Punjab-Haryana High Court
Dayal Sarup vs Om Parkash (Since Deceased) Through ... on 24 February, 2010
Author: Mahesh Grover
Bench: Mahesh Grover
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
R.S.A. No.1587 of 1988
Date of Order: 24.2.2010
Dayal Sarup.
....... Appellant.
Versus
Om Parkash (since deceased) through L.Rs. & others.
....... Respondents.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
Present: Shri C.B.Goel, Advocate with Shri Nitin Jain and Shri Manoj
Sharma, Advocates for the appellant.
Shri M.L.Sarin, Senior Advocate with
Shri Hemant Sarin and Ms.Alka Sarin, Advocates for the
plaintiffs-respondents.
Shri M.L.Saggar, Senior Advocate with Shri G.P.Vashisth,
Advocate; Shri G.S.Punia, Advocate, Shri Sanjiv Gupta,
Advocate and Shri Gaurav Chopra, Advocate - intervenors.
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
At the threshold of the hearing, learned counsel for the plaintiffs-respondents contended that since the memorandum of appeal does not contain the substantial questions of law as required under Section 100 (3) of the Code of Civil Procedure,1908 (for short, `CPC') nor an application under Order 41 Rule 2 CPC has been moved in terms of Rule 10 of Chapter 14 Part B, of Volume-1 of the Rules and Orders of Punjab and Haryana High Court (hereinafter described as `the Rules & Orders') R.S.A.No.1587 of 1988 -2- ....
seeking permission of this Court to amend the same so as to incorporate them before the date of hearing, it is liable to be rejected outrightly as per Rule 3 of Order 41 CPC. He also contended that the power of the Court under Section 100(5) of the CPC can also not be pressed into service so as to formulate other/ additional substantial questions of law. In support of his contentions, he placed reliance on the judgments of the co-ordinate Bench of Alok Singh,J. in R.S.A.No.861 of 1981 -Bikkar Singh and othes Versus Jalaur Singh and others, decided on 16.2.2010; R.S.A.No.888 of 1982
-Kartar Singh and another Versus Tulsi (died) through LRs and others, decided on 17.2.2010; R.S.A.No.769 of 1982 - Rajinder Singh and others Versus State of Punjab and others, decided on 17.2.2010 and R.S.A.No.1291 of 1982 - Mohinder Kaur and others Versus Manmohan Singh and others, decided on 17.2.2010.
On the other hand, learned counsel for the appellant contended that the appeal cannot be dismissed merely on such a plea as Section 100 of the CPC empowers the High Court to formulate substantial questions of law in the eventuality of the one arising therein which can be ascertained only after the merits thereof have been gone into. He further contended that the judgment of the Full Bench in Bikram Dass Versus The Financial Commissioner, Revenue, Punjab, Chandigarh and others, AIR 1975 (P&H) 1 which has been relied upon by the learned Judge in judgment dated 16.2.2010 rendered in R.S.A.No.861 of 1981, was overruled by the Supreme Court in The State of Punjab and another Versus Shamla Murari and another, AIR 1976 S.C. 1177. It was submitted that non-stating of R.S.A.No.1587 of 1988 -3- ....
questions of law in the memorandum of appeal is merely an irregularity which can be inferred from the fact that if an appeal has to be filed today without formulating the substantial questions of law, the same would be required to be rectified by affording an opportunity to the appellant in accordance with Rule 5 of Chapter-I-A(a) of Volume-V of the Rules and Orders, but certainly the appeal cannot be dismissed at the threshold for want of statement of questions of law. In support of this submission, reliance was placed on Mahant Bikram Dass Chela Versus Financial Commissioner, Revenue, Punjab, Chandigarh and others, (1977) 4 S.C.C. 69; M/S Bharat Khandasari Udyog Versus Khandasari Inspector, Roorkee West Circle and another, 1992 Supp.(2) S.C.C. 473; Banarsi Dass Versus Brig Maharaja Sukhjit Singh & anr., JT 1997(8) S.C. 556; State of M.P. and another Versus Pradeep Kumar and another; (2000) 7 S.C.C. 372; Kulwant Kaur & Ors. Versus Gurdial Singh Mann (dead) by LRs & Ors., JT 2001(4) SC 158 and Uday Shankar Triyar Versus Ram Kalewar Prasad Singh and another, (2006) 1 S.C.C. 75. It was further submitted that the Supreme Court in a number of judgments has held that it is the duty of the High Court to frame the substantial question of law in accordance with the provisions of Section 100(4) of the CPC and, therefore, the second appeal cannot be rejected only on the ground that no substantial question of law was formulated by the appellant in the memorandum of appeal. Some of the judgments referred to by him in this regard are:-
1. Kalu Ram Versus Shrinathdas and others, (2000) 3 S.C.C. 576;R.S.A.No.1587 of 1988
-4-
....
