LexRAMESHWAR DAYAL MANGALA @ RAMESH CHAND versus HARISH CHAND & ANR.
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[2009] 4 S.C.R. 505 RAMESHWAR DAYAL MANGALA @ RAMESH CHAND A V. HARISH CHAND & ANR. Civil Appeal Nos.1694-1695 of 2009 I MARCH 18, 2009 B (DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ) Code of civil procedure, 1908: s. 100 - Second appeal - Decided by High Court without c formulating a substantial question of law and without hearing it on such question - Matter remitted to High Court for decision in accordance with Jaw. The instant appeals were filed challenging the decision of the High Court deciding a second appeal, D arising out of a decree for mandatory injunction, without formulating any substantial question of law or hearing the appeal on such question. Allowing the appeals and remitting the matter to the E High Court, the Court HELD: A perusal of the judgment passed by the High Court does not show that any substantial question of law - has been formulated or that the second appeal was heard on any such question. That being so, the judgment of the F High Court cannot be maintained, and is set aside. The High Court would proceed in the matter in accordance with law and in terms of observations made in the judgment of this Court. [para 5] (508-D-E] .; /shwar Dass Jain v. Sohan Lal 2000 (1) 5CC 434 and G Roop Singh v. Ram Singh 2000 (3) SCC 708 - relied on. Kanhaiyalal and Ors. v. Anupkumar and Ors. 2003 (1) SCC 430; Mathakala Krishnaiah v. V Rajagopal 2004 (10) 505 H 506 SUPREME COURT REPORTS [2009] 4 S.C.R. A 5CC 676; Smt. Ram Sakhi Devi v. Chhatra Devi & Ors. JT .. 2005 (6) SC 167; Sasikumar & Ors. v Kunnath Che/Japan Nair & Ors. 2005 (12) SCC 588; Gian Dass v. The Gram Panchayat Village Sunner Kalan & Ors. 2006 (6) 5CC 271; Shah Mansukhlal Chhaganlal (d) through Lrs. v. Gohil B Amarsing Govindbhai (d) through Lrs. 2006 (13) SCALE 99 - referred to. Case Law Reference 2000 (1) sec 434 relied on para 6 c 2000 (3) sec 108 relied on para 7 2003 (1) sec 430 referred to para 8 2004 (10) sec 676 referred to para 8 D JT 200S (6) SC 167 referred to para 8 2oos (12) sec S88 referred to para 8 2006 (6) sec 211 referred to para 8 2006 (13) SCALE 99 referred to para 8 E CIVILAPPELATE JURISDICTION :Civil Appeal Nos.1694- 1695 of 2009 From the Judgement and Order dated 25.03.2008/ 28.05.08 of the Hon'ble High Court of Punjab & Haryana at - F Chandigarh in R.S.A. No. 3067of1985 & Cross Objection No. 25-C of 2006 and in Review Petition No. 30-C of 2008 in RSA. No. 3067 of 1985 and Cross Objection No. 25-C of 2006. Parmanand Gaur, for the Appellant. G Manoj Swarup, Akshat Goel, Ajay Kumar, for the Respondents. .. The Judgement of the Court was delivered by DR. ARIJIT PASAYAT, J. H 1. Leave granted. ) RAMESHWAR DAYAL MANGALA@ RAMESH CHAND 507 V. HARISH CHAND & ANR. [DR. ARIJIT PASAYAT, J.] 2. These appeals are directed against the judgment of a A learned Single Judge of the Punjab and Haryana High Court disposing of an appeal filed under Section 100 of the Code of Civil Procedure, 1908 (in short 'CPC'). 3. The respondent as plaintiff has filed a suit for mandatory injunction. The appelant filed written statement refuting the 8 assertions by the plaintiff. Replication was filed by the respondent. The trial court framed 11 issues and learned Subordinate Judge, 1st class, Palwal, decided issue nos. 1, 2 and 10 in favour of the respondent decreeing the suit in mandatory injunction. An appeal was preferred by the appelant C which was decided by learned Additional District Judge, Faridabad, and was alowed. Questioning the judgment and decree passed by the First Appel ate Court, second appeal was filed which was alowed by the impugned judgment. It is to be noted that cross objection was also filed in terms of Order 41 D Rule 22 CPC. Though many points have been urged in support of the appeal, the primary stand is that the second appeal was alowed -without formulating any substantial question of law. Learned counsel for the respondent submitted that though question of law was not formulated, after analysing evidence E and applicable principles of law the High Court has a lowed this appeal. 4. Section 100 of CPC deals with "Second Appeal". The provision reads as folows: F "Section 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 shal lie to the High Court from every decree passed in appeal by any Court subordinate to
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