Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ has held that 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 was hearing the case relating to suit for permanent injunction wherein the High had dismissed the second appeal without framing any substantial question of law. It was contended before the Court that framing of substantial question of law is mandatory in terms of Section 100 CPC and hence, the matter should be remitted back to the High Court for determination of the substantial question of law framed by the appellants.

On this, the Court explained that Sub-section (1) of Section 100 CPC 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 CPC.

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.”

It was the case of the appellants that the First Appellate Court had ordered that the question of jurisdiction of Civil Court would be decided first, however the appeal was decided without dealing with the said issue., thereby causing serious prejudice to the rights of the appellants. Similarly, the application under Order XLI Rule 27 of the Code was not decided which was again prejudicial to their rights.

The Court, however, found that such substantial questions of law did not arise for consideration. The issue of jurisdiction was not an issue of fact but of law. Therefore, it could very well be decided by the First Appellate Court while taking up the entire appeal for hearing.

It was noticed that the suit was simpliciter for injunction based upon possession of the property, hence, 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 CPC. Since there is no implied or express bar of jurisdiction of the Civil Court in terms of Section 9 CPC, the Civil Court has plenary jurisdiction to decide all disputes between the parties.

Hence, it was held that the High Court did not commit any illegality in not framing any substantial question of law while dismissing the appeal filed by the appellants.

[Kirpa Ram v. Surendra Deo Gaur,  2020 SCC OnLine SC 935, decided on 16.11.2020]


*Justice Hemant Gupta has penned this judgment 

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Vipin Sanghi and Rajnish Bhatnagar, JJ., in regard to Triple Talaq observed that,

Prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat.

Issues in the instant petition have been pending for consideration before the Supreme Court in WP (C) No. 994 of 2019.

In view of the above, Bench stated that since the matter is pending before the Supreme Court, hence it would wait for the judgment of the Supreme Court.

Petitioners Counsel, Tarun Chandiok and Naseem Ahmed had moved the present application with the prayer that pending the consideration of the petition, all FIRs registered under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 be stayed.

Substantial Question of Law

Further, it added to its submissions that the minimum number of Judges who should sit for the purpose of deciding any case involving substantial question of law as to the interpretation of the constitution, or for the purpose of hearing any reference under Article 143 should be five.

Bench rejected the above-stated submission stating that there is no provision either in the Constitution or in any other law which required this Court to place the matter before a Larger Bench at this stage.

Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Bench noted that the present petition is not in the nature of a Public Interest Litigation. Hence Court denied invoking Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Petitioner also submitted that Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 declares the practice of triple talaq as popularly known, to be void and illegal.

What does the said provision state:

“any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”. Section 2(c) defines talaq to mean “talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband”.

Triple Talaq

Petitioner’s Counsel also added to its submissions that once triple talaq has been rendered void and illegal, there is no justification for criminalizing pronouncement of triple talaq, since such triple talaq would have no legal effect on the status of the Muslim Marriage.

Since it is of no consequence and does not end the marital status of the wife – who may be subjected to triple talaq, there is no purpose of penalising the said Act. Section 4 of the said Act provides “any Muslim husband who pronounces talaq referred to in Section 3 upon his wife shall be punished with imprisonment for a term which may extend to 3 years and shall also be liable to fine.”

Counsel relied on the decisions of the Supreme Court in Shayara Bano v. Union of India, (2017) 9 SCC 1 and Behram Khurshid Pesikaka v. State of Bombay, (1955) 1 SCR 613.

Bench held that,

“Legislation is presumed to be valid, unless it is declared to be invalid, or unconstitutional by a Competent Court, and is struck down.”

Court observed that the prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat i.e. triple talaq.

Purpose of Section 4 appears to provide a deterrent against such practice.

Merely because triple talaq has been declared to be void and illegal, it does not mean that the legislature could not have made the continuation of such practice an offence.

High Court in view of the above discussion, did not grant any interim relief. [Nadeem Khan v. Union of India, 2020 SCC OnLine Del 1336, decided on 13-10-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua J., dismissed the appeal on ground of impugned judgment/orders being devoid of any infirmity.

The facts in a nutshell are that three ladies are claiming themselves to be the legally wedded wives of late Sh. Prem Chand and therefore entitled to his service benefits. Suit filed by one of them i.e. L1 and opposed by the other two L2 and L3, has been decreed by the learned Trial Court. This decree has been affirmed by the learned First Appellate Court. Aggrieved, the other two ladies are before this Court by way of second appeal based on important question of law that whether the Courts by way of impugned judgment misconstrued or misinterpreted the pleadings and evidence in finding out as to who is the legally wedded wife and children of the deceased.

