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1997(5) Supreme 22
SUPREME COURT OF INDIA
(From High Court of Calcutta)
A.S. Anand, S.P. Bharucha and K.S. Paripoornan, JJ.
Kshitish Chandra Purkait -Appellant
versus
Santosh Kumar Purkait & Ors. -Respondents
Civil Appeal No. 4069 of 1986
Decided on 7-5-1997
Counsel for the Parties :
For the Appearing Parties : P.K. Chatterjee, Dr. Shankar Ghosh, Sr. Advocates, Abhijeet Chatterjee, Ranjan Mukherjee, Sukumar Ghose, Girish Chandra, Rathin Das, D.P. Mukherjee, Advocates.
Held : We would only add that (a) it is the duty cast upon the High Court to formulate the substantial question of law involved in the case even at the initial stage; and (b) that in (exceptional) cases, at a later point of time, when the Court exercises its jurisdiction under the proviso to sub-section (5) of Section 100 C.P.C. in formulating the substantial question of law, the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the point. Proceeding to hear the appeal without formulating the substantial question of law involved in the appeal is illegal and is an abnegation or abdication of the duty cast on Court; and even after the formulation of the substantial question of law, if a fair or proper opportunity is not afforded to the apposite side, it will amount to denial of natural justice. The above parameters within which the High Court has to exercise its jurisdiction under Section 100 C.P.C. should always be borne in mind. We are sorry to state that the above aspects are seldom borne in mind in many cases and second appeals are entertained and/or disposed of, without conforming to the above discipline. The guidelines to determine as to what is a "substantial question of law" within the meaning of Section 100 C.P.C., have been laid down by this Court in a Constitution Bench decision in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. (AIR 1962 SC 1314 : (1962) Supp. (3) SCR 549). There is also a later decision of this Court in Mahindra and Mahindra Ltd. v. The Union of India and Anr. (AIR 1979 SC 798). It is unnecessary to deal at length with that aspect any further. In the light of the legal position stated above, we are of the view that the High Court acted illegally and in excess of jurisdiction in entertaining the new plea, as it did, and consequently in allowing the Second Appeal. Even according to the High Court, the point urged on behalf of the appellant was only a "legal plea" though no specific plea was taken or no precise issues were framed in that behalf. The High Court failed to bear in mind that it is not every question of law that could be permitted to be raised in second appeal. The parameters within which a new legal plea could be permitted to be raised, are specifically stated in sub-section (5) of Section 100 C.P.C. Under the proviso, the Court should be "satisfied" that the case involves a "substantial question of law" and not a mere "question of law". The reason for permitting the substantial question of law to be raised, should be "recorded" by the Court. It is implicit therefrom, that on compliance of the above, the opposite party should be afforded a fair or proper opportunity to meet the same. It is not any legal plea that could be raised at the stage of second appeal. It should be a substantial question of law. The reasons for permitting the plea to be raised should also be recorded. Thereafter, the opposite party should be given a fair or proper opportunity to meet the same. In the present case, as the extracts from the judgment quoted hereinabove, would show, the High Court has totally ignored the mandatory provisions of Section 100 C.P.C. The High Court proceeded to entertain the new plea and rendered its decision without following the mandatory provisions of Section 100 C.P.C. On this short ground, we are of the view that the judgment and decree of the High Court dated 30th November, 1982 are illegal and in excess of jurisdiction and so unsustainable and deserve to be set aside. (Paras 7 and 8)
Key Points: - Second appeal to the Supreme Court lies only where the case involves a substantial question of law (!) (!) (!) . - The memorandum of appeal must precisely state the substantial question of law involved (!) (!) . - It is the duty of the High Court to formulate the substantial question of law at the initial stage (!) (!) . - A High Court cannot entertain a new plea in second appeal unless it involves a substantial question of law and the opposite party is given a fair opportunity (!) (!) . - Proceeding to hear an appeal without formulating the substantial question of law is illegal and an abnegation of duty (!) (!) . - The principles laid down apply even when a new legal plea is raised for the first time in second appeal (!) (!) . - The amendment Act of 1976 drastically restricted the scope of second appeals (!) (!) . - Allowing an appeal on incorrect procedural basis can result in setting aside the judgment and decree (!) (!) . - The court must record reasons for permitting a substantial question of law to be raised (!) . - Both trial court and appellate court decided questions of fact, ignoring the mandatory provisions (!) (!) .
