SK. BHIKAN S/O SK NOOR MOHD. versus MEHAMOODABEE W/O SK. AFZAL & ORS.

Citation: [2017] 1 S.C.R. 841 · Decided: 20-02-2017 · Supreme Court of India · Bench: R.K. AGRAWAL · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2017] I S.C.R. 841 
SK. BHIKAN S/O SK .. NOOR MOHD. 
v. 
MEHAMOODABEE W/O SK. AFZAL & 'ORS. 
(Civil Appeal No. 3048 of2017) 
FEBRUARY 20, 2017 
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.) 
Code of Civil Procedure, 1908 - s. 100 - Second appeal -
Substantial question of law - On facts, dismissal of second appeal 
in limine observing that the appeal does not involve any substantial 
question of law -
Co~rectness of - Held: When the Court is called 
upon to interpret the documents and examine its effect, it involves 
questions of law - Thus, it is, obligatory upon the High Court to 
decide such questions on merits - On facts, having regard to the 
nature of controversy and issues involved regarding ownership 
based on interpretation of documents (exhibits), the questions did 
constitute substantial questions of law - High Court did not examine 
any documentfor deciding•the ownership issue - liigh Court could 
do so after framing substantial questions of law - However, it was 
not done - High Court committed jurisdictional error - Matter 
remanded to the High Court for deciding the second appeal afresh 
on n1erits. 
Allowing the appeal, the Court 
HELD: 1.1 As a matter of fact, having regard to the nature 
of controversy and the issues involved regarding ownership oased 
on interpretation of documents (exhibits), the questions did 
constitute substantial questions of law. The High Court 
unfortunately did not examine any document for deciding the 
ownership issue in relation to the suit property. [Paras 16-17) 
[845-B, D-E) 
1.2 When the Court is called upon to interpret the 
documents and examine its effect, it involves questions of law. It 
is, therefore, obligatory upon the High Court to decide such 
questions on merits. In the instant case, the High Codrt could do 
so aft~r framing substantial questions of law as required under 
Section 10\) of the Code. It was; however, not done. The High 
Court committed jurisdictional error when it dismissed the second 
841 
A 
B 
c 
D 
E 
F 
G 
H 
842 
SUPREME COURT REPORTS 
[2017] l S.C.R. 
A 
appeal in limine. The approach of the High Court cannot be 
countenanced. [Paras 18-19) [845-E-F] 
1.3 The reasoning and the conclusion arrived at by the 
High Court in the impugned order cannot be concurred with. 
The appeal did involve the substantial qnestiol)s of law and, 
B 
therefore, the High Court should have admitted the appeal by 
first framing substantial questions of law arising in the case and 
then after giving notice to the respondents for its final hearing as 
provided under Section 100 CPC decided the appeal on merits. 
[Para 15] [844-G-H; 845-A] 
C 
1.4 The impugned order is set aside. The case is remanded 
D 
E 
F 
G 
H 
to the High Court for deciding the appeal on merits in accordance 
with la11'. [Para 20] [845-G] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3048 
of2017. 
From the Judgment and Order dated 09.02.2010 of the High 
Court of Judicature at Bombay Bench at Aurangabad in Second Appeal 
No. 875 of 2009. 
Shyam Divan, Sr. Adv., Atul Babasaheb Dakh, Advs. for the 
Appellant. 
Makarand D. Adkar, Pravin Satale, Vijay Kumar, Raj iv Shankar 
Dvivedi, Nar Hari Singh, Advs. for the Respondents. 
The Judgment of the Court was delivered by 
ABHAY MANOHAR SAPRE, J. I. Leave granted. 
2. This appeal is filed against the final judgment and order dated 
09.02.2010 passed by the High Court of Judicature at Bombay Bench at 
Aurangabad in Second Appeal No. 875 of 2009 whereby the second 
appeal filed by the appellant herein was dismissed at the admission stage. 
3. We herein set out the facts, in brief, to appreciate the issue 
involved in this appeal. 
4. The appellant herein is the first defendant and respondent 
No. 1 herein is the plaintiff whereas respondent Nos. 2 to 8 herein are 
defendant Nos. 2 to 8 in the suit. 
5. The dispute in the appeal arises between the members (brother 
SK. BHIKAN S/O SK. NOOR MOHD. v. MEHAMOODABEE 
W/0 SK. AFZAL & ORS. [ABHAY MANOHAR SAPRE, J.) 
and sister) of one Muslim family. It relates to landed and house properties 
situated at village Satara, DistrictAurangabad (Maharashtra) as detailed 
in Para I of the plaint (hereinafter referred to as the "suit property"). 
6. Respondent No. I is the real sister of the appellant. She filed 
a civil suit against the appellant and respondent Nos. 2 to 8 (proforma 
defendants) in the Court of llnd Jt. Civil Judge (J.D.) at Aurangabad 
being Civil Suit No. 120of1994 and prayed therein the reliefof

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