Nazir Mohamed v. J. Kamala And Ors.
CIVIL APPEAL NOS. 2843-2844 OF 2010 decided on 27.08.2020
Bench :Naveen Sinha and Indira Banerjee, JJ
In this case, the Plaintiff filed a suit seeking declaration of title to the suit property and recovery of possession of the same from the Defendant.
The First appellate Court allowed the appeal and held that the plaintiff is entitled to only half portion of the suit premises but is not entitled to recovery of possession, since the defendant has been enjoying the suit property for a long time.
Allowing the second appeal filed by the Plaintiff, the High Court framed ‘question of law’ instead of ‘substantial question of law’ and held that the Plaintiff was entitled to delivery of possession of half portion of the suit property, after identifying the same with the help of an Advocate Commissioner, at the time of the execution of the decree.
Whether the High Court while deciding Second appeal can proceed framing ‘question of law’ rather than ‘substantial question of law’?
The Supreme Court held that the judgement and order of the High Court under Appeal should discuss or decide ‘substantial question of law’ and not any ‘question of law’ involved in the case. Furthermore, it was held by the Court that a second appeal unlike first appeal is not a matter of right and it only lies on a substantial question of law.
The Supreme Court said that appeal being the creature of statute lies only if statute confers a right of appeal, the Court by its order cannot expand the scope of the appeal.
The Court explaining the term “substantial” said that a question of law qualifies to be ‘substantial’ if it is debatable; not previously settled by the law of the land and does not have any binding precedent. Apart from this, it must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.