Allahabad High Court
Smt.Ausadi And Others vs Shahid Hussain And Others on 17 July, 2012
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 18
Case :- MISC. SINGLE No. - 1253 of 1991
Petitioner :- Smt.Ausadi And Others
Respondent :- Shahid Hussain And Others
Petitioner Counsel :- S.C.Misra,Atiya Abid,Mohd. Abid Ali
Respondent Counsel :- C.S.C,D.C. Mukherjee,R N Gupta,Vijay Shanker Tripathi
Hon'ble Anil Kumar,J.
Heard Sri Abid Ali, learned counsel for petitioner, Sri D.C. Mukherji, learned counsel for respondent and perused the record.
By means of the present writ petition, the petitioner has challenged the order dated 06.05.1991 (Anneuxre No. 5) passed by Board of Revenue in Second Appeal No. 63(z) of 1983-84/Sultanpur (Qasid Husain Vs. Smt. Ausadi).
Learned counsel for petitioner Sri Abid Ali while challenging the impugned order submits that the same is in contravention to the provisions as provided under Section 331 sub-clause (4) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act.
As per the said provision, it is mandatory on the part of the Board to formulate the substantial question of law while deciding the second appeal, the said exercise has not been done in the present case, as such the impugned order in question is contrary to law, liable to be set aside.
Sri D.C. Mukherji, learned counsel for respondent on the other hand submits that the petitioner has not taken the said ground, so, at this stage, the ground cannot be argued. However, the said submission has been rebutted by Sri Abid Ali, learned counsel for petitioner that the said ground has been taken by way of amendment as ground No. La and Va in the petition.
I have heard learned counsel for parties and perused the record.
For deeper and better understanding of the aforesaid controversy involved In the present case, it would be expedient to reproduce sub-section (4) of Section 331 and Section 341 of U. P. Z. A. & L.R. Act, which read thus :
331. Cognizance of suits, etc. under this Act_____
(1) _____
(2) _____
(3) _____
(4) A second appeal shall lie on any of "the grounds specified in Section 100 of the Code of Civil Procedure. 1908 (V of 1908) from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid.
_____
_____
_____
341. Application of certain Acts to the proceeding of this Act.--Unless otherwise expressly provided by or under this Act. the provisions of the Indian Court Fees Act, 1870 (VII of 1870), the Code of Civil Procedure, 1908 [V of 1908). and the (Limitation Act, 1963 (XXXVI of 1963)), (including Section 5 thereof) shall apply to the proceedings under this Act. _____ _____
A conjoint reading of subsection (4) of Section 331 and Section 341 of U. P. Zamindari Abolition and Land Reforms Act, 1950. reveal that unless otherwise expressly provided by or under this Act the provisions of Indian Court Fees Act. 1870. the Code of Civil Procedure and the Limitation Act, 1963 including Section 5 thereof shall apply to the proceedings under U. P. Zamindari Abolition and Land Reforms Act. As regards second appeal, it is mandated under sub-section (4) of Section S31 that a second appeal shall lie on any of the grounds specified In Section 100 of the Code of Civil Procedure from the final order or decree passed in an appeal under sub-section (3). to the authority, if any. mentioned against it in column 6 of the Schedule given in the end of the Act No. 1 of 1951.
What is a substantial question of law involved in the case? Section 100 of the Code of Civil Procedure, 1908 (hereinafter, 'the code', for short) as substituted by the Code of Civil Procedure Amendment Act, 1976 (104 of 1976) w.e.f. 1.2.1977 reads as under:-
"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 shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code.
In the case of (Miss) Louiza D'souza Vs. John Claudis Andrews and others, 2001 (92) R.D. 64, Hon'ble the Supreme Court held that deciding the second appeal without framing substantial question of law by a court is contrary to the provisions as provided under Section 100 C.P.C. and on the said ground set aside the order under challenge passed in second appeal and remanded the matter to decide afresh.
Further, on 25.07.1991, this court has passed order, on reproduction reads as under:-
"Admit.
Issue notice.
While further orders of the Court further operation of the decree passed by the Board of Revenue dated 6.5.91 shall remain stayed. "
Moreover, Sri D.C. Mukherji, learned counsel for respondent has also not disputed the position of law that while deciding the second appeal, the appellate court should frame substantial question of law.
Thus, keeping in view the abovesaid facts, the order dated 06.05.1991 (Anneuxre No. 5) passed by Board of Revenue is set aside and the matter is remanded to Board of Revenue/O.P. No. 5 to decide the appeal in question in accordance with law expeditiously.
With the above observations, writ petition is allowed.
Order Date :- 17.7.2012
Ravi/
