Himachal Pradesh High Court
Sudama Ram vs Surekha And Others on 25 July, 2025
1
( 2025:HHC:24425 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Review Petition No.37 of 2020 a/w
Review Petition No.101 of 2021
Date of Decision : 25.07.2025
Review Petition No.37 of 2020
Sudama Ram
...... Petitioner
Versus
Surekha and others
......Respondents
Review Petition No.101 of 2021
Surekha and another
...... Petitioners
Versus
Sudama Ram and others
......Respondents
Coram:
The Hon'ble Mr. Justice Bipin Chander Negi, Judge
Whether approved for reporting?1 No
For the petitioner(s) : Mr. Mohan Singh, Advocate, for the petitioner in
CR No.37 of 2020.
Mr. G.D. Verma, Senior Advocate with Mr. Sumit
Sharma, Advocate, for the petitioners in RP No.101
of 2021.
For the respondent(s) : Mr. G.D. Verma, Senior Advocate with Mr. Sumit
Sharma, Advocate, for respondents No.1 and 2, in
CR No.37 of 2020.
Mr. Mohan Singh, Advocate, for respondent No.1 in
CR No.101 of 2021.
1
Whether reporters of Local Papers may be allowed to see the judgment?
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( 2025:HHC:24425 )
Mr. R.P. Singh, Deputy Advocate General, for the
respondents/State, in both the petitions.
.
Mr. Virender Thakur, Advocate, vice Mr. Mukul
Sood, Advocate, for respondent-Municipal
Corporation, in both the petitions.
Bipin Chander Negi, Judge (oral)
Vide impugned judgment dated 27.04.2020, two Regular
Second Appeals bearing Nos.452 and 459 of 2007 had been decided.
Insofar as RSA No.452 of 2007 is concerned, the same was admitted
vide order dated 03.10.2007. At the time of admission of the said
appeal, it had been made clear that the same was being admitted on
substantial questions of law No.1 to 3 and 6, formulated at page-7 of
the paper book of that appeal. The same are being reproduced here-
in-below for ready reference:-
"1. Whether the Demarcation report Ex.PW2/A and Tatima Ex.PW5/A
showing encroachment over the suit land of Plaintiffs are legal and
valid and therefore decree for removal of this encroachment was
required to be passed.
2. Since both the court below having held that there is no Path existing
over Khasra No.192 owned by the State of H.P., therefore decree for
injunction was required to be passed a prayed for by the Plaintiffs.
3. Whether the Lower Appellate Court having held that Demarcation
report Ex.PW2/A was doubtful, therefore orders were required to be
passed under Order 26 rule 9 CPC to get the boundaries of the
Respective Plots of the parties determined and to find out extent of
encroachment.
6. Whether construction of defendant No.1 being unauthorized and
illegal being in violation of the relevant provision of law and rules and
regulations, therefore decree for removal and mandatory injunction is
justified under the facts and circumstances of the case."
( 2025:HHC:24425 )
2. Similarly, RSA No.459 of 2007 had been admitted vide order
.
dated 24.07.2008. At the time of admission of the said appeal, it had
been made clear that the same was admitted on substantial questions
of law No.7 and 8, formulated at page-12 of the paper book of that
appeal. The same are being reproduced here-in-below for ready
reference:-
"7.
8.
r to
Whether Ld. Trial Court and first appellate court have illegally rejected
appellant's/defendant's applications under Order 39 Rule 7, Order 18
Rule 18 and under Order 41 Rule 27?
Whether Ld. Trial Court should have rejected the plaint under Order 7
Rule 11 (a) and (d) of the CPC in the absence of any such disputed
demarcation as the demarcation is mutually consented between both
the parties ?"
3. In both the review petitions, the sole contention urged on behalf
of both the review petitioners is that while deciding the aforesaid two
appeals, the Court has not answered the substantial questions of law
on which the appeals had been admitted. In fact, from perusal of the
impugned judgment dated 27.04.2020, specifically Paragraph-15
thereof, it is evident that the appeals, in the case at hand, had been
decided in terms of questions being raised therein. The questions
raised therein were in addition to the substantial questions of law on
which the appeals in the case at hand had been admitted upon.
4. It is well settled law that second appeal could be decided only on
the question(s) framed under Section 100 (4) of the Code of Civil
( 2025:HHC:24425 )
Procedure, 1908 (hereinafter referred to as "the Code"). However, if at
the time of hearing, the High Court considers that the second appeal
.
involves any other substantial question(s) of law, it has the jurisdiction
to frame such question(s) but only by assigning the reasons. At the
same time, the respondent is also entitled to argue at the time of
hearing that the question(s) though framed are not the substantial
question(s) of law involved in appeal (See Section 100 (5) of the Code
and its proviso). r
5. The disposal of the second appeal by the High Court by
answering the question(s) which was/were not framed either at the time
of admission of the second appeal or framed without ensuring
compliance of the mandatory procedure prescribed in proviso
to Section 100 (5) of the Code is not legally sustainable.
6. In the case at hand, Section 100 of the Civil Procedure Code has
been observed more in its breach rather than its compliance. Since a
provision of law has been ignored while passing the final judgment in
the case at hand, therefore, present review petitions point out an error
of law apparent on the face of the record. In this respect reference can
be made to decision of the Hon'ble Supreme Court in Girdhari Lal
Gupta vs. D.H. Mehta, 1971 (3) SCC 189 and Lily Thomas, Etc. Etc.
vs Union Of India & Ors., 2000 (6) SCC 224.
( 2025:HHC:24425 )
7. In view of the aforesaid, present review petitions are allowed.
Impugned judgment dated 27.04.2020 is recalled. The aforesaid
.
appeals are revived and ordered to be listed for consideration in due
course.
Pending miscellaneous application(s), if any, shall also stand
disposed of.
July 25, 2025 (KS)
r to (Bipin Chander Negi)
Judge
