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TAPESHAR versus PAHALWAN

High Court of Judicature at Allahabad

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Tapeshar v. Pahalwan - SECOND APPEAL No. 2729 of 1982 [2006] RD-AH 11002 (5 July 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

      Court No. 48

Second Appeal No. 2729 of 1982

Tapesar      Vs. Pahalwan

Hon. S.P. Mehrotra, J.

Case called out in the revised list.

Sri Ashish Kumar Mishra, holding brief for Sri Shashi Nandan, learned counsel for the plaintiff-appellant is present. However, learned counsel for the defendants-respondents are not present.

The present Second Appeal is listed today for hearing.

A perusal of the record shows that by the order dated 22.9.1982, the  present Second Appeal was admitted, and the notice was directed to be issued. However, no Substantial Question of Law, as per the requirements of sub-section (4) of Section 100 of the  Code of Civil Procedure, was framed by the Court.

The question arises as to whether in such circumstances, it is open to this Court to frame Substantial Question of Law at this stage of hearing of the Second Appeal.

Section 100  of the Code of Civil Procedure lays down as under :-

"Section 100. 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 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.

Sub-section (1) of Section 100 of the Code of Civil Procedure, interalia, provides that 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.

Sub-section (4) of Section 100 of the Code of Civil Procedure  lays down that where the High Court  is satisfied that a substantial question  of law is involved in any case, " it shall formulate that question".

It has been laid down by the Supreme Court in various decisions that it is incumbent on the High Court to frame Substantial Question of  Law under Section 100  of the Code of Civil Procedure. If the Second Appeal is entertained without framing  Substantial Question of Law, it amounts to illegality  and  failure to perform duty  cast on the Court.

Reference in this regard may be made to the  following decisions:-

(1) Sayed Muhammed Mashur Kunhi Koya Thangal  Vs. Badagara Jumayath Palli Dharas Committee and others, 2004(4) AWC 2893 ( SC)  ( Paragraph No. 7)

(2) Commissioner, Hindu Religious and Charitable Endowment Vs. P. Shanmugama and others, AIR 2005 Supreme Court 770 ( Paragraph No. 6).

(3) Govindaraju Vs. Mariamman , AIR 2005 Supreme Court 1008( Paragraphs Nos. 12 and 16).

(4) Manicka Poosali ( deceased by L.Rs.) and others Vs. Anjalai Ammal and another , AIR 2005 Supreme Court  1777( Paragraphs Nos. 14 and 15).

(5) M . Janardhana Rao Vs. Joint Commissioner of Income Tax, (2005) 2  Supreme Court Cases 324 ( Paragraphs Nos. 13,14, 16 and 17).

(6) Rajeshwari Vs. Puran Indoria, (2005) 7 Supreme Court  Cases 60 ( Paragraph No. 6).

    Sub-section (5) of Section 100 of the Code of Civil Procedure provides  that the Second Appeal   shall be heard on the Substantial Question of Law formulated by the High Court. However, at the time of hearing of the Second Appeal, it will be open to the respondent to argue that the case does not involve such question.

Proviso to sub-section (5) of   Section 100 of the Code of Civil Procedure lays down that nothing in sub-section (5) 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.

Thus, it is implicit in the language of the Proviso to sub-section (5) of Section 100 of the Code of Civil Procedure  that the Court has power to hear  appeal on any other substantial question of law which has not been formulated by it, if it is satisfied that the case involves such question.

Proviso to sub-section (5) of Section 100 of the Code of Civil Procedure   declares that nothing in sub-section (5) shall be deemed to  take away or abridge the above power of the Court.

It may, however, be noted that the Court in such circumstances, will be required to record reasons for hearing the appeal on any other Substantial Question of Law not formulated by it.

In my opinion, once it is accepted that the Court has power to hear the appeal on any Substantial Question of Law, not formulated by it, if it is satisfied that the case involves such question, it logically follows that the Court may exercise this power at the stage of hearing  when no such Substantial Question of Law has been formulated at the time of admission of the Second Appeal provided the Court is satisfied that the case involves any Substantial Question of Law .

Therefore, in the present case, it is open to this Court to formulate Substantial Question of Law at this stage even though such question has not been formulated  at the time of admission of the Second Appeal.

I have heard Sri Ashish Kumar Mishra, holding brief for Sri Shashi Nandan, learned counsel for the plaintiff-appellant,  and perused the record.  

Having heard Sri Ashish Kumar Mishra and having perused the record, I am prima-facie satisfied that the following Substantial Question of Law is involved in the present case:

"Whether the Suit in question, namely, Original Suit No. 634 of 1975 could be treated to be Objections under Section 47  of the Code of Civil Procedure in view of sub-section (2) of Section 47 of the  Code of Civil Procedure, even though sub-section (2) of Section 47  of the Code of Civil Procedure had been omitted by the Code of Civil Procedure (Amendment) Act, 1976 with effect from 1.2.1977?"

Even though, no Substantial Question of Law was  framed by the Court at the time of admission of the present Second Appeal, as per the requirements of sub-section (4) of Section 100  of the Code of Civil Procedure, I am formulating the above  Substantial Question of Law  in the interest of justice because, as mentioned above, I am prima-facie satisfied that the above Substantial Question of Law is involved in the present case.

Accordingly,  the above Substantial Question of Law is formulated in the present case.

The defendant-respondent, who is already represented through the learned counsel is permitted to address the Court on the above Substantial Question of Law framed by the Court today. It will be open to the defendant-respondent to argue that the case does not involve such question.

List after three weeks.

Dt. 5.7.2006/ Second Appeal No..2729 of 82/aks.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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