2005 Supreme(SC) 1090

2005(6) Supreme 1
Supreme Court of India
(From Rajasthan High Court)
G.P. Mathur & P.K. Balasubramanyan, JJ.
Rajeshwari —Appellant
versus
Puran Indoria —Respondent
Civil Appeal No. 5295 of 2005
(@ Special Leave Petition (Civil) No. 16821 of 2002)
Decided on 25-8-2005
Counsel for the Parties :
For the Appellant : Anil Karanwal and Dr. Sushil Balwada, Advocates.
For the Respondent : B.D. Sharma, Advocate.

Important point
Proper test for determining whether a question of law raised in the case was substantial would be whether it is of general public importance or whether it directly and substantially affected rights of parties.

Headnote:Civil Procedure Code, 1908—Section 100— “Substantial question of law” is a substantial question of law as between the parties in the case involved—Suit for specific performance of agreement to sell a piece of land—Trial Court and lower 1st appellate Court decreed the suit—High Court dismissed second appeal holding that it did not involve any substantial question of law—Appeal—Test for determining whether a question of law raised in the case was a substantial would be whether it was of general public importance or it directly and substantially affected the rights of parties and if so whether it was either an open question as not finally settled by Apex Court or was not free from difficulty or called for discussion of alternative views—High Court was not justified in dismissing second appeal in the manner in which it has done and matter needed to be remanded.

       Held : The right to specific performance of an agreement for sale of immovable property, when filed, raises questions of substantial importance between the parties as to whether the plaintiff has satisfied the requirements of Section 16 of the Specific Relief Act, whether it is a case in which specific performance of the contract is enforceable in terms of Section 10, whether in terms of Section 20 of the Act, the discretion to decree specific performance should be exercised by the court and in some cases, whether the suit was barred by limitation and even if not, whether the plaintiff has been guilty of negligence or latches disentitling him to a decree for specific performance. These questions, by and large, may not be questions of law of general importance. But they cannot also be considered to be pure questions of fact based on an appreciation of the evidence in the case. They are questions which have to be adjudicated upon, in the context of the relevant provisions of the Specific Relief Act and the Limitation Act (if the questions of limitation is involved). Though, an order in exercise of discretion may not involve a substantial question of law, the question whether a court could, in law, exercise a discretion at all for decreeing specific performance, could be a question of law that substantially affects the rights of parties in that suit. Therefore, in the case on hand, the High Court was not justified in dismissing the second appeal in the manner in which it has done. Be it noted, that the High Court has also not spoken while dismissing the second appeal. We are therefore of the view that it is necessary for the High Court to consider whether a substantial question of law is involved or not and to give its reasons for coming to its conclusion either way, and if it finds that a substantial question of law or substantial questions of law is or are involved, to frame that question or those questions and to answer it or them in accordance with law. In the context of the notice issued by this Court while entertaining the Petition for Special Leave to Appeal, the proper course to adopt is to set aside the judgment and decree of the High Court in the second appeal and remand the second appeal to the High Court for a consideration of the question whether any substantial question of law is involved in the case in the light of the pleadings and the facts established and if it arises, to decide whether any interference in second appeal under Section 100 of the Code of Civil Procedure, 1908 is warranted or justified. (Para 4)

       By introducing the concept of “substantial question of law” in Section 100 of the Code, the right of the litigant to have a decision after a re-appraisal of the relevant materials by the High Court has been curtailed. Though, courts of first appeal are made the final courts of facts, there are instances when first appellate courts merely, mechanically, confirm the findings of fact rendered by the trial court without an independent reappraisal of the pleadings and the evidence in the case. Since a judgment of affirmance need not be as elaborate as a judgment reversing the decision of the court below, it is often contended that the judgment of the appellate court satisfies the requirements of Order XLI Rule 31 of the Code. There are occasions when the High Court feels the constraint of Section 100 and reluctantly declines to interfere though interference would have been proper to render justice between the parties. High Courts are often confronted with an argument that even if what was involved was a mixed question of fact and law or even a question of law, that did not constitute a substantial question of law justifying interference under Section 100 of the Code. Why not an error of law committed by the appellate court be corrected in Second Appeal? Why should not a litigant have an opportunity of having the decision in his case corrected for an error of law by the High Court at the second appellate stage? When a substantial question of law as expounded by this Court is only an open question of law substantial as between the parties, restoration of the position as it existed prior to 1.2.1977 does not appear to be re-opening of the door too wide. It must be remembered, that now, after the amendment of the Code by Act 22 of 2002, interference in revision under Section 115 of the Code of Civil Procedure, 1908 has also been substantially curtailed. Even if the High Court is satisfied that there would be failure of justice if the order is allowed to stand, the High Court cannot interfere under Section 115 of the Code, in view of the deletion of the particular proviso which existed prior to the amendment. Therefore, the High Courts cannot correct errors that could lead to a mis-trial or a finding of fact to be arrived at based on an erroneous approach that is proposed then and there by exercising a revisional jurisdiction, even at the initial stage so that at a later stage, a remand by the first appellate court is avoided. The curtailment of the right to interfere under Section 115 of the Code has only resulted in the High Courts being flooded with proceedings under Article 227 of the Constitution of India challenging all sorts of interlocutory orders. It is for the law makers to consider whether it would not be more appropriate to restore Section 115 of the Code as it existed prior to its amendment by Act 22 of 2002 and confer a broader right of second appeal as it existed prior to the introduction of the concept of substantial question of law into Section 100 of the Code, by Act 104 of 1976. (Para 6)