LexKSHITISH CHANDRA PURKAIT versus SANTOSH KUMAR PURKAIT
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KSHJTISH CHANDRA PURKAJT v. SANTOSH KUMAR PURKAIT MAY 7, 1997 [DR. A.S. ANAND, S.P. BHARUCHA AND K.S. PARIPOORNAN, JJ.] Code of Civil Procedure, 1908: Section 100(5). A B Second appeal-Substantial question of law-New legal plea C raised-Such a specific plea was neither taken in the courts below nor any precise issues framed in that behalf-High Court entertained the new plea and decided the case without following the mandatory provisions of S. JOG-Held: High Court should be ''satisfied" that the case involves a "substantial question of law"' and not a mere "question of law''-Reason for pennitting the substan- tial question of law to be raised should be "recorded''-Jt is the duty cast upon D the High Court to fonnulate the substantial question of law and to put the opposiie party 011 notice and give fair and proper opportunity to meet _the point-In absence thereof hearing of second appeal is il/egal---High Coun abdicated mandatory duty cast upon it and acted in excess of its jurisdiction. The plaintiff-appellant purchased the suit property from one K who had sole occupancy right. K possessed the land during the material period through the 4th defendant with whom the land was settled annually on advance rent. Subsequently, the principal defendants (defendants Nos. I E and 2) trespassed into the suit land and dispossessed the 4th defendant. Thereatler, the trespassers got their names recorded as korfa tenants of F the suit land at different fictitious jamas under K, the plaintiff's vendor, in the R.S. record. The plaintiff's vendor K never settled the suit land by granting Patta to or accepting any Kabuliyat from such trespassers. On these and other averments the suit was tiled for declaration of plaintill's title to the suit property and for recovery of the same from the defendants. G Defendants I and 2 put forward the plea that the suit was not maintainable, that they were cultivating tenants under the plaintill's ven- dor 011 payment of advance rent and that the land was settled with them on a permanent basis. The third defendant was the State. The Stak pleaded that the suit was not maintainable and it had been unnecessarily H 201 202 SUPREME COURT REPORTS [1997] SUPP. 1 S.C.R. A impleaded. The trial court decreed the suit. The decree was affirmed in appeal by the Subordinate Judge who also held that the defendants failed to prove their tenancy raiyats in the suit land and the first defendant never possessed the suit land in the previous years, as alleged. The courts concurrently found that the plaintiff's vendor, K, was in possession of the B suit land. The 3rd defendant only stated that the suit was not maintainable and the State was an unnecessary party to the suit. But, in Second Appeal the contesting defendants raised a new plea. It was to the effect that the plaintiff's vendor, an occupancy raiyat, was a deemed intermediary under Section 52 of the West Bengal Estates Acquisition Act, 1953, that she was not in possession of the suit land on the date of vesting; that her interest C in the suit property vested in the State and that the plaintiff was not entitled to maintain the suit. Such a specific plea was neither taken in the courts below nor any precise issues were framed in that behalf. The High Court allowed the Second Appeal filed by the respondent and held that the suit was not maintainable and dismissed the suit. Being aggrieved the D appellant-plaintiff preferred the present appeal. Allowing the appeal, this Court HELD : 1.1. It is not every question of law that could be permitted to be raised in second appeal. The parameters within which a new legal E plea could be permitted to be raised, are specifically stated in sub-section (5) of Section 100 of the Code of Civil Procedure, 1908. Under the proviso, the Court should be "satisfied" that the case involves a "substantial question of law" and not a mere "question of Law". The reason for permitting the substantial question of law to be raised, should be "recorded" by the Court. F Further, (a) it is the duty cast upon the High Court to formulate the substantial question of law involved in the case even at the initial stage; · and (b) that in (exceptional) cases, at a later point of time, when the Court exercises its jurisdiction under the proviso to sub-section (5) of Section 100 C.P.C. in formulating the substantial question of law, the opposite party should be put on notice thereon and sho
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