Smt Savitri Devi vs Chief Conservator Of Forest And ...
2021 Latest Caselaw 989 MP

                                    1                                      SA-478-2020
        The High Court Of Madhya Pradesh
                    SA-478-2020
    (SMT SAVITRI DEVI Vs CHIEF CONSERVATOR OF FOREST AND DIRECTOR AND OTHERS)

2
Gwalior, Dated : 23-03-2021
      Shri S.K. Shrivastava, learned counsel for the appellant.
      Shri Dheeraj Budolia, learned Panel Lawyer for the State.
      I.A.No.1764/2021, an application for urgent hearing and I.A.
No.613/2020, an application for condonation of delay in filing the appeal, are
taken up, considered and allowed for the reasons mentioned therein.

      Delay in filing this appeal is condoned.
      This Second Appeal is preferred under Section 100 of the CPC against
t h e judgment and decree dated 13/9/2020 passed by Second Additional
District Judge, Shivpuri (M.P.) in Civil Appeal No.46/2017, whereby the
judgment and decree dated 30/6/2017 passed by Additional Judge to the
Court of First Civil Judge, Class-I, District Shivpuri in Civil Suit No.2700021-
A/2015 has been reversed.
      Section 100 CPC 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 2 SA-478-2020 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."

It is observed by the Apex Court in the case of Ratanlal Bansilal Vs. Kishorilal Goenka:[AIR 1003 Cal 144] that on erroneous application of law, second appeal is maintainable if it raises a substantial question.

On perusal of record, the Court has satisfied that the substantial question of law is involved in the case and, therefore, this appeal is admitted for final hearing on the following substantial question of law:

(i) Whether document Ex.D-2 to D-6 can be relied upon in order to dismissed the suit specially when the same has been prepared in the absence of appellant?

(ii) Whether learned lower Appellant Court committed substantial error of law in allowing the appeal filed by respondent on the grounds which were not even prayed in the memo of appeal by the respondent?

Let notice of this appeal along-with I.A. No.1711/2021, an application under Order 41 Rule 5 of CPC be issued to the respondents by registered as well as ordinary modes on payment of process fee within seven working days, returnable within one month.

Meanwhile, the effect and operation of the impugned judgment and decree shall remain stayed till next date of hearing.

List this case for final hearing in due course. Certified copy as per rules.

(RAJEEV KUMAR SHRIVASTAVA) JUDGE

pwn* Pawan Kumar 2021.03.24 18:36:11 +05'30'