RAMESHWAR DAYAL MANGALA @ RAMESH CHAND v. HARISH CHAND & ANR.

The Judgement of the Court was delivered by DR. ARIJIT PASAYAT, J.

1Copy pinpoint1. Leave granted. H

RAMESHWAR DAYAL MANGALA@ RAMESH CHAND 507 V. HARISH CHAND & ANR. [DR. ARIJIT PASAYAT, J.]

2Copy pinpoint2. These appeals are directed against the judgment of a A learned Single Judge of the Punjab and Haryana High Court disposing of an appeal filed under Section 100 of the Code of Civil Procedure, 1908 (in short 'CPC').

3Copy pinpoint3. The respondent as plaintiff has filed a suit for mandatory 8 injunction. The appelant filed written statement refuting the assertions by the plaintiff. Replication was filed by the ) respondent. The trial court framed 11 issues and learned Subordinate Judge, 1st class, Palwal, decided issue nos. 1, 2 and 10 in favour of the respondent decreeing the suit in mandatory injunction. An appeal was preferred by the appelant C which was decided by learned Additional District Judge, Faridabad, and was alowed. Questioning the judgment and decree passed by the First Appel ate Court, second appeal was filed which was alowed by the impugned judgment. It is to be noted that cross objection was also filed in terms of Order 41 D Rule 22 CPC. Though many points have been urged in support of the appeal, the primary stand is that the second appeal was alowed -without formulating any substantial question of law. Learned counsel for the respondent submitted that though question of law was not formulated, after analysing evidence E and applicable principles of law the High Court has a lowed this appeal.

4Copy pinpoint4. Section 100 of CPC deals with "Second Appeal". The provision reads as folows: F "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 shal lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court G is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appelate decree passed ex parte. H

p. 508 Copy page pinpoint

A (3) In an appeal under this Section, the memorandum of • appeal shal 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 shal formulate B that question.

(5) The appeal shal be heard on the question so formulated and the respondent shal, at the hearing of the appeal . be alowed to argue that the case does not involve such c question:

Provided that nothing take away or abridge the power of the question of law, not formulated by it, if it is satisfied that the case involves such question."

5Copy pinpoint5. A perusal of the impugned judgment passed by the High D Court does not show that any substantial question of law has been formulated or that the second appeal was heard on the question, if any, so formulated. That being so, the judgment cannot be maintained, which is set aside and remitted back to the High Court for proceeding in the matter in accordance with E law and in terms of observations made herein.

6Copy pinpoint6. In lshwar Dass Jain v. Sohan Lal (2000 (1) SCC 434), this Court in para 10, has stated thus:

"10. Now under Section 100 CPC, after the 1976 F Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the doing so."

7Copy pinpoint7. Yet again in Roop Singh v. Ram Singh (2000 (3) SCC G 708), this Court has expressed that the jurisdiction of a High Court is confined to appeals involving substantial question of law. Para 7 of the said judgment reads: "7. It is to be reiterated that under Section 100 CPC of the High Court to t:::ntertain a second appeal is confined only H to such appeal~ which involve a substantial question of

RAMESHWAR DAYAL MANGALA@ RAMESH CHAND 509 V. HARISH CHAND & ANR. [DR. ARIJIT PASAYAT, J.]

"' law and it does not confer any jurisdiction on the High A Court to interfere with pure questions of fact while exercising its jurisdiction under section 100 CPC."

8Copy pinpoint8. The position has been reiterated in Kanhaiyalal and Ors. v. Anupkumar and Ors. (2003 (1) SCC 430), Mathakala Krishnaiah v. V. Rajagopal (2004 (10) 5CC 676), Smt. Ram 8 Sakhi Devi v. Chhatra Devi & Ors. (JT 2005 (6) SC 167), Sasikumar & Ors. v. Kunnath Chelapan Nair & Ors. (2005 (12) SCC 588), Gian Dass v. The Gram Panchayat Vilage Sunner Kalan & Ors. (2006 (6) 5CC 271 ), Shah Mansukhlal Chhaganlal (d) through Lrs. v. Gohil Amarsing Govindbhai (d) through Lrs. C (2006 (13) SCALE 99).

9Copy pinpoint9. The appeals are alowed and the impugned order is set aside. The matter is remitted to the High Court to rehear the Second Appeal, keeping in view the position in law set out D above. There wil be no order as to costs.

R.P. Appeals allowed.