- JUDGEMENT SUMMARY: KRIPA RAM (DECEASED) V. SURENDRA DEO GAUR [CIVIL APPEAL NO. 8971 OF 2010]
- DATE OF JUDGEMENT: NOVEMBER 16, 2020
- JUDGES: HON’BLE JUSTICES L. NAGESWARA RAO, HEMANT GUPTA, AJAY RASTOGI
- REFERENCES: 2019 SCC ONLINE SC 1052; (2015) 16 SCC 763
- PARTIES: KRIPA RAM THROUGH LEGAL REPRESENTATIVES (APPELLANT)
- SURENDRA DEO GAUR (RESPONDENT)
SUBJECT
This case deals with the question of whether the High Courts are required to formulate any substantive questions of law in appeals preferred before them, under Section 100 of the Code of Civil Procedure, 1908.
AN OVERVIEW
1. This appeal was preferred before the Supreme Court by one of the Defendants (no. 4) against concurrent findings of three courts arising out of a suit for permanent injunction.
2. The Respondents herein had filed a suit for permanent injunction before Civil Court claiming that Khasra no. 238 measuring 4 Bighas, situated in the revenue estate of Village BasaiDarapur, Delhi (“the said land”) is owned and possessed. The Respondent/Plaintiff herein also had a decree in their favor, holding that the Respondent/Plaintiff were owners and possessors of the said land.
3. The Respondent/Plaintiff filed the suit apprehending threat to their possession of the said land by the Appellant/Defendant (no. 4), who claimed that the said land was allotted to defendant 1 to 4 therein.The trial court, after considering all the issues, decreed in favor of the Respondent/Plaintiff holding that they were in fact the owners of the said land.
4. The Appellant/Defendant preferred a first appeal which was subsequently dismissed. The Appellant/Defendant thereafter preferred a second appeal before the High Court which was also dismissed. Therefore, aggrieved by the High Court’s decision, the Appellant/Defendant has preferred this appeal before the Supreme Court contending that the High Court cannot dismiss an appeal without framing any substantial question of law, which is mandatory in terms of Section 100 CPC.
IMPORTANT PROVISIONS
Civil Procedure Code, 1908
· Section 100
Delhi Land Revenue Act, 1974
· Section 28
ISSUES
1. Can the High Court dismiss second appeal without framing substantial questions of law, which is mandatory in terms of Section 100 CPC?
2. Whether provisions of Section 28 of Delhi Land Revenue Act, 1974 bars the jurisdiction of the Civil Court in respect of boundary disputes?
ANALYSIS OF THE JUDGEMENT
1. The trial court herein had framed an issue of whether it had the jurisdiction to adjudicate the suit at first instance. After due consideration of facts, it decided that it does have the jurisdiction. After the First Appellate Court concurred with the Trial Court, the Appellant/Defendant preferred a second appeal before the High Court, where the issue regarding whether the appellatecourt could in law dispose of the appeal without deciding the preliminary issue of jurisdiction of the civil court was raised. After the High Court dismissed the appeal, the Appellant preferred an appeal before the Supreme Court.
2. The primary argument raised by the Appellants/Plaintiff was that the High Court has dismissed the appeal without framing any substantial questions of law which is mandatory in terms of Section 100 of Code of Civil Procedure, 1908 (CPC), and therefore, the matter should be remanded back to it. It was also argued that the First Appellate Court had ordered that the question of jurisdiction of Civil Court would be decided first, however the appeal was decided without dealing with the said issue, thus, causing serious prejudice to the rights of the appellants/defendant. However, in response to this, the Court held that the issue of jurisdiction was not an issue of factbut of law. Therefore, it could very well be decided by the FirstAppellate Court while taking up the entire appeal for hearing. It also held that since the trial court had also not treated the issue relating to thejurisdiction of the Civil Court as a preliminary issue, itcannot be said that any prejudice has been caused to theappellants by not deciding the issue of jurisdiction of the Civil Courtin the first instance by the First Appellate Court.
