High Court Not Required To Frame Substantial Question Of Law While Dismissing Second Appeal: Supreme Court

first_imgTop StoriesHigh Court Not Required To Frame Substantial Question Of Law While Dismissing Second Appeal: Supreme Court Ashok Kini16 Nov 2020 8:46 AMShare This – xThe Supreme Court has observed that a High Court is not required to frame substantial question of law while dismissing a second appeal.The formulation of substantial question of law or reformulation of the same arises only if there are some questions of law and not in the absence of any substantial question of law, the bench comprising Justices L. Nageswara Rao, Hemant Gupta and Ajay…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginThe Supreme Court has observed that a High Court is not required to frame substantial question of law while dismissing a second appeal.The formulation of substantial question of law or reformulation of the same arises only if there are some questions of law and not in the absence of any substantial question of law, the bench comprising Justices L. Nageswara Rao, Hemant Gupta and Ajay Rastogi observed.In this case, the bench was considering an appeal filed against the High Court judgment which dismissed a second appeal filed against the concurrent findings of the Trial Court and the First Appellate Court. One of the contentions raised before the Top Court in the appeal was that the High Court dismissed the second appeal without framing any substantial question of law which is mandatory in terms of Section 100 of the Code of Civil Procedure. Referring to Section 100 CPC, the bench observed.”Sub-section (1) of Section 100 of the Code contemplates that an appeal shall lie to the High Court if it is satisfied that the case involves a substantial question of law. The substantial question of law is required to be precisely stated in the memorandum of appeal. If the High Court is satisfied that such substantial question of law is involved, it is required to formulate that question. The appeal has to be heard on the question so formulated. However, the Court has the power to hear appeal on any other substantial question of law on satisfaction of the conditions laid down in the proviso of Section 100 of the Code. Therefore, if the substantial question of law framed by the appellants are found to be arising in the case, only then the High Court is required to formulate the same for consideration. If no such question arises, it is not necessary for the High Court to frame any substantial question of law. The formulation of substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law. The High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court.”The court noted that none of the judgments referred to by the appellant [except Md. Mohammad Ali (dead) by LRs v. Jagadish Kalita & Ors., (2004) 1 SCC 271] mandate the High Court to frame substantial questions of law while upholding the findings recorded by the First Appellate Court. In Md. Mohammad Ali, the Court had found that the High Court erred in dismissing the appeal without formulation of substantial question of law which arises for consideration.The bench noted the following observations made in, Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763, in which it was held that the second appeal can be dismissed without even formulating the substantial question of law:”(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law; (ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the respondent; (iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 CPC.”Another issue raised in this case was that the provision of section 28 of the Delhi Land Revenue Act, 1974 bars the jurisdiction of the Civil Court to entertain boundary disputes. The court observed that the Land Revenue Act does not expressly bar the jurisdiction of the 8 Civil Court in respect of boundary disputes. The boundary disputes are between two revenue estates and does not include the demarcation of the land of the parties, it said. Still further, the suit is simpliciter for injunction based upon possession of the property. The said suit could be decided only by the Civil Court as there is no mechanism prescribed under the Land Revenue Act for grant of injunction in respect of disputes relating to possession. The Civil Court has plenary jurisdiction to entertain all disputes except in cases where the jurisdiction of the Civil Court is either expressly or impliedly barred in terms of Section 9 of the Code. 20. Since there is no implied or express bar of jurisdiction of the Civil Court in terms of Section 9 of the Code, the Civil Court has plenary jurisdiction to decide all disputes between the parties.CASE: KIRPA RAM (DECEASED) vs. SURENDRA DEO GAUR [CIVIL APPEAL NO. 8971 OF 2010]CORAM: Justices L. Nageswara Rao, Hemant Gupta and Ajay Rastogi Click here to Read/Download JudgmentRead JudgmentNext Storylast_img

Write a Reply or Comment

Your email address will not be published.


You may use these HTMLtags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>