CHINTAMAN NAMDEV PATIL (DEAD)versusSUKHDEV NAMDEV PATIL & ANR.

                   [2015] 12 S.C.R. 823


          CHINTAMAN NAMDEV PATIL (DEAD)                       A
                             v.
            SUKHDEV NAMDEV PATIL&ANR.
                   (Civil Appeal No.7991OF2015)
                                                               B
                   September 28, 2015
              [J. CHELAMESWAR AND
            ABHAY MANOHAR SAPRE, JJ.]
      Code of Civil Procedure, 1908: s.100; Or.20 r.4(2), Or.41 c
r.31- Second appeal- Substantial question of law- Held:
The impugned order shows that the High Court neither set
out the case of the parties from their pleadings properly nor
mentioned the findings recorded by the trial court and nor of
the first appellate court - High Court also did not examine D
the case in the context of legal provisions governing the
issues and nor dealt with any submissions urged by the
parties much less to record categorical finding on the
questions framed - On the contrary, High Court formulated
anotherquestion as the only question arising in the case for E
decision which was not formulated as substantial question of
law along with two questions already framed- Matter remitted
to High Court for consideration afresh.

    Allowing the appeal and remitting the matter to the        F
High Court, the Court

     HELD: 1. It was legally obligatory upon the High
Court to properly set out the case of the parties, findings
recorded by the Trial Court and the first Appellate Court, G
arguments of the parties on the questions of law framed
and then answer the questions framed in the light of law
applicable to the controversy involved by giving its
reasoning. Or. 20 Rule 4(2) and Rule 5 r/w. Or. 41 Rule 31
provides for this requirement. [Para 18) [828-E-F]          H
                            823
824        SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A          Santosh Hazaro v. Purushottam Tiwari
           (deceased) by LRs. (2001) 3SCC179: 2001 (1)
           SCR 948 - relied on.
                          Case Law Reference
B 2001 (1) SCR 948                relied on.            Para 19
           CIVIL APPELLATE JURISIDCTION: Civil Appeal No.
      7991 of2015

       From the Judgment and Order dated 25.02.2014 of the
C High Court of Judicature of Bombay Bench atAurangabad in
  Second Appeal No. 332 of 2007

           Nishant Ramakantrao Katneshwakar, Advocate, for the
      Appellant.
D
           Rajesh lnamdar, Davadatt Kamat, Javedur Rahman, Rauf
      Rahim, Advocate, for the Respondents.

           The Judgment of the Court was delivered by

 E         ABHAY MANOHAR SAPRE, J.

           1. Leave granted.

        2. This appeal is filed by the plaintiff against the judgment
 F and order dated 25.02.2014 passed by the High Court of
   Judicature of Bombay Bench atAurangabad in Second Appeal
   No. 332 of 2007 which arises out of judgment and order dated
   11.04.2007 passed by the District Judge-3, Aurabgabad in
   Regular Civil Appeal No. 43 of 2005.
 G         3. By impugned judgment, the High Court allowed the
      second appeal filed by the respondents herein.

          4. In order to appreciate the issues involved in the appeal
   which lie in a narrow compass, few relevant facts need mention
 H infra.
   CHINTAMAN NAM DEV PATIL (DEAD) v. SUKHDEV                      825
    NAMDEV PATIL [ABHAY MANOHAR SAPRE, J.]

      5. The appellant (plaintiff) filed a suit against the A
respondents (defendants) herein in the Court of Civil Judge
Qunior Division) Soyagaon being Regular Civil Suit No. 14 of
2001 for declaration and perpetual injunction. The appellant
sought a declaration that he is the owner of the suit land bearing
no Gat No. 9 admeasuring 4 H 90 R situated at Village B
Ghosala, Taluka Soegaon, Dist. Aurangabad. The appellant
also sought injunction against the respondents restraining them
from interfering in his possession. The respondents joined
issues and contested the suit by filing written statement. The
Trial Court framed several issues arising out of the pleadings C
and parties led their evidence. The Trial Court vide judgment/
decree dated 14.12.2004 dismissed the suit.

     6. The appellant, felt aggrieved, filed appeal being R.C.A.
No. 43 of 2005 before the District Judge-3, Aurangabad. Vide D
judgment/decree dated 11.04.2007, the first appellate Court
allowed the appeal and decreed the appellant's suit by granting
the decree as prayed by him.

     7. The respondents, felt aggrieved, filed second appeal      E
being S.A. No. 332 of 2007 before the High Court.

      8. The High Court admitted the second appeal on two
substantial questions of law arising in the case. By impugned
judgment, the High Court allowed the second appeal and in         F
consequence dismissed the appellant's suit. It is against this
judgment, the plaintiff has filed this appeal by way of special
leave.

     9. Heard learned couhsel for the parties.
                                                                  G
     10. Learned counsel appearing for the appellant while
assailing the legality and correctness of the impugned order
made twofold submissions. In the first place, learned counsel
contended that the High Court while allowing the appeal did
                                                                  H
826        SUPRE!M~:~.IJ~J.HEPORTS ..           [2015] 12 S ..C.R.


A not give any reason and nor dealt with the substantial questions
  of law framed much less answered them on their merits thereby
  committed a jurisdictional error in allowing respondents appeal
  which resulted in dismissal of appellants suit. It was his
  submission that in the absence of any discussion much less
B finding on the two substantial questions of law framed, the High
  Court failed to exercise its second appellate jurisdiction under
  Section 100 of the Code of Civil Procedure, 1908 (hereinafter
  referred to as "the Code") ih its proper perspective and hence
  impugned judgment being unsustainable, deserves to be set
C aside by remanding the case to the High Court for deciding
  the second appeal afresh on merits in accordance with law.

        11. In the second place, the learned counsel for the
   appellant contended on merits that the impugned judgment is
 D also not legally sustainable. Learned counsel then made
   attempt to point out the errors of the controversy on merits.

         12. In reply, learned counsel for the respondent supported
   the impugned judgment contending that no interference is
 E called tor in the impugned judgment.

          13. Having heard the learned counsel for the parties and
   on perusal of the record of the case, we are inclined to accept
   the first submission of the learned counsel for the appellant
 F finding force therein.

          14. It is clear that the High