substantial question of law is involved in the case shall formulate the said question. ------------ As has been pointed out earlier in sub-section (3) of Section 100 the person preferring the second appeal is required to precisely state the substantial question of law involved in the case and the High Court being satisfied that a substantial question of law is involved in the case shall formulate the said question. The appeal can be heard on the questions so formulated or on any additional substantial question of law which may be framed lateron if the Court is satisfied that the case involves such question. -----------” (ii) In 2009 (2) SCC 177, ‘U.R. Virupakshappa vs. Sarvamangala and another’ the Hon’ble Supreme Court has observed that the High Court should not ordinarily frame a substantial question of law at a subsequent stage without assigning any reason therefor and without giving a reasonable opportunity of hearing to the respondent. Paragraph 15, 16, 17 and 18 of this judgment are being reproduced as under:- “15. The Code of Civil Procedure was amended in the year 1976 by reason of the Code of Civil Procedure (Amendment) Act, 1976. In terms of the said amendment, it is now essential for the High Court to formulate a substantial question of law. The judgments of the trial Court and the first appellate Court can be interfered with only upon formulation of a substantial question of law, if any, which has arisen for its consideration by the High Court. It, furthermore, should not ordinarily frame a substantial question of law at a subsequent state without assigning any reason therefor and without giving a reasonable opportunity of hearing to the respondents. 16. The High Court, in this case, however, formulated a substantial question of law while dictating the judgment in open Court. Before such a substantial question of law could be formulated, the parties should have been put to notice. They should have been given an opportunity to meet the same. Although the Court has the requisite jurisdiction to formulate a substantial question of law at a subsequent stage which was not formulated at the time of admission of the second appeal but the requirements laid down in the proviso appended to Section 100 of the Code of Civil Procedure were required to be met. 17. The High Court did not record any reason for formulating the additional question. 17. The High Court did not record any reason for formulating the additional question. The prayer of the appellant to grant some time to deal with the said question was declined. The High Court failed to take into consideration the fact that by framing the additional substantial question of law, a new case is sought to be made out. 18. The principal contention raised on behalf of respondent-defendants, in their written statement, as noticed hereinbefore, was non-existence of any relationship between the parties. We, however, do not mean to suggest that the defendants cannot raise inconsistent pleas but the same should have been kept in mind by the High Court. It might or might not have been possible for the High Court to consider the question of law raised on the basis of the facts found by the Courts below, but, indisputably, the High court without recording sufficient reasons, could not allow the appellant (sic before it) to raise absolutely a new contention which was beyond the pleadings of the parties.” (iii) In AIR 2001 Supreme Court 965, Santosh Hazari vs. Purushottam Tiwari, the Hon’ble Supreme Court has held power of High Court to hear appeal on any other substantial question of law so long as it is satisfied that the case involves the question and records its reasons for such satisfaction. Paragraph 10 of the judgment is reproduced below:- “At the very outset we may point out that the memo of second appeal filed by the plaintiff-appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal by only on ‘substantial question of law involved in the case’. An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High court arises as involved in the case and is substantial in nature. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High court feels satisfied that the case involves such question and (ii) the High Court records reasons for its such satisfaction.” (iv) In the matter of K.G. Shivalingappa (Dead) By Lrs. & others vs. G.S. Eswarappa and others- (2004) 12 SCC 189 , the Hon’ble Supreme Court has held that second appeal can be heard on subsequent question of law framed at the time of arguments. Paragraph 12 of the judgment is quoted below: “12. In regular second appeal the High Court can interfere with the concurrent findings recorded by the courts below only on the substantial question of law either framed at the time of admission of appeal or reframed or substituted later on at the time of arguments. Learned Single Judge without adverting to the other findings recorded by the first appellate court (to which a reference has been made) has set aside the entire judgment and decree on the wrong presumption and premise that the fate of the appeal was dependent only on the fact as to whether the partition deed of 1916 was required to be registered or not.” 8. It is true that normally the second appeal should be heard on the substantial question of law formulated by the Court at the time of admission of second appeal, but if at the subsequent stage it appears to the Court that additional substantial question of law is required to be framed for just decision in the matter, the Court can formulate such substantial question of law at any stage. The Hon’ble Apex Court in a catena of judgments has observed that additional substantial question of law can be framed at any stage. The only thing which is to be seen by the Court is that the case involves such substantial question of law. But, before framing of such substantial question of law, the Court is required to record reasons for such satisfaction. High Court is not bound to confine itself in dealing only with the questions formulated at the time of admission of the second appeal. It can formulate additional substantial question of law at any stage, even at the stage of hearing of the second appeal. Most important thing is the satisfaction of the High Court. In the present case, the Lower Appellate Court set-aside the judgment of the trial Court without reversing the findings given by the trial Court. By reading the judgment, I find it necessary to frame additional substantial question of law regarding non-compliance of Order XLI Rule 31 C.P.C., therefore, following additional substantial question of law is framed:- “3. Whether the Lower Appellate Court failed to adjudicate upon the appeal in accordance with Order XLI Rule 31 of Code of Civil Procedure, 1908?” 9. Post this appeal for final hearing on 6th December, 2012 in daily cause list.