2. Batakrushna Das Versus Natabar Behera, (2000) 9 S.C.C. 29;
3. Shaha Mansukhlal Chhaganlal (dead) through LRs. Versus Gohil Amarsing Govindbhai (dead) through LRs., (2006) 13 S.C.C. 113;
4. Koppisetty Venkat Ratnam (D) through LRs Versus Pamarti Venkayamma, JT 2009(4) S.C. 448.
Learned counsels, who have appeared as intervenors also submitted on the similar lines.
After hearing the learned counsel for the parties as well as the intervenors at some length on this issue and perusing the various judgments cited by them, I find serious clouds of doubt crowding my mind and am unable to persuade myself to agree to the view expressed by Alok Singh, J. in the judgments rendered in R.S.A. Nos. 861 of 1981; 769 , 888 and 1291 of 1982, which have been relied upon by the learned counsel for the plaintiffs-respondents. As mentioned above, the judgment of the Full Bench of this Court in Bikram Dass's case (supra) has specifically been overruled by the Apex Court.
However, before formulating the questions which crop up from the reading of the provisions of law, numerous judicial precedents mentioned above and also from the bare reading of Section 100 CPC as well as the provisions of the Rules and Orders, I may proceed to lay basis for such posers.
Section 100 CPC envisages that an appeal shall lie to the High R.S.A.No.1587 of 1988 -5- ....
Court from every decree passed in appeal by any Court subordinate to it if the High Court is satisfied that the case involves a substantial question of law. Sub-section (1) of Section 100 CPC enjoins a duty upon the High Court to satisfy itself in the first instance when the appeal is set down before it as to whether a substantial question of law arises in it or not. Section 100(3) casts a duty upon the appellant filing an appeal to state in the memorandum of appeal precisely the substantial question of law which is involved in the appeal, while Section 100(4) goes on to state that where the High Court is satisfied that a substantial question of law is involved, then it shall formulate that question and if such a question of law is formulated, then the High Court shall proceed to permit the arguments on appeal on the said question of law. The proviso to Section 100(5) only enlarges the scope of the earlier provisions of law and contemplates a situation when no substantial question of law has been framed, but at the time of hearing if the Court, for reasons to be recorded, regarding its satisfaction that a substantial question of law is involved, may formulate such a question to dispose of the appeal.
For ready reference, Section 100 CPC in its entirety is reproduced below:-
100. Second appeal.(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial R.S.A.No.1587 of 1988 -6- ....
question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) 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 question; Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the 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."
From a bare reading of the aforequoted provisions, it becomes clear that nowhere the language of Section 100 CPC is as fettered as has been made by the reasoning of Alok Singh,J. in the aforesaid judgments. In my view, subjugating a substantial right of an appeal to some technicalities or irregularities, would certainly mean throttling the justice because the non-stating of questions of law in the memorandum of appeal are not such defects which cannot be cured at a later stage. Moreover, the requirement R.S.A.No.1587 of 1988 -7- ....
of stating questions of law in the memorandum of appeal was not in place at the time of filing of the appeal because of the provisions of Section 41 of the Punjab Courts Act,1934. Since the controversy raises a question of larger importance, the answer to which is likely to impact the fate of innumerable appeals, I deem it appropriate, in all humility, to request Hon'ble the Chief Justice to refer the matter to a larger Bench to consider the following questions which arise because of my inability to agree with the view expressed by Alok Singh,J. :-
1. Whether in the absence of any substantial question of law being stated in the memorandum of appeal, the same can be rejected or not?
2. Whether Section 100 CPC enjoins a duty upon the High Court to formulate a substantial question of law even if the same has not been stated in the memorandum of appeal or whether the appeal can be dismissed solely on this ground that it has not so been stated in the memorandum of appeal?
3. Whether non-stating of a substantial question of law in the memorandum of appeal is a mere procedural irregularity and can result in rejection of appeal or whether it can be cured and rectified?
4. Whether an application under Rule 2 of Order 41 CPC can be moved at any time before hearing of the appeal or whether the same can be rejected merely because it has been filed after lapse of substantial period of time? R.S.A.No.1587 of 1988 -8-
....
5. Whether Rule 10 of Chapter 14 Part B, of Volume-1 of the Rules and Orders governs the procedure of filing of the regular second appeal in the High Court or not?
6. Whether an application simpliciter for formulating substantial questions of law would suffice the needs of Section 100 CPC or whether the memorandum of appeal would necessarily have to be amended, especially in view of the fact that at the time of filing of the appeal, i.e., between 1971 to 2001, there was no need to formulate such questions?
The matter is directed to be placed before Hon'ble the Chief Justice for constituting a larger Bench so as to answer the aforementioned questions because a large number of old appeals which are pending adjudication, are likely to be affected. I would also venture to request Hon'ble the Chief Justice to constitute such Bench at its earliest.
February 24,2010 ( Mahesh Grover ) "SCM" Judge