Jammu & Kashmir High Court - Srinagar Bench
Gajinder Singh vs S. Bhupinder Singh Machra And Ors on 3 December, 2021
1
S. No. 30
Supplementary 3
HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT SRINAGAR
IA No. 15/2017
In CSA No. 9900001/2016
CM No. 3333/2019
c/w Reserved on: 25-11-2021
CPC No. 7/2016 Pronounced on: 03-12-2021
Gajinder Singh ...Appellant(s)/Petitioner(s)
Through: Mr. G.A. Lone, Adv.
V/s
S. Bhupinder Singh Machra and Ors. ..... Respondent(s)
Through: Mr. J.H. Reshi, Adv.
CORAM:
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE.
ORDER
1. Through the medium of instant application, filed by the applicant-
appellant, framing of further substantial questions of law is being
sought.
2. According to the applicant civil second appeal being CSA No.
9900001/2016 filed by the applicant herein, this Court upon admitting
the same for hearing on 24.08.2017, framed following substantial
questions of law for adjudication came to be framed: -
a. Whether a single appeal filed against a common judgment passed in
two different suits by trial Court, is maintainable?
b. Whether arbitration agreement/award relied upon by respondents is
in essence an arbitration award s contemplated under the provisions
of J&K Arbitration and Reconciliation Act, or is a document
evidencing family settlement simpliciter?
c. Whether respondents could claim two reliefs, which are mutually
contradictory inasmuch as respondents while claiming a decree of
declaration of being owner in possession can also pray for decree of
possession?
3. According to the applicant in the memo of appeal besides the
aforesaid substantial questions, other questions to be substantial
question of law as well had been proposed/stated.
4. It is being stated that during the hearing of the appeal for admission it
was brought to the notice of the Court that the findings recorded in
regard to non-joinder of necessary parties and question of limitation
decided by the Courts below suffer from perversity, besides that
inadmissible evidence had been taken into consideration and the
material evidence had been ignored.
5. According to the applicant during the hearing for admission of the
appeal, the case of lack of jurisdiction of the Trial Court to try the suit
on the basis of arbitration agreement/award was also proposed to be a
substantial question of law in the memo of appeal besides the
appreciation of evidence on substantial and material questions being
perverse had been fully disclosed in the memo of appeal.
6. According to the applicant the aforesaid facts and questions escaped
the notice of the Court while framing substantial questions of law
making it necessary for the applicant to maintain the instant
application for framing of following further substantial questions of
law for adjudication in the appeal: -
i. That there is perversity writ large in appreciation of evidence
in regard to non-joinder of necessary parties which is fatal to
the suit.
ii. That material evidence has been ignored in deciding the issue
of limitation and while evidence which is inadmissible has
been considered including edicts issued by the Militant
Organization while deciding the material questions.
iii. That contesting respondents being out of possession cannot
maintain the suit in the present form.
iv. That the market value of the property is admittedly beyond
the pecuniary jurisdiction of the Court, which requires a suit
for possession to be valued for purposes of decree for
possession on the market value. The decree passed by the
appellate Court is, therefore, a nullity.
7. It is being further stated by the applicant that Section 103 CPC
enables the High Court to determine any issue of fact which had been
not determined by the Courts below as the issues of limitation, non-
joinder of necessary parties and jurisdiction of the Court have been
wrongly decided by the Appellate Court despite the fact that there was
not only evidence but admissions of the opposite party on these
questions and that for advancement of justice, final and effectual
adjudication of the case all these issues require to be framed as
substantial questions of law.
8. Per contra the application is being resisted and opposed by the
respondents non-applicants 1 to 5 in their objections filed to the
application wherein it is being, inter alia, stated that application is
grossly misconceived and not maintainable.
9. It is further stated in the objections that the applicant had stated as
many as 16 questions to be framed as substantial questions of law in
the memo of appeal including those which are sought to be framed
through the memo of the instant application now and that non framing
of the said questions earlier by this Court as substantial questions of
law is not legally permissible, more so in view of the fact that the
counsel for the applicant had been heard in support of the
stated/proposed substantial questions of law and that the Court upon
consideration of the matter framed only 3 substantial questions of law
out of the proposed questions and thus as per the provisions of Section
11 CPC, this Court is debarred from framing further substantial
questions of law already having been turned down by this Court in
terms of order dated 24.08.2017 at the instance of the applicant.
