* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 116/1982
Date of Decision: July 09, 2010
PT. GANGA PRASAD SHARMA ......Appellant
Through: Mr. Jos Chiramel, Mr. Joel
John and Mr. Rohan
Chapagain, Advocates.
versus
DR. BENI PRASAD SHARMA .....Respondent
Through: Mr.Seeraj Bagga,
Advocate.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J.
CM No.3088/2006 (U/s 100(4) read with Section 151 CPC)
1. Respondent/plaintiff had filed a suit for possession in
respect of suit property admeasuring 186.5 square yards, which is in
possession of the appellant/defendant. Trial Court dismissed the suit
of the respondent holding that the land conveyed to the respondent
vide Ex.PW-1/1 was not the land for which possession was sought
and that respondent had failed to prove his ownership qua the land
RSA No.116/1982 Page 1 of 9
shown in yellow color in the site plan Ex.PW-4/1. Trial Court also
observed that appellant was in continuous possession of the suit
property for more than twelve years before filing of the suit.
2. Respondent filed an appeal challenging the judgment
and decree of the Trial Court. Appellate Court vide its impugned
judgment and decree dated 26th March 1982, set aside the judgment
and decree of the Trial Court and decreed the suit of the respondent.
Hence, this appeal under Section 100 of the Code of Civil Procedure
(hereinafter referred to as „CPC‟).
3. This application has been filed by the appellant seeking
formulation of substantial questions of law, as according to him no
substantial question of law was formulated by this Court and without
formulating substantial question of law; appeal could not be heard
and finally decided by this Court. He suggested substantial questions
of law in para-4 of the application.
4. Application has been duly contested by the respondent
alleging that it is misuse of process of law. This Court after taking
into consideration the grounds of appeal and the decisions of the
courts below admitted this appeal on 26th April, 1982 by formulating
a substantial question of law. Therefore, the applicant while seeking
review of the said order has sought reformulation of substantial
RSA No.116/1982 Page 2 of 9
questions of law and introducing them in the order of admission
dated 26th April, 1982 cannot be allowed as the said order can neither
be reviewed nor modified after twenty five years. It is also averred
that application under Section 100 sub-section (4) CPC is not
maintainable and no substantial question of law, as sought by the
appellant can be framed now at this stage and that on 26th April
1982, appellant did not plead, nor urged before the Court to frame
any other question mentioned in ground No. XXII, meaning thereby
that the Court had declined to frame any substantial question of law
on the said grounds on 26th April, 1982. It is also averred that the
application is patently barred by period of limitation as without
suggesting formulation of substantial questions of law, appeal could
not have been filed. This application having been filed now makes
the appeal barred by period of limitation. It is urged that under these
circumstances, application being not maintainable deserves
dismissal.
5. Section 100 CPC permits a party to file an appeal from
a decree passed in appeal by any court subordinate to the High Court
if the High Court is satisfied that the case involves a substantial
question of law. As per sub-section (4) of Section 100 CPC, where
the High Court is satisfied that substantial question of law is
RSA No.116/1982 Page 3 of 9
involved in any case, it shall formulate that question. By virtue of
sub-section (5) this Court is required to hear the party on the
question so formulated and the respondent at the hearing of the
appeal has to be allowed to argue that the case does not involve such
question. Proviso to this Section protects the powers of this Court to
hear, for reasons to be recorded, the appeal on any other substantial
question of law, not formulated by it, if it is satisfied that the case
involves such question.
6. Appellant suggested substantial questions of law which
are required to be formulated in this appeal in para XXII of the
appeal. These very questions, as suggested, have also been
suggested in the instant application. On 26th April 1982, while
admitting the appeal, this Court passed the following order:-
” Admitted.
The appeal involves substantial question of law
as to the interpretation of boundaries of the properties
forming subject matter of the two sale deeds in the
suit, namely PW.1/1 and DW. 3/1.”
7. Perusal of this order makes it clear that while
observing that appeal involved substantial question of law, this Court
did not formulate any substantial question of law and the notice was
sent to the respondent on admission of the appeal. Since the appeal
RSA No.116/1982 Page 4 of 9
was admitted, it seems that it was listed before the Court in the
category of „Regular Matters‟. However, it was dismissed for non-
prosecution on 11th October, 2004. On an application of the
appellant, it was restored on 11th January, 2005. Court had asked the
appellant to file translated copies of the documents which were in
Urdu. On 8th May 2007, this Court listed the matter for 29th August,
2007 for arguments on admission/formulation of substantial
questions of law, if any.