Counsel Nimish Gupta and Vinod Thakur represented the appellants and Counsel Surinder Saklani, H.S. Rangra, Amit Dhumal, and. Manoj Bagga represented the respondents.

Submissions by L2

Neither was L2 able to show any proper documentary proof validating her claims of being legally wedded wife nor her children able to proof themselves as legal representatives of the deceased. She relied on entry of her name as the nominee in the service record of the deceased however no contemporary evidence was presented validating the same. The fact that no pandit was involved during her marriage with the deceased and that she couldn’t attend funeral of the deceased vitiates her claims further.

 Submissions by L3

L3 also failed to show any proper documentary evidence validating her claim infact she even admitted that she made no objection or complaint regarding one other man working as a sweeper in HRTC Mandi whose details reflects L3 as his wife and her children as his own.

Submissions by L1

 L1 substantiated her claim by showing negatives of wedding pictures as well as pandit who performed the marriage rites , Jamabandi Record, Panchayat Record affidavits which clearly show that deceased and L1 applied for their wedding to be registered along with Legal Heirs Certificate validating the claim of her children as the legal representatives of the deceased.

The Court observed that a second appeal only lies on a substantial question of law. It is not open to re-agitate facts or to call upon the High Court to re-analyze or re-appreciate evidence in a second appeal. Section 100 of the Code of Civil Procedure restricts the right of second appeal only to those cases, where a substantial question of law is involved.

The Court held that all the aspects in the instant second appeal and cross objection are purely factual. No substantial question of law arises in this appeal or cross-objections.

In view of the above, the appeal stands dismissed and disposed off.[Shanta Devi v. Kaushalya Devi, 2020 SCC OnLine HP 1828, decided on 01-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The bench of Navin Sinha and Indira Banerjee, JJ has held that when no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal cannot satisfy the mandate of Section 100 of the CPC.

It said that for entertaining and deciding a second appeal, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law.

“Just as this Court has time and again deprecated the practice of dismissing a second appeal with a non-speaking order only recording that the case did not involve any substantial question of law, the High Court cannot also allow a second appeal, without discussing the question of law, which the High Court has done.”

Explaining the scope of Section 100 CPC, the Court said that a second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal.

The Court, further, explained:

  • To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.
  • To be a question of law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.

“Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, a second appeal cannot be entertained.”

Conclusion

  1. An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
  2. The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
  3. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
  4. The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where
    • the courts below have ignored material evidence or acted on no evidence;
    • the courts have drawn wrong inferences from proved facts by applying the law erroneously; or
    • the courts have wrongly cast the burden of proof.

“A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”

[Nazir Mohamed v. J. Kamala, 2020 SCC OnLine SC 676, decided on 27.08.2020]

Case BriefsSupreme Court

Supreme Court: Explaining the law on transfer of cases from High Courts to the Supreme Court, the single judge bench of Aniruddha Bose, J has said that Article 139A of the Constitution vests the Supreme Court with jurisdiction to direct transfer or withdrawal of a case pending in a High Court to this Court on the following two conditions:

  • in the case pending before the Supreme Court, the questions of law involved ought to be the same or substantially the same as those involved in the case in the High Court, the withdrawal of which can be asked for.
  • the Supreme Court, while exercising the jurisdiction vested in it under Article 139A of the Constitution must be satisfied that such questions are substantial questions of general importance.

“Such satisfaction can be on Supreme Court’s own motion, on an application made by the Attorney General or on the basis of an application made by a party to any such case.”

The Court further explained that on satisfaction of these conditions, this Court can make direction in exercise of its discretion for withdrawing the case for disposal of the same by itself. The manner in which such discretion would be exercised would vary from case to case.

The Court was hearing a petition seeking transfer of a matter dealing with 10% vertical reservation for economically backward persons in general category in certain fields of public employment, from Punjab and Haryana High Court to the Supreme Court. The ground for seeking such transfer under Article 139A of the Constitution of India was that on identical point the Gujarat High Court has invalidated an ordinance issued by the State of Gujarat providing reservation of seats in the educational institutions in that State and of appointments and posts in the services under the state in favour of economically weaker sections of the unreserved categories and that decision is under appeal before the Supreme Court.

Considering that the points involved in the petition pending in the Punjab and Haryana High Court require adjudication of substantially the same questions of law and that the said questions have arisen in two different States, the Court was of the opinion that these were substantial questions of general importance and it, hence, allowed the petition to be transferred to the Supreme Court.

