Code of Civil Procedure, 1908: s. 100 – Second appeal – Power of the High Court while deciding the second appeal – Scope and ambit of – On facts, in second appeal, the High Court allowed the defendants’ appeal and set aside the plaintiffs’ suit which was decreed by the courts below – On appeal, held: Order passed by the High Court not legally sustainable – High Court admitted the second appeal by framing only one substantial question of law, that whether the first appellate court was justified in dismissing the defendants’ first appeal by taking into consideration one earlier litigation in relation to the suit land, which was not between the same parties – High Court failed to see that even if the said question was answered in defendants’ favour, yet the plaintiffs’ suit could not have been dismissed unless the High Court had further examined the main issue of ownership of the plaintiff over the suit land, which was decided by the courts below in plaintiffs’ favour – High Court having failed to frame any substantial question of law on the issue of the plaintiffs’ ownership over the suit land, had no jurisdiction to examine the said issue in its second appellate jurisdiction, in the light of s. 100(5) – Further, the High Court cursorily touched the ownership issue which, could not be done – Also both the issue of res judicata and ownership had to be examined independent of each other on their respective merits, which was not done – Thus, matter remanded to the High Court.
Allowing the appeal, the Court
HELD: 1.1 Keeping in view the scope and ambit of the powers of the High Court while deciding the second appeal, the High Court committed an error in allowing the defendants’ second appeal and further erred in dismissing the plaintiffs’ suit by answering the substantial question of law. [Para 17] [437-F-G]
1.2 Mere perusal of the impugned order would go to show that the High Court had admitted the second appeal by framing only one substantial question of law, namely, whether the first Appellate Court was justified in dismissing the defendants’ first appeal by taking into consideration one earlier litigation in relation to the suit land, which was not between the same parties. The High Court held that the first Appellate Court was not justified because the earlier litigation was not between the present plaintiffs and the defendants but it was between the different parties and, therefore, any decision rendered in such litigation would not operate as res judicata in the present litigation between the parties. This resulted in allowing of the appeal and dismissing the suit. The High Court (Single Judge), failed to see that even if the said question was answered in defendants’ favour, yet the plaintiffs’ suit could not have been dismissed much less in its entirety unless the High Court had further examined the main issue of ownership of the plaintiffs over the suit land, which was decided by the two Courts below in plaintiffs’ favour on merits. [Para 18-20] [431-H; 438-A-C]
1.3 It was necessary for the High Court to have proceeded to examine the issue relating to the plaintiffs’ title over the suit land, which was decided by the two Courts in plaintiffs’ favour holding that the plaintiffs were able to prove their title over the suit land on the basis of documentary evidence whereas the defendants failed to prove their title though asserted. [Para 21] [438-D-E]
1.4 The High Court committed another error when it failed to frame any substantial question of law on the issue of the plaintiffs’ ownership over the suit land. So long as no substantial question of law was framed, the High Court had no jurisdiction to examine the said issue in its second appellate jurisdiction. In other words, the High Court having framed only one question, which did not pertain to issue of ownership of the suit land, had no jurisdiction to examine the issue of ownership. It was not permissible in the light of Section 100 (5) CPC, which empowers the High Court to decide the appeal only on the question framed and not beyond it. [Para 22-23] [438-F-H]
1.5 The High Court could invoke its powers under proviso to sub-section (5) of Section 100 and frame one or two additional questions, as the case may be, even at the time of hearing of the second appeal. It would have enabled the High Court to examine the issue of ownership of the suit land in its correct perspective. It was, however, not done by the High Court. [Para 24] [439-A-B]
1.6 The High Court, while examining the question framed, also cursorily touched the ownership issue which, the High Court could not have done for want of framing of any substantial question of law on the ownership issue. That apart, the High Court also failed to see that the issue of res judicata and the issue of ownership were independent issues and the decision on one would not have answered the other one. In other words, both the issues had to be examined independent of each other on their respective merits. It was, however, possible only after framing of substantial questions on both the issues as provided under Section 100(4) and (5) CPC. This was, however, not done in this case. [Para 25] [439-B-D]
1.7 Since the High Court failed to examine the issue of ownership of the plaintiffs on its merits for want of framing of the substantial question(s) of law, the matter has to be remanded to the High Court for deciding the question as to whether two Courts below were right in their respective jurisdiction in holding that the plaintiffs were able to prove their title over the suit land on the basis of evidence (oral/documentary) adduced by them and, if so, whether such finding should be upheld or not. [Para 27] [439-E-F]
1.8 The impugned order is not legally sustainable and is set aside. The case is remanded to the High Court for deciding the second appeal afresh on merits in accordance with law by properly framing the substantial question(s) of law on the question of ownership of the plaintiffs over the suit land and examine as to whether the findings on the said question recorded by two Courts suffer from any error or not. [Para 28] [439-G-H]
Sanatosh Hazari v. Purushottam Tiwari (2001) 3 SCC
179 : [2001] 1 SCR 948 ; Surat Singh v. Siri Bhagwan & Ors. (2018) 4 SCC 562 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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