Heard learned counsel for the parties and perused the record.
10. Before adverting to the instant application a reference to Section 100
and 103 CPC become imperative hereunder: -
Section 100 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."
Section 103 reads as under: -
103. Power of High Court to determine issue of fact.
In any second appeal, the High Court may, if the evidence on the record is
sufficient, determine any issue necessary for the disposal of the appeal, -
(a) which has not been determined by the lower Appellate Court or both
by the Court of first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such Court or Courts reason of
a decision on such question of law as is referred to in section 100.
11. A plain reading of both the Section 100 would suggest that it restricts
the jurisdiction of the High Court to hear a second appeal only on
substantial question of law involved in the case and an obligation is
cast on the appellant to precisely state in the memorandum of appeal
the substantial question of law which the appellant proposes to urge
before the High Court and upon satisfaction of the High Court that a
substantial question of law is involved in the case, such question has
then to be formulated by the High Court. Such question or questions
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 and is
substantial in nature.
A further reading of the proviso appended to Sub-
Section (5) of Section 100 postulates that in spite 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 questions of
law, not earlier formulated by it is always available to the High
Court subject to two conditions namely (i) the High Court feels
satisfied that the case involves such question and (ii) the High
Court records reasons for its such satisfaction.
The proviso to Sub-Section (5) of Section
100 is an enabling provision preserving powers of the High
Court taking second appeal for final hearing to hear the appeal
on a substantial question of law not formulated at the time of
admission of the appeal
12. It will further depend on the facts and circumstances of each case
whether a question of law is substantial one and involved in the case
or not, the paramount overall consideration being the need for striking
judicious balance between the indispensable obligation to do justice at
all suggests and impelling necessity of avoiding prolongation in the
light of any lis as held by the Apex Court in case titled as "Santosh
Hazari v. Purushottam Tiwari" reported in 2001 (3) SCC 179.
13. A bare perusal of Section 103 CPC would demonstrate that the
provisions of the said Section can be invoked if specific issue is
raised, there is evidence on record sufficient to determine the issue
and in spite of evidence on record and necessity to decide the issue,
either there is default on the part of the Courts below or any of them
in deciding it or the Courts below or any of them wrongly determines
it. In such cases, the High Court is entitled to exercise its power under
Section 103 to go into the question and deciding the same on the basis
of evidence on record.
Section 103 enables the High Court in second appeal, where the
evidence on record is sufficient, to determine an issue of fact
necessary for disposal of the appeal in case the lower appellate Court
has not determined that issue of fact or it has determined that issue
wrongly by reason of any illegality, omission, error or defect such as
is referred to in Sub-Section 1 of Section 100.
14. Thus a conjoint reading of the above provisions would manifestly
demonstrate that this Court is vested with the power to exercise its
jurisdiction to hear a second appeal not only on the substantial
questions framed by it but also those which though not framed yet in
the opinion of the Court arises as involved in the case and is/are
substantial in nature. The only sine qua non for exercising such power
be it under proviso appended to Sub-Section (5) of
Section 100 or Section 103 CPC is that such any other substantial
question requires to be framed and adjudicated upon at the time of
hearing of the appeal.
15. The contention of the counsel for the non-applicant that this Court is
precluded from framing any further substantial questions of law from
amongst the questions having been stated/proposed by the applicant in
view of aforesaid legal position is misplaced and legally not
sustainable thus pales into insignificance, in view of the principle of
law laid down by the Apex Court in the case titled as of "Santosh
Hazari v. Purushottam Tiwari", that whether a question of law is
substantial one and involved in the case or not the paramount
overall consideration being the need for striking a judicious balance
between the indispensable obligation to do justice at all stages and
impelling necessity of avoiding prolongation in the life of any lis.
16. Having regard to what has been observed, considered and analyzed
hereinabove, the application requires to be considered at the time of
hearing of the appeal. Ordered accordingly w
( Javed Iqbal Wani)
Judge
SRINAGAR
03.12.2021
"Junaid"
Whether the order is reportable? Yes/No.