[Sunil Rathee v. State of Haryana, 2020 SCC OnLine SC 594 , decided on 23.07.2020]

Case BriefsHigh Courts

Kerala High Court: A.M. Babu, J. dismissed a regular second appeal filed by a lady on the ground that no substantial question of law was involved therein.

The appellant herein and the respondent herein were neighbors. The appellant claimed that the respondent constructed his house between the period 2003-2012 and that the construction was without the permission of the panchayat, and it was also violative of the Kerala Building Rules. Parts of the respondent’s property were extended and constructed close to the appellant’s property. Being aggrieved by the respondent’s actions, the appellant herein filed a suit praying for a perpetual and mandatory injunction against him. In a trial before the Court, the respondent (defendant in the suit) contended that he had completed the construction of his property in 2000, and also the building was in compliance with the Kerala Building Rules and permitted by the panchayat. It was constructed with the consent of the previous owner and the appellant started residing on her property only after 2007. Hearing arguments of both the parties, the trial court dismissed the appellant’s suit. Appeal filed by her against the said order was also dismissed. Aggrieved thereby, she filed the present second appeal before this Court.

The learned judge took account of the facts and evidence presented in trial court such as the report of the local commissioner where it was specified that the defendant had built his portion in the disputed land in 2003, and the plaintiff bought property only in 2005when the building of the defendant was already in existence. She filed the suit only in 2012.

High Court observed that “discretionary reliefs are not meant for those who are on a snail’s pace in approaching a court of law.” Thus, the appeal was dismissed.[T.G. Ramani v. B. Nandagopan, 2019 SCC OnLine Ker 2542, decided on 09-08-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Ajay Mohan Goel, J. dismissed the appeal on finding no substantial question of law involved in the appeal.

Factual matrix of the case was that the plaintiff filed a suit for recovery of a certain amount along with the interest rate; the contract was based on mutual understanding and was a written one. The plaintiff contended that the defendant had executed a receipt or undertaking for the borrowings that were made. Allegedly defendant issued a cheque in favor of the plaintiff to discharge part liability but the same was dishonored. Subsequently, the plaintiff initiated proceedings under Section 138 of the Negotiable Instruments Act. The plaintiff submitted that thereafter the matter was compromised between the two, however, the balance amount is still due.

On the contrary, the defendant submitted that the sum was never borrowed from the plaintiff neither any receipt was executed by him. The learned Trial Court had adjudicated the matter and framed several issues, like ‘Whether plaintiff suppressed material facts from the Court’ and ‘Whether the plaintiff has no locus standi to file the present suit, as alleged?’

Trial Court decreed the suit in favor of the plaintiff on the basis of the evidence presented. The contention of defendant that the document presented was not the original receipt stood answered in negative by learned trial Court by holding that receipt was the original document and the objection raised by the defendant against the same was bad, especially as defendant in the witness box had admitted in his cross-examination that signatures on said receipt was his. The trial court had relied upon, Ajudya Lal v. Sandhya Devi, HJL 2006 (2) 943, where the Court had held that ‘there could not be evidence stronger than an admission by the parties in the civil cases.’ Against the order of the Trial Court the defendant filed an appeal. However, the appeal was dismissed. Learned Appellate Court also took notice of the fact that the defendant in his statement had clearly admitted his signatures on the said exhibit. On this basis, learned Appellate Court had held that it was apparent that the defendant was yet to pay an amount to the plaintiff.

Hence, the defendant now filed a second instant appeal aggrieved by the Judgment of trial court and Appellate Court, defendant had argued that the Judgments and decrees passed by both the learned Courts below were not sustainable in the eyes of law as the learned Courts below have erred in not appreciating that exhibit was a false and fabricated document and a scanned copy of the same was exhibited and suit could have been decreed by relying upon the said exhibit.

On the contrary, the plaintiff had submitted that there was no perversity with the findings. He had further argued that as the allegation of the defendant was that the exhibit was a forged document, the onus was upon him to prove the said fact, which he was not able to prove. Accordingly, he urged that as the appeal sans merit, the same be dismissed.

The Court, observed the concurrent findings by the Courts below and held that, “The scope of interference by the High Court in Second Appeal under Section 100 of the Code of Civil Procedure is only if the Court finds that there is substantial question of law involved in the appeal.” Further, it was held that there was no substantial question of law involved in the case. Both the Courts have given the Judgment in favor of the plaintiff after examining all the evidence and pleadings. Hence, the appeal was dismissed.[Satyapal Kashyap v. P.P.S. Chhatwal, 2019 SCC OnLine HP 1561, decided on 19-09-2019]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of S. Muralidhar and Talwant Singh, JJ. dismissed an appeal filed by the Revenue against the order of the Income Tax Appellate Tribunal (ITAT) opining that no substantial question of law arises.