JUDGMENT
Paripoornan, J.-The plaintiff in title suit No. 89 of 1958, Munsif 1st Court, Diamond Harbour, is the appellant. The defendants in the suit are the respondents. The suit was filed for declaration of plaintiff s title and recovery of possession of the suit land (1.80 acre of land of Mouja Durganagar P.S. Diamond Harbour). Incidentally, there was a prayer for declaration that the entries in the R.S. record are erroneous. The plaint-property originally belonged to Haran Chandra Halder and Barada Prasad Halder, and by various gifts or other documents, Kshirodamani Dasi became the full owner of the suit property. The plaintiff purchased the suit property from Kshirodamani Dasi by registered Deed dated 12 Baisakh, 1365. The plaintiff s vendor had sole occupancy right in 1.80 acres of land in Mauja Durganagar. She possessed such land during the material period through the 4th defendant with whom the land was settled annually on advance rent. On 30th June, 1954, the principal defendants (defendant Nos. 1 and 2) trespassed into the suit land and dispossessed the 4th defendant. Subsequently, the trespassers got their names recorded as korfa tenants of the suit land at different fictitious jamas under Kshirodamani, the plaintiff s vendor, in the R.S. record. The plaintiff s vendor Kshirodamani never settled the suit land by granting Patta to or accepting any Kabuliyat from such trespassers. On these and other averments the suit was filed for declaration of plaintiff s title to the suit property and for recovery of the same from the defendants.
2. The main contesting defendants are defendant Nos. 1 and 2. They put forward the plea that the suit was not maintainable, that they were cultivating tenants as thika tenants, under the plaintiff s vendor on payment of advance rent and the land was settled with them on a permanent basis. The third defendant is the State of West Bengal. The State pleaded that the suit was not maintainable and they have been unnecessarily impleaded. The trial Court decreed the suit. It was found that the plaintiff has title to the suit land and the defendants have no tenancy right in the property. The plaintiff was held entitled to recover possession with mesne profits. The suit was decreed on 28.2.1961. In the appeal filed by defendant No. 1 in Title Appeal No. 362 of 1961 before the Sub-ordinate Judge, 8th Court, Alipore, the judgment and decree of the Munsif was set aside and the suit was dismissed. The plaintiff filed S.A. 993/62 and assailed the judgment and decree of the Sub-ordinate Judge rendered in Title Appeal No. 362/61. By judgment and decree 26.2.1976, the appeal was allowed and the matter was remitted to the lower appellate court for a fresh disposal, in accordance with law. After remit, Title Appeal No. 362/61 was disposed of by Sub-ordinate Judge, 8th Court, Alipore on 12.2.1977. The appeal was dismissed, affirming the judgment and decree of the trial Court dated 28.2.1961 except regarding the grant of declaration that the R.S. record of raiyat is incorrect. The defendants assailed the concurrent judgments and decrees of the courts below by filing Second Appeal No. 871/81 before the High Court of Calcutta. The plaintiff filed a memoranda of cross-objections in the said Second Appeal against the deletion of the declaration that the R.S. record regarding the suit land is incorrect. The Second Appeal that the Memoranda of Cross Objection were disposed of by a learned single Judge of the Calcutta High Court by his judgment dated 30.11.1982. The High Court allowed the Second Appeal filed by the contesting defendants and held that the suit for recovery of possession of the disputed land, i.e., the suit land, is not maintainable and the suit was dismissed. It is thereafter, the plaintiff in the suit obtained special leave in SLP (Civil) No. 10083/83 by order passed by this Court dated 4.11.1986 and the consequent Civil Appeal is before us.
3. We heard counsel. It is evident from the judgment of the Hi
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