Back
1999 Supreme(SC) 1179
SUPREME COURT OF INDIA
D.P.Mohapatra : R.P.Sethi : S.B.Majmudar
Hadi Hussain
Versus
Abdul Hamid Choudhary
Case No. : 5867 of 1999
Date of Decision : 10/8/99
Important Points
Subject
Civil Law - Civil Procedure
Act Referred
Headnote
(B) Second Appeal - Scope - High Court must exercise limited jurisdiction under Section 100 of the Code of Civil Procedure and decide the case based on the substantial questions of law framed. (Para 6)
Facts of the case:
In a second appeal, the High Court had initially framed substantial questions of law concerning protection under Section 53-A of the Transfer of Property Act and the interpretation of documents under Sections 91 and 92 of the Evidence Act. However, while disposing of the appeal, the High Court failed to address these questions and erroneously concluded that possession was not delivered, despite the first appellate court having found that possession was indeed given pursuant to the agreement for sale.
Findings of Court:
The High Court's judgment suffered from a patent error and non-application of mind as it ignored the framed substantial questions of law and reached a conclusion contrary to the evidence on record.
Issues: Whether the High Court's decision in the second appeal was sustainable given the failure to address framed substantial questions of law and the recording of findings contrary to the record.
Ratio Decidendi: An order passed in a second appeal that ignores the framed substantial questions of law and makes findings contrary to the record of the lower appellate court demonstrates non-application of mind and warrants remand for reconsideration.
Result: Appeal allowed and the impugned order set aside; second appeal restored to the High Court for re-decision.
(1) LEAVE granted.
(2) WE have heard learned counsel for the contesting parties finally in this appeal.
(3) A limited notice was issued on 26-8-1997 to the following effect:
"ISSUE notice for showing cause why the second appeal should not be remanded to the High Court for reconsideration as prima facie it appears that the findings recorded by the High Court are contrary to the record and the findings reached by the first appellate court. Even otherwise, the procedure as laid down by this Court in the case of Kshitish Chandra Purkait v. Santosh Kumar Purkait has not been followed. The notice must state that the proceedings will be disposed of at the notice stage itself."
(4) A mere look at the impugned order of the High Court shows that no substantial question of law was framed though we find from the record that earlier learned Judge had already framed two substantial questions of law in the second appeal on 28-9-1989 as under:
"1. Whether the appellants are entitled to protection under Section 53-A of the Transfer of Property Act? 2. Whether the appellate court misinterpreted Ext. 11 on the face of Sections 91 and 92 of the Evidence Act?"
(5) IT is difficult to appreciate as to how while disposing of the second appeal finally these questions of law were not noticed by learned Single Judge. On the contrary, in the impugned judgment we find a patent error when the learned Judge observed at p. 36 of the paper-book in paragraph (ii) to the following effect:
"(II) There was no delivery of possession in pursuance of the agreement of sale."
(6) THIS is clearly contrary to the record as at pp. 30 and 31 of the paper- book, it has been clearly found by learned first appellate court that possession was given to the defendants pursuant to the agreement for sale. For these reasons therefore, there is no escape from the conclusion that the impugned order suffers from non-application of mind. Only on this short ground and without expressing any opinion the merits of the controversy between the parties, this appeal is allowed and the impugned order dated 31-3-1997 passed in Second Appeal No. 167 of 1989 is set aside and Second Appeal No. 167 of 1989 is restored to the file of the High Court with a request to redecide the same at the earliest after hearing the parties keeping in view the limited jurisdiction under Section 100 of the Code of Civil Procedure and also to redecide the substantial questions of law as framed earlier as noted hereinabove. As the proceedings are pending since long, we request the High Court to decide the remanded second appeal expeditiously and preferably within a period of three months from the receipt of a copy of this order. Registry is directed to send a copy of this order to the Registrar, High Court of Gauhati to enable him to place the same before the Honble the Chief Justice of the High Court for doing the needful. No costs.
