Listen to this articleKirpa
Ram (Deceased) Through Legal Representatives & Ors v. Surendra Deo Gaur
& Ors.
APPEAL NO.
8971 OF 2010 decided on 16.11.2020
Bench: L. Nageswara Rao, Hemant Gupta, Ajay Rastogi JJ.
Facts: The suit proceedings between the parties herein
came up before the Supreme Court by means of the present Civil Appeal.
A suit was filed for
permanent injunction which was decreed thereafter, against the injunction order
passed by the trial court a First Appeal was preferred in which the judgment
and decree of the trial court was affirmed by the First Appellate Court.
Being aggrieved by this a
Second Appeal was filed before the High Court wherein, the High Court refused
to upset the findings of the Trial Court as well as the First Appellate Court
and affirmed both the judgments and dismissed the said Second Appeal.
The appellants raised a
preliminary argument before the Supreme Court that the High Court dismissed the
Second Appeal without framing the substantial question of law which is
mandatory requirement of Section 100 of Civil Proceure Code, 1908 (hereinafter
referred to as, “CPC”).
The Supreme Court while deciding the present Civil
Appeal held that the High Court did not
commit any illegality in not framing any substantial question of law while dismissing
the appeal filed by the appellants.
Issues: The main issues that
arose before Supreme Court was:-
a)
With regard to the aspect
that whether it was mandatory requirement under Section 100 CPC to frame
substantial questions of law while dismissing the Second Appeal?
Judgment:
The Apex Court in its judgment while taking into account
Section 100 (1) of CPC propounded on the requirements of the aforesaid Section
and observed that an appeal shall lie to the High Court if it is satisfied that
the case involves a substantial question of law and the substantial question of
law is required to be precisely stated in the memorandum of appeal. Further, it
observed that if the High Court is satisfied that such substantial question of
law is involved, then only it is required to formulate that question and 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 CPC.
Therefore, in conclusion the Supreme Court held that
if the substantial question of law framed by the appellants is found to be
arising in the case, only then in that case the High Court is required to
formulate the same for consideration and if no such question arises, then in
that case it is not necessary for the High Court to frame any substantial
question of law. The formulation of substantial question of law or
reformulation 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. The
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.
See:
Section 100 of CPC
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 shall lie to
the High Court from every decree passed in appeal by any Court subordinate to
the High Court, if the 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 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
shall formulate 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.