8. As stated above, appeal had already been admitted on
26th April, 1982. Substantial question of law had not yet been
formulated and therefore, it was rightly listed for formulation of
substantial questions of law. It is pertinent that appellant had already
filed the present application in February, 2006 i.e. much before the
Court listed the matter for formulation of substantial questions of
law, though the application remained pending. It is no longer res
integra that substantial question of law is required to be formulated
at the time of admission of the appeal and the respondent is entitled
to show that the question so formulated by this Court does not
involve such a question. If the Court does not formulate such
question at the time of admission and after hearing parties purports to
formulate questions, which according to it arise for determination,
RSA No.116/1982 Page 5 of 9
acts against settled principle of law. It is not legally permissible for
a Court to formulate such purported questions while determining the
issue in the judgment itself for want of adequate notice to the
respondent.
9. In ‘Corporation of City of Bangalore Vs. Syed Iqbal
Hussain’, (2005) 9 SCC 362, Supreme Court has observed that:-
“8. It is no longer res integra that a second appeal
can be admitted for hearing; only in the event the High
Court is satisfied that the case involves a substantial
question of law, whereupon it shall formulate such a
question in terms of sub-section(4) of Section 100 of
the Code of Civil Procedure. Sub-section (5) of
Section 100 mandates that the appeal shall be heard on
the question so formulated and the respondent shall at
the hearing of the appeal be allowed to argue that the
case does not involve such a question. In view of the
provisions contained in sub-sections (4) and (5) of
Section 100 of the Code of Civil Procedure, there
cannot be any doubt whatsoever that a substantial
question of law is required to be formulated at the time
of the admission of the second appeal and the
respondent can be called upon to respond only thereto.
Even the respondent is entitled to show that the
question so formulated by the High Court does not
involve such a question. The hearing of the second
appeal, thus, must be confined to the substantial
question of law so formulated subject to the exceptions
contained in the proviso appended to sub-section (5) of
Section 100 of the Code of Civil Procedure.”
10. Thus, it is clear that under Section 100 CPC,
jurisdiction of this Court to entertain a second appeal is confined
only to such appeals which involve a substantial question of law and
RSA No.116/1982 Page 6 of 9
it does not confer any jurisdiction on the Court to interfere with a
pure question of fact while exercising its jurisdiction under Section
100 CPC. (Reference is made to ‘Dnyanoba Bhaurao Shemade Vs.
Maroti Bhaurao Marnor’, [(1999) 2 SCC 471]
11. As per the proviso, the Court should be satisfied that a
case involves a substantial question of law and not a mere question
of law and the Court must record the reason permitting a substantial
question of law to be raised. It is the duty of this Court to formulate
the substantial question of law involved in the case at the initial stage
and in exceptional cases at a later point of time. When the Court
exercises its jurisdiction under the provisio to sub-Section (5) of
Section 100 CPC in formulating 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 substantial question of law involved in
the appeal is illegal and is an abnegation or abdication of the duty
cast on the Court. (Reference is made to ‘Kshitish Chandra Purkait
Vs. Santosh Kumar Purkait & Ors.’, (1997) 5 SCC 438).
12. In the instant appeal, appellant has challenged the
findings of the Appellate Court. This Court can interfere with the
findings recorded by the courts below only on substantial question of
RSA No.116/1982 Page 7 of 9
law, either framed at the time of admission of the appeal or reframed
or substituted later on at the time of arguments. (Reference is made
to ‘K.G. Shivalingappa (Dead) by LRS. & Ors. Vs. G.S.Eswarappa
& Ors.’ (2004) 12 SCC 189).
13. While admitting the appeal, this Court, in a way,
formulated a substantial question of law by observing that appeal
involved substantial question of law as to the interpretation of
boundaries of the properties forming subject matter of the two sale
deeds in the suit, namely PW.1/1 and DE. 3/1. According to the
appellant, this is not a formulation of substantial question of law by
the Court whereas according to the respondent, substantial question
of law was formulated. However, under the circumstances, keeping
in mind the provisions of Section 100 CPC, it can be safely said that
while admitting the appeal, certain observations were made by the
Court that appeal involved substantial question of law but, no
substantial question of law was properly formulated. Therefore, this
Court at the time of hearing is within its right to formulate
substantial questions of law.
14. As discussed above, vide order dated 8th May 2007,
matter was listed by this Court for formulation of substantial
RSA No.116/1982 Page 8 of 9
questions of law, if any, on 29th August, 2007. Without formulating
substantial questions of law and without affording a fair and proper
opportunity to the respondent to submit on the same, appeal cannot
be finally decided on merits. Under these circumstances, application
stands disposed of in favour of the appellant.
RSA No. 116/1982
Parties shall submit their arguments on formulation of
substantial questions of law, if any, before the Regular Bench.
Parties shall appear before the Regular Bench on 19th July,
2010.
ARUNA SURESH
(JUDGE)
JULY 09, 2010
sb
RSA No.116/1982 Page 9 of 9