Code of Civil Procedure, 1908 – s.100 – Two civil suits filed by the appellant against the respondents in relation to the land in question – Suits decreed vide order dated 14.08.1996 – Appellant also filed suit before the Rent Controller for eviction of respondent no.1– Rent Controller vide order dated. 20.01.1997 passed order in favour of the appellant – Challenged by respondent no.1, which was allowed – Appellant filed application in the suit before the Rent Controller for releasing of cheque of Rs.42,400/- deposited by respondent no.1 towards the rent and arrears of the suit land – Dismissed vide order dated 14.05.1997 – Challenged by appellant, which was dismissed and order dated 14.05.1997 was confirmed – Respondent no.1 filed appeals against order dated 14.08.1996, which was allowed and order dated 14.08.1996 was set aside – Appellant filed second appeals in the High Court – High Court dismissed the appeals – Revision petitions also dismissed by High Court – Held: Though the High Court framed three substantial questions but did not answer any of them on their respective merit either way – Instead it dismissed the second appeals on the question, which it had not framed – High Court failed to see that the second appeal could be decided only on the question(s) framed u/s. 100 (4), CPC, 1908 – Appeals remanded to the High Court for hearing afresh on the merits and in accordance with law.
Allowing the appeals, the Court
HELD: 1.1 The High Court though admitted the second appeals on the three substantial questions of law but instead of answering these questions, dismissed the appeals by answering the question, which was not framed. The High Court failed to see that the second appeal could be decided only on the question(s) framed under Section 100 (4) of the Code of Civil Procedure, 1908 (“the Code”). However, if at the time of hearing, the High Court considers that the second appeal involves any other substantial question(s) of law, it has the jurisdiction to frame such question(s) but only by assigning the reasons. At the same time, the respondent is also entitled to argue at the time of hearing that the question(s) though framed are not the substantial question(s) of law involved in appeal (Section 100 (5) of the Code and its proviso). [Paras 17, 18] [1067-C-F]
1.2 A fortiori, the disposal of the second appeal by the High Court by answering the question(s) which was/were not framed either at the time of admission of the second appeal or framed without ensuring compliance of the mandatory procedure prescribed in proviso to Section 100 (5) of the Code is not legally sustainable. Though the High Court framed three substantial questions but did not answer any of them on their respective merit either way. Instead the High Court dismissed the second appeals on the question, which it had not framed. The question on which the High Court dismissed the appeals was in relation to the maintainability of the suit and this question was not a part of the three questions framed and nor the High Court framed such question by taking recourse to powers under Section 100(5) proviso of the Code. The impugned order is set aside. The appeals are remanded to the High Court for their hearing afresh on the merits and in accordance with law. No opinion expressed on the merits of the case having formed an opinion to remand the case to the High Court for their fresh disposal on the merits. The High Court will accordingly decide the second appeals as well as revision petitions uninfluenced by any observations made in the impugned order and this order. [Paras 19, 20, 22 and 23] [1068F-H; 1069-A-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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