Kushhar And 5 Others vs Kailash And 9 Others
2022 Latest Caselaw 2637 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 10
 

 
Case :- SECOND APPEAL No. - 464 of 2016
 

 
Appellant :- Kushhar And 5 Others
 
Respondent :- Kailash And 9 Others
 
Counsel for Appellant :- Sami Ullah Khan
 

 
Hon'ble Rohit Ranjan Agarwal,J.

This is plaintiffs' appeal under Section 100 of the Code of Civil Procedure challenging judgment and decree dated 24.10.1991 passed and drawn by 4th Additional Munsif, Basti, dismissing Original Suit No.2 of 1987 and judgment and decree dated 04.02.2016 drawn on 15.02.2016 confirming the order of the Trial Court.

Plaintiffs filed the suit for permanent injunction against defendants-respondents being Original Suit No.2 of 1987. The Trial Court vide judgment dated 24.10.1991 dismissed the suit. Against the said judgment, Civil Appeal No.52 of 1991 was filed which was also dismissed on 4.2.2016 hence the present second appeal.

Having considered the case, I find that no substantial question of law arises and both the Court below had recorded categorical finding against the plaintiffs-appellants which warrants no interference by this Court.

The Apex Court in Civil Appeal No.8971 of 2010 (Kripa Ram (deceased) through Legal Representatives and others vs. Surendra Deo Gaur and others decided on 16.11.2020 has held that the second appeal can be dismissed without even formulating the substantial question of law. Relevant paras 25 and 26 reads as under :

"25. In a judgment reported as Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763, this Court held that the second appeal can be dismissed without even formulating the substantial question of law. The Court held as under:

"18. In the light of the provision contained in Section 100 Code of Civil Procedure and the ratio decided by this Court, we come to the following conclusion:

(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;

(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the Respondent;

(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 Code of Civil Procedure."

26. In view of the above findings, we do not find any error in the judgment and order of the High Court dismissing the Second Appeal. The present appeal is thus dismissed. Pending applications, if any, shall stand disposed of."

In view of the aforesaid, the appeal stands dismissed.

Order Date :- 12.5.2022

Kushal