LexARULMIGHU NELLUKADAI MARIAMMAN versus TAMILARASI (DEAD) BY LRS.
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A B C D E F G H 361 ARULMIGHU NELLUKADAI MARIAMMAN TIRUKKOIL v. TAMILARASI (DEAD) BY LRS. (Civil Appeal No. 4666 of 2019) MAY 07, 2019 [ABHAY MANOHAR SAPRE AND DINESH MAHESHWARI, JJ.] Code of Civil Procedure, 1908 – s. 100 – Second appeal – Appellant-Plaintiff filed a civil suit against the original respondent- defendant for her eviction from the suit property – Trial court decreed the suit – First appellate Court affirmed the judgment of the trial court – However, in second appeal, the High Court set aside the impugned order and dismissed the suit filed by the appellant – On appeal, held: High Court failed to frame any substantial question of law arising in the case while admitting the appeal as required u/ s. 100(4) CPC and further failed to decide the appeal as provided u/s.100(5) CPC – Instead, the High Court framed the questions for the first time while delivering the impugned judgment – The procedure and manner in which the High Court decided the second appeal was not in conformity with the mandatory procedure laid down in s.100 CPC – Thus, impugned judgment set aside – Case remanded to the High Court for deciding the second appeal afresh in accordance with law. Allowing the appeal, the Court HELD:1. The High Court failed to frame any substantial question of law arising in the case while admitting the appeal as required under Section 100 (4) of the Code of Civil Procedure, 1908 and further failed to decide the appeal as provided under Section 100 (5) of the CPC. [Para 11] [363-H; 364-A] 2. It is noticed that the High Court framed two substantial questions of law for the first time in the impugned judgment itself. In other words, what was required to be done by the High Court at the time of admission of the appeal to formulate a question of law after hearing the appellant as provided under Section 100 (4) [2019] 7 S.C.R. 361 361 A B C D E F G H 362 SUPREME COURT REPORTS [2019] 7 S.C.R. of the CPC, but the High Court did it in the impugned judgment. Similarly, the High Court could have taken recourse to the powers conferred by proviso to Section 100 (5) of the CPC for framing any additional question of law at the time of final hearing of the appeal by assigning reasons for framing additional question, if it considered that any such question was involved. It was, however, not done. Instead, the High Court framed the questions for the first time while delivering the impugned judgment. [Para 12] [364-B-D] 3. The procedure and the manner in which the High Court decided the second appeal regardless of the fact whether it was allowed or dismissed cannot be countenanced. It is not in conformity with the mandatory procedure laid down in Section 100 of the CPC. [Para 13] [362-C] 4. In the light of the foregoing discussion, the impugned judgment cannot be sustained as it is not in conformity with the mandatory requirements of Section 100 of the CPC and hence calls for interference in this appeal. [Para 15] [369-A-B] Surat Singh (Dead) v. Siri Bhagwan & Ors. (2018) 4 SCC 562 : [2018] 1 SCR 1063 – relied on. Case Law Reference [2018] 1 SCR 1063 relied on Para 14 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4666 of 2019. From the Judgment and Order dated 30.09.2011 of the High Court of Judicature at Madras in S.A. No. 365 of 2009. V. Prabhakar, Ms. Jyoti Parasher, N. J. Ramchandar, R. Chandrachud, Advs. for the Appellant. Mrs. B. Sunita Rao, Adv. for the Respondents. The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted. 2. This appeal is filed against the final judgment and order dated 30.09.2011 passed by the High Court of Judicature at Madras in Second Appeal No.365 of 2009 whereby the High Court allowed the said second appeal filed by the original respondent herein and set aside the judgment A B C D E F G H 363 and decree dated 08.12.2008 of the Subordinate Judge, Nagapattinam in A.S. No.30/2008 and dismissed the suit filed by the appellant herein. 3. A few facts need mention hereinbelow for the disposal of this appeal, which involves a short question. 4. This appeal is filed by the plaintiff, who succeeded in the Trial Court and the first Appellate Court but lost in second appeal filed by the defendant (original respondent herein) in the High Court. 5. The appellant (plaintiff) filed a civil suit against the original respondent (defendant) for her eviction from the suit property. The respondent contested the suit. 6. By Judgment and decree dated 11.10.2007, the District Munsif, N
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