Code of Civil Procedure, 1908 – s.100 – Second appeal – Appellant-plaintiff filed suit for declaration of his right, title and interest in the suit land, for confirmation of his possession over the suit land and lastly for permanent injunction – Suit dismissed by the Trial Court – Aggrieved, plaintiff filed first appeal, which was allowed – In second appeal, High Court set aside the judgment of first appellate Court and restored the judgment of the Trial Court – On appeal, held: High Court though admitted the defendant’s second appeal by framing six substantial questions of law for its hearing but none of the substantial questions were answered – Instead, High Court discussed all other issues, which were not the subject matter of the six questions framed – s.100(5) CPC provides that the second appeal shall be heard only on the substantial question(s) of law framed by the High Court u/s.100(4) of the Code – Thus, case remanded to the High Court for deciding second appeal afresh.
Allowing the appeal, the Court
HELD: 1. The High Court though admitted the second appeal by framing six substantial questions of law but did not answer any of them on merits and instead went into discussion on all other issues, which were not the subject matter of the six questions framed and allowed the second appeal as if it was deciding the first appeal. [Para 11][152-H; 153-A]
2. Section 100 (5) of the Code of Civil Procedure, 1908, in express terms, provides that the second appeal shall be heard only on the substantial question(s) of law framed by the High Court under Section 100 (4) of the Code. Therefore, the High Court has to confine its inquiry to the question(s) framed and not beyond it. [Para 12][153-A-B]
3. The proviso to sub-section (5) of Section 100 of the Code also enables the respondent to raise a plea at the time of hearing that the questions framed either do not arise in the case or the questions framed are not the substantial questions of law. At the same time, the High Court has the jurisdiction to frame any additional question(s) of law but this the High Court can do by assigning the reasons. [Para 13][153-C]
4. Since the High Court failed to answer the six questions either way on their respective merits and yet proceeded to allow the second appeal, such order, is not legally sustainable and has to be set aside. The case is remanded to the High Court for deciding the second appeal, out of which this appeal arises, afresh on its merits. [Paras 14, 15][153-D-E]
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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