SANTOSH HAZARL versus PURUSHOTTAM TIWARL (DEAD) BY LRS

Citation: [2001] 1 S.C.R. 948 · Decided: 08-02-2001 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Appeal(s) allowed

Cited by 23 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
SANTOSH HAZARl 
• 
v. 
PURUSHOTTAM TIWARl (DEAD) BY LRS. 
FEBRUARY 8, 2001 
B 
(DR. A.S. ANAND, CJ., R.C. LAHOTI AND BRJJESH KUMAR, JJ.] 
... 
Code of Civil Procedure, 1908 : 
Section JOO-Second appeal-Scope of-Held, j11risdic1ion of the High 
c Court /u hear a second appeal is restricted lo substantial queslion of la\11 
involved in the case-Substantial question of la\V involved in the appeal not 
'
l~ 
stwed in lhe me111vrundum of second appeal-Dismissal hy High Court holding 
~ 
that no question of la\11 arose for determinaliun-legality of-Held, an 
opport11ni1y lo fi"ame such queslion should have been afforded lo the appellant 
D 
unless the deficiency was brought to lhe notice of the appellant by lhe 
Regislry or the Court and yet lhe appellant had persisted in his default--
Subslantial question of law fi"amed-Case remilted back to High Courl for 
hearing and deciding the second appeal afresh 
Subs1antial queslion of law-Meaning of-Held, to be 'subslantial', a 
-~ 
E question of law must be debatable, not previously sell led by law of the land 
or a binding precedenl and must have a material bearing on the decision 
of the case, in su far as the rights of the parties before it are concerned-
It will depend on the facts and circumstances of each case whether a question 
of law is a substantial one and involved in the case or not. 
F 
First appeal-Firs/ appellate courl-Duty as a court of first appeal-
Exercise of-Principles governing. staled-Held, the whole case being open 
for rehearing both on questions of fact and law, lhe judgement of the first 
appellate court must reflect its conscious application of mind and record 
findings supported by reasons on all the issues arising. 
G 
Appellant-plaintiff was allegedly dispossessed by the respondent-
defendant from his possession over certain area of the land out of the suit 
+ 
property. Hence the appellant-plaintiff filed a suit for declaration of title and 
recovery of possession and issuance of permanent injunction restraining the 
respondent-defendant from interfering with his possession over the suit 
H property. The Trial Court decreed the suit holding that ownership in the suit 
948 
Jr. 
>... 
). 
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SANTOSH HAZARl v. P. TIWARl 
949 
property vested in the appellant-plaintiff and the respondent-defendant had A 
forcibly occupied the disputed area. The respondent-defendant's plea of adverse 
possession and the suit being barred by limitation, was negatived. The 
respondent-defendant preferred an appeal which was allowed by the Additional 
District Judge thereby reversing the judgement and decree of the Trial Court. 
The appellant-plaintiff preferred a second appeal which was dismissed in B 
limine by the tiigh Court holding that no substantial question of law arose 
for determination. Hence the present appeal. 
Allowing the appeal, the Court 
HELD: 1. The first appellate Court did not discharge the duty cast on c 
it as a Court of first appeal. The High Court having noticed failure on the 
part of the appellant in not discharging the statutory obligation cast on him 
by sub-Section (3) of Section 100 of the Code of Civil Procedure, on account 
of the substantial question of law involved in the appeal having not been 
stated, ordinarily an opportunity to frame such question should have been 
afforded to the appellant unless the deficiency was brought to the notice of D 
the appellant previously by the High Court Registry or the Court and yet the 
appellant had persisted in his default. That was not done. A substantial question 
of law does arise as involved in the case. The case is, thus, remitted back to 
the High Court for hearing and deciding the second appeal afresh. 
(957-F-H; 958-8] 
E 
2.1. Section 100 of the Code of Civil Procedure restricts the jurisdiction 
of the High Court to hear a second appeal only on 'substantial question of law 
involved in the case.' Such questions or question may be the one proposed by 
the appellant or may be any other question which though not proposed by the 
appellant yet in the opinion of the High Court arises as involved in the case F 
and is substantial in nature. lnspite of a substantial question of law 
determining the scope of hearing of second appeal having been formulated by 
the High Court, its power to hear the appeal on any other substantial question 
of law, not earlier formulate!! by it, is not taken away subject to the twin 
conditions being satisfied : (i) the High Court feels satisfied that the case 
i

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