Code of Civil Procedure, 1908 – Order XLII and XLI and s.100 – Suit for recovery of possession and damages – Dismissed by trial court – First Appellate Court reversed the decision, and decreed the suit – Second appeal dismissed by High Court – Challenge to – Held: The High Court, after having admitted the second appeal and having formulated substantial questions of law, could not have disposed of the same by only stating its satisfaction on the findings of the First Appellate Court without examining the relevant points arising from the submissions of the parties and without examining as to whether the First Appellate Court was justified in reversing the findings of the Trial Court – The judgment of High Court was akin to that of a summary disposal of the second appeal and that cannot be approved, because the second appeal had been admitted on specific questions – Once a second appeal is admitted, on the High Court being satisfied that a substantial question of law is involved in the case and with formulation of that question, the appeal is required to be heard in terms of Order XLII CPC – A look at Order XLII CPC makes it clear that except for the limitations envisaged by r.2 thereof read with s.100, the rules of Order XLI do apply, so far as may be, for the purpose of hearing of the second appeal, i.e., an appeal from appellate decree – A second appeal, after its admission with formulation of substantial question of law, cannot be disposed of summarily – The Court has further power to hear the appeal on any other substantial question of law if not formulated earlier for reasons to be recorded – Of course, at the time of hearing, the respondent is entitled to argue that the case does not involve the question or questions so formulated but, in the present case, there is no indication in the judgment of the High Court if the respondent even argued that the case did not involve the formulated questions or any of them – It has also not been the conclusion by the High Court that the questions so formulated were not involved in the case – That being the position, it was required of the High Court to examine the matter in necessary details and then, to determine the substantial questions of law formulated in the case – In this view of the matter, the matter is remanded for reconsideration by the High Court on the questions of law already formulated by it.
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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