The issue sought to be urged by the Revenue was whether the ITAT was justified in quashing the reassessment proceedings under Section 147 of the Income Tax Act 1961 on the ground of change of opinion on the applicability of Section 40(a)(ia) of the Act even when the Assessing Officer had not expressed any opinion on the applicability of such provision during the original assessment proceedings under Section 143(3) of the Act?

Before the High Court, the Revenue was represented by Ajit Sharma, Senior Standing Counsel came along with Abida Mujahid and Priya Sarkar, Advocates. Whereas, Gagan Kumar and Amit Kaushik, Advocates appeared on behalf of the respondent-Assessee.

Perusing the record, the High Court noted that the entire exercise of the reopening of the assessment was triggered by objections raised by the audit party. From the correspondence between the Assessing Officer and the audit party, it was clear that there was no independent decision arrived at by the Assessing Officer to form “reasons to believe” for reopening of the assessment after being satisfied that there was no escapement of income. The correspondence also indicated that not once but on two separate occasions, the Assessing Officer clearly formed the opinion that this was not a case fit for reopening of the assessment and that the Assessing Officer was constrained, notwithstanding that opinion, to reopen the assessment on the express instructions issued to him vide letter of the Additional CIT (Audit).

The Court found that the Assessing Officer had in fact applied his mind to the audit party objection and formed a clear opinion that there is no justification for reopening of the assessment and yet it is only on the insistence of the Additional CIT (Audit) that the Assessing Officer changed his opinion and decided to reopen the assessment. Consequently, it was held that the reopening of the assessment, which was based on a change of opinion was vitiated in law as it did not satisfy the legal requirement of Section 147 of the Act. In these circumstances, the view taken by the ITAT called for no interference. It was held that no substantial question of law arose, and therefore, the appeal was dismissed. [CIT v. Lalit Bagai, 2019 SCC OnLine Del 9748, decided on 21-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Sudip Ahluwalia, J. disposed of the matter directing the parties that a disputed land cannot be used by either of them and also stated that a regular second appeal can be accepted without a substantial question of law.

In the present case, a suit was filed by the respondent in the trial court seeking a mandatory injunction for removal of the temporary tin sheds and other obstructions allegedly raised by the appellant (defendant in the suit) on a piece of land which was a wide public land on the western side of appellant’s house. The disputed land was in an area named Madhu Colony, which was different from Sharma Colony where the respondent-plaintiffs house was located. The obstructions on this land caused a hindrance in the respondent’s (plaintiff in the suit) ingress and egress to his house. The Trial Court granted an injunction to the respondent. Appellant challenged the said order in the Court of District Judge, who dismissed his appeal. Thereafter, the present appeal was filed and the same was disposed of by a co-ordinate Bench of this Court in 2010 observing that plaintiff-respondent had no right of ingress and egress for his house through the disputed road, and thus the finding of the lower courts was reversed to that extent. However, the decree of the Courts below directing appellant-defendant to remove encroachment from the disputed road was affirmed. Aggrieved by this decision, respondent filed a Special Leave Petition (SLP) in Supreme Court and the matter was remitted back to this Court directing that it be seen if any substantial question of law arises in the second appeal and then rehear the parties.

Issue: where encroachments on the disputed land are directed to be removed by a Court, would the party directed to remove encroachments, be still entitled to use the said land for ingress and egress from the side gate of his house.

The Court relied on the decision in Pankajakshi v. Chandrika, (2016) 6 SCC 157 where it was held that provisions of the Punjab Courts Act, 1918, which permitted filing of Regular Second Appeals, was operative notwithstanding the restrictive conditions subsequently incorporated by way of amendment of Section 100 of the Code of Civil Procedure in 1976. Consequently, the requirement of framing any substantial question of law was no longer a sine qua non for deciding a Regular Second Appeal by this Court

It was opined that a substantial question of fact and law had arisen in this case. The Court noted that respondent-plaintiff had no case that he was using the disputed area for ingress and egress on account of any Easementary right, or even by way of ‘easement of necessity’. There was no evidence to the effect that the side gate of respondent’s house was constructed with the approval of municipal authorities.

Thus, the appeal was disposed of directing the appellant to remove tin-shed and other man-made structures raised by him on the disputed land; and the respondent was also directed to not use the disputed land for ingress and egress unless expressly authorized by the local authorities. Further, the respondent was granted liberty to demolish the unauthorized concrete structures on the disputed land, in case the same were not removed by the appellant.[Mohan Lal v. Baldev Raj, 2019 SCC OnLine P&H 698, decided on 30-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This second appeal was filed before the Bench of Vivek Rusia, J., by appellant against the judgment and decree passed by 11th Additional District Judge, Indore whereby appeal was partly allowed while affirming the judgment and decree passed under Section 12 (1)(a) of M.P. Accommodation Control Act, 1961 and setting aside the Judgment and decree passed by 12th Civil Judge, Class-II Indore in respect of Section 12(1)(f) of the Act.

