Madhya Pradesh High Court
Maharam (Died) Thr. Lrs Ramprasad vs Bharat Singh on 30 July, 2019
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HIGH COURT OF MADHYA PRADESH
SA No.905/2019
(Maharam (Died) Thr. Lrs Ramprasad & Umesh Vs Bharat Singh
& Others)
Gwalior, Dated : 30.07.2019
Shri K.N.Gupta, learned Senior counsel with Shri R.S.Dhakad,
counsel for the appellants.
Shri K.P.S.Sengar, learned Panel Lawyer for the State.
This second appeal is preferred under Section 100 of the CPC
against the judgment and decree dated 18/12/2018 passed by the First
Additional District Judge, Guna (M.P.) in Civil Appeal CNR No. M.P.
0801-000538-2013, whereby the judgment and decree dated 16.08.2013
passed by the Civil Judge Class I, District Guna in Civil Suit No.39A/12
has been affirmed.
Section 100 CPC reads as under:-
"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
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:
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HIGH COURT OF MADHYA PRADESH SA No.905/2019 (Maharam (Died) Thr. Lrs Ramprasad & Umesh Vs Bharat Singh & Others) 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." It is observed by the Apex Court in the case of Ratanlal Bansilal Vs. Kishorilal Goenka (AIR 1003 Cal 144) that on erroneous application of law, second appeal is maintainable if it raises a substantial question.
On perusal of record, the Court is satisfied that the substantial questions of law are involved in the case and, therefore, this appeal is admitted for final hearing on the following substantial questions of law:
"(i) Whether the Courts below have committed serious error law in holding that decree dated 21.07.1997 passed in Civil Suit No.69A/1996 is not binding on the defendants No.1 and 2 as they were not party but it was against their predecessor in title ?
(ii) Whether, the Courts below have committed serious error law in dismissing the suit as barred by limitation despite of existence of decree in Civil Suit No.69A/1996 then plaintiff occurs cause of action when the S.D.O. dismissed the appeal against mutation ?3
HIGH COURT OF MADHYA PRADESH SA No.905/2019 (Maharam (Died) Thr. Lrs Ramprasad & Umesh Vs Bharat Singh & Others)
(iii) Whether, the Courts below have committed serious error of law in misconstruing Section 52 of Transfer of Property Act, as admitted the sale deed in favour of defendant No.1 is during the pendency of suit bearing No.69A/1996 then it does not give more right then the defendant in such decree" ? Issue notice of final hearing to the respondents on payment of process fee through Ordinary mode as well as Registered A.D. post within a period of seven working days from today. Notice be made returnable within four weeks.
I.A.No.2973/2019 filed by the appellant under Order 6 Rule 17 of Code of Civil Procedure for amendment in the plaint shall be considered at the time of final hearing of the appeal.
(Rajeev Kumar Shrivastava) Judge AK/-
ANAND KUMAR 2019.07.31 10:30:32 +05'30'