3. The Court referred to Section 100 CPC to dismiss the Appellant/Defendant’s contention. Section 100 of the CPC reads that the sub-section (1) of Section 100 of the Code contemplates that an appeal shall lie to the High Court if it is satisfied that the case involves a substantial question of law. Section 100(4) reads, “Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.” The Court observed that substantial question of law is required to be precisely stated in the memorandum of appeal and if the High Court is satisfied that such substantial question of law is involved, it is required to formulate that question. The appeal has to be heard on the question so formulated. However, the Court has the power to hear appeal on any other substantial question of law on satisfaction of the conditions laid down in the proviso of Section 100 of the Code. Therefore, if the substantial question of law framed by the appellants are found to be arising in the case,only then the High Court is required to formulate the same for consideration. The Court went on to clarify that if no such question arises, it is not necessary for the High Court to frame any substantial question of law. The formulation of substantial question of law or re-formulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law. Thus, High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court.
4. Section 100 of the CPC lays provisions for special appeal. It empowers the High Court to hear appeals from any judgment/decree in an appeal passed by a subordinate court. The High Court usually takes up the matter only if they opine that a substantial question of law exists. The onus of bringing into light the exact question of law before the High Court is on the party, by mentioning it in their memorandum of appeal. In the proceedings under this section, the respondents also given a chance to contend the existence of such a question of law. As has been mentioned previously, and has been interpreted by the Supreme Court, the High Courts are required to frame questions only if they are satisfied that a substantial question of law is involved in the case, and not otherwise.
5. The Court also rejected all the judgments relied upon by appellant/defendant, except Md. Mohammed Ali V. JagadishKalita (2004) 1 SCC 271, saying that none of them mandates the High Court to frame substantial questions of law while upholding the findings recorded by the First Appellate Court. The Court relied upon the judgment in case of Ashok RangnathMagar v. ShrikantGovindraoSangvikar, in which it had previously held that the second appeal can be dismissed without even formulating the substantial question of law.
6. As for the issue of whether provisions of Section 28 of Delhi Land Revenue Act, 1974 bars the jurisdiction of the Civil Court in respect of boundary disputes, the Court observed that the act does not expressly bar the jurisdiction of civil courts in relation to boundaries.
Section 28 provides for: “Settlement of boundary disputes—(1) All disputes regarding boundaries shall be decided by the Deputy Commissioner, as far as possible, on the basis of existingsurveymaps, but ifthisis notpossible, the boundaries shall be fixed on thebasis of actual possession. (2) Ifin the course of any inquiry into a dispute under thissection, the Deputy Commissioner is unable to satisfy himself as to which party isin possession, orif it isshown thatpossession has been obtained by wrongful dispossession ofthe lawful occupants of the property within a period of three months previous to the commencement of the inquiry,the Deputy Commissioner— (a)in the first case,shall ascertain by summary inquiry who is the person best entitled to the property, and shallputsuch person in possession; and (b)in the second case, shall put the person so dispossessed in possession and shall thenfix theboundary accordingly”
The boundary disputes are between two revenue estates and does not include the demarcation of the parties’ land.
CONCLUSION
The Supreme Court of India, while deciding this case, remained consistent with its previous judgments. Though it acknowledged that it had given a contrary judgment in case of Md. Mohammed Ali V. JagadishKalita (2004) 1 SCC 271 by asking High Court to frame substantial question of law in terms of Section 100 CPC, it clarified how the reference was different from the present case. It stayed the general rule by relying upon its judgment in Ashok RangnathMagar v. ShrikantGovindraoSangvikar to give the High Court liberty to decide if there is really any need to frame any question of law before dismissing an appeal. Contrary to the Appellant/Defendant’s view, it interpreted the Section 100 CPC to hold that it is discretion of the High Court to decide if there is need to frame any question of law before dismissing an appeal.
