1. Appointment of gas distributor based on alleged fraudulent domicile certificate — Suit for mandatory injunction — Second appeal allowed ex-parte by High Court. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 )
Back
Next 
2025 Supreme(SC) 294
SUPREME COURT OF INDIA
B.V. NAGARATHNA, SATISH CHANDRA SHARMA, JJ.
Vipin Kumar – Appellant
Versus
Jaydeep and Others – Respondents
Civil Appeal No. 2225 of 2025 [Arising Out of SLP (C) No. 16423 of 2021]
Decided On : 21-01-2025
The High Court must frame substantial questions of law in second appeals; failure to do so, along with improper service, constitutes a miscarriage of justice.
Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Review Application - The High Court dismissed the recall application against its earlier order without considering substantial questions of law, leading to a miscarriage of justice. The appellant was not properly served in the second appeal, and the appointment of Defendant No. 3 was based on a fraudulent domicile certificate. The court emphasized that fraud vitiates all judicial acts and that a judgment obtained through fraud is a nullity. (Paras 17, 28, 30)
(B) Second Appeal - The High Court must frame substantial questions of law before allowing a second appeal. The absence of such questions renders the judgment illegal. (Paras 27, 29)
Facts of the case:
The plaintiff, a permanent resident of Village Fakarhedi, contested the appointment of Defendant No. 3 as a gas distributor, alleging fraudulent documentation. The High Court initially allowed the plaintiff's appeal but did not grant the relief sought. The plaintiff's subsequent attempts to challenge the appointment were dismissed, leading to this appeal.
Findings of Court:
The court found that the High Court's earlier orders were set aside due to the lack of proper service and failure to frame substantial questions of law. The second appeal was restored for reconsideration.
Issues: The main issues included whether the High Court properly framed substantial questions of law in the second appeal and whether the appellant was afforded a fair opportunity to be heard.
Ratio Decidendi: The court ruled that the High Court's failure to frame substantial questions of law in the second appeal and the lack of proper service constituted a miscarriage of justice, necessitating a fresh hearing.
Result: Appeal allowed and the second appeal restored.
Legal Category Hierarchy
Table of Contents
2. Lack of proper service of notice — Failure to frame substantial questions of law under Section 100 CPC — Allegations of fraud vitiating previous orders. (Para 14 , 15 , 20 , 21 , 22 , 23 , 24 , 25 )
3. Service on a party's father does not constitute service on the party — Second appeals under Section 100 CPC require formulation of substantial questions of law. (Para 27 , 28 )
4. Formulation of substantial questions of law is a sine qua non for second appeals under Section 100 CPC — Fraud vitiates all judicial acts. (Para 27 , 28 , 29 )
5. Impugned orders set aside — Second appeal restored to High Court for fresh hearing and formulation of substantial questions of law. (Para 30 , 31 , 32 )
6. What is the mandatory requirement for a High Court to entertain and decide a second appeal under Section 100 of the Code of Civil Procedure?
The High Court's jurisdiction is confined to appeals involving a substantial question of law. Formulating such a question is a condition precedent and a sine qua non; reversing a judgment without doing so is patently illegal. (Para 27 )
7. How does the discovery of fraud affect the finality of a judicial order or decree?
Fraud is an extrinsic collateral act that vitiates all judicial acts. A judgment or order obtained by playing fraud on the court is a nullity and non-est, overriding the principle of finality of litigation. (Para 28 )
8. Does the dismissal of a Special Leave Petition (SLP) by the Supreme Court attract the doctrine of merger?
No, an order refusing special leave to appeal, whether speaking or non-speaking, does not attract the doctrine of merger and does not substitute the order under challenge. (Para 29 )
9. Does serving a notice on the father of a party constitute valid service on the party themselves?
No, service of notice on the father of the appellant is not considered proper service on the appellant. (Para 27 )
JUDGMENT :
B.V. NAGARATHNA, J.
1. Leave granted.
2. Being aggrieved by the order dated 05.01.2021 passed by the High Court of Uttarakhand in MCC No. 12090 of 2021 by which the application seeking recall of the order dated 11.10.2019 (passed in Review Application No. 708/2019 which was filed in S.A. No. 140/2016 which appeal was allowed by order dated 01.07.2019) was rejected, the appellant has preferred this appeal.
3. Briefly stated the facts of the case are as under. For the sake of convenience, the parties are referred to in terms of their status and position before the Trial Court while narrating the facts. However, they have also been referred to as appellant (defendant no. 3); respondent no. 1 (plaintiff); respondent no. 2 (defendant no. 1); respondent no. 3 (Union of India) and, respondent no. 4 (Tehsildar).
The plaintiff is stated to be a permanent resident of Village Fakarhedi, Tejupur. Defendant No. 1, through a daily newspaper Amar Ujala dated 21.01.2011 invited applications for the appointment of a Rajiv Gandhi Rural LPG distributor for Village Chudiyala, Tejupur, Tehsil Roorkee, District Haridwar, in the State of Uttarakhand. The application stated that the applicants who met the conditions mentioned in the advertisement could submit their applications by 23.02.2011. The eligibility criteria for the appointment of a Rajiv Gandhi Rural LPG distributor were outlined in paragraph 4 of the advertisement. According to Condition No. 4(Kha), the applicant must: 1. be a permanent resident of the notified Nyaya Panchayat of Chudiyala, Village Tejupur; 2. be an Indian citizen; 3. have completed at least 10th - grade education; 4. fulfill norms for multiple dealerships/ distributorships; and 5. possess a 20 x 24-meter plot of land in their ownership, suitable for construction as per RGGLV Cylinder rules.
4. The plaintiff contended that Defendant No. 3, who is neither a resident of the notified village nor the Nyaya Panchayat, was appointed despite being a permanent resident of Village Sherpur, Shahpur, District Saharanpur, in the State of Uttar Pradesh. The plaintiff alleged that the appointment of Defendant No. 3 was made on the basis of an illegal and fake domicile certificate. On 17.11.2011, the plaintiff raised objections to Defendant No. 1 claiming that the domicile certificate submitted by Defendant No. 3 was fraudulent. In support of his arguments, the plaintiff produced a document obtained from the Tehsildar of Roorkee confirming that no domicile certificate had been issued to Defendant No. 3 by that office. It is alleged that despite this, Defendant No. 1 ignored the objection and appointed Defendant No. 3 as the gas distributor.
5. The plaintiff further averred that the plaintiff had fulfilled all the eligibility criteria set by Defendant Nos.1 and 2 for the appointment of a gas distributor but was not considered for the position. The plaintiff submitted an application with evidence to Defendant No. 1 on 17.11.2011, requesting the cancellation of Defendant No. 3's appointment.
6. It was further averred that under the Right to Information Act, the plaintiff sought information about the domicile certificate of Defendant No. 3. On 17.02.2012, the Nayab Tehsildar of Roorkee, acting as the Public Information Officer, confirmed that no such domicile certificate had been issued by Tehsil Roorkee. However, Defendant No. 1 rejected the plaintiff's application on 25.08.2011 on the grounds that the plaintiff did not reside in the notified area and that the plaintiff did not own land in the notified area. In this regard, the plaintiff stated that all necessary documentary evidence was submitted to Defendant No. 1.
7. The plaintiff initially filed Writ Petition No. 714 of 2012 titled Jaydeep vs. State of Uttarakhand and Others before the High Court of Uttarakhand. The writ petition was disposed of on 24.04.2012 whereby the High Court directed the plaintiff to approach the appropriate forum for relief as the case involved questions of