Petitioner submitted that in this case, there was no written tenancy agreement between the plaintiff and defendant. According to the plaintiff, he had given the suit accommodation to the defendant in the year 1978 only for two months for a temporary purpose, but after two months, he failed to vacate it. Plaintiff had filed the suit in the year 1981 and no rent receipts on record were present. Hence, the trial Court fixed the provisional rent at Rs 100  per month. Thus, plaintiff pleaded the suit to be maintainable. Whereas respondent contended that due to the defect in the notice, the suit was not maintainable and the decree was not sustainable in the eye of law. The issue before the Court was whether the decree under Section 12(1)(a) of the Act of 1961 is sustainable.

High Court viewed that this petition was maintainable in the lights of the conclusion drawn that once the non-payment of rent is established, then the Court has no option but to pass a decree on the ground contemplated under Section 12(1)(a) of the Act of 1961 but since no substantial question of law was found this appeal was dismissed. [Vasudev v. Bhagwanti Bai, 2019 SCC OnLine MP 687, decided on 11-04-2019]

Case BriefsHigh Courts

High Court of Madhya Pradesh, Jabalpur: The Court recently heard an appeal under Order 43 Rule 1 of Code of Civil Procedure is directed against an order of 2010 in a suit filed by plaintiffs for declaration, possession and permanent injunction which was dismissed by the trial court in 2009 and but later on, the appellate court opined that the plaintiffs have successfully established the title before the court below.

The appellate court placed its reliance on a judgment of Supreme Court Hans Raj v. Yasodanand, (1996) 7 SCC 122 : AIR 1996 SC 761 wherein it has been held that for the purpose of proving a sale deed, the witnesses of sale deed are not required to be examined. Further, it remitted the matter back in entirety for trial court to decide, record evidence and to hear the parties on the said limited question of encroachment in the case before it.

The learned amicus curiae for the appellants Shri Shukla contended that in the instant case, plaintiffs were the tribal and rustic women and therefore, additional evidence is required to be recorded under Order 41 Rule 23-A CPC. On the other hand, the grievance of the plaintiffs is that that in the facts and circumstances of the present case, Order 41 Rule 25 of CPC would be applicable and in the fitness of things, the appellate Court should have directed the trial Court to record evidence on the question of encroachment and provide its findings to the appellate Court instead of remitting it entirely to the trial court placing reliance on Jagannathan v. Raju Sigamani,  (2012) 5 SCC 540.

In the case before court, the question now had cropped up whether this miscellaneous appeal filed under Order 43 Rule 1 (u) of CPC needs to be heard by applying the same yardstick on which a second appeal filed under Section 100 of CPC is required to be heard. Another substantial question that cropped up before it was whether while entertaining and deciding a miscellaneous appeal under Order 43 Rule 1 (u) of CPC, the appellant is required to propose the substantial question of law and whether this Court is required to formulate such question as mandated under S. 100 CPC.

The Court observed that a comparative reading of S. 100 and Order 43 R. 1(u) of CPC that S. 100 of CPC makes it very clear that second appeal would lie to the High Court from an appeal and decree, if the High Court is satisfied that the case involves a substantial question of law. It further clarified that the S. 100(3) makes it clear again that the memorandum of appeal must contain separately the question of law involved and as per sub-section 4, the High Court must also satisfy itself that a substantial question of law is involved in it whereas Order 43 Rule 1(u) of CPC is silent on the question of existence and formulation of substantial question of law.

Sujoy Paul, J. after analyzing the judgments of the Apex Court came to the conclusion that the miscellaneous appeal before them was required to be entertained and heard if there exists a substantial question of law. So, the substantial question derived from the appeal by the court was whether the appellate court should have exercised the power under Order 41 Rule 23-A or under Order 41 Rule 25 of CPC.

The Court finally held that the court below should have exercised the powers envisaged in Rule 25 of Order 41 of CPC as in this case; the Court found that it is necessary to determine a question of fact, namely, regarding encroachment and possession of plaintiffs. It further held that the the court below has committed an error in remitting the matter on wholesale basis to the trial court and allowed the appeal. [Gooha v. Uma Devi,  2017 SCC OnLine MP 1357, decided on 09.11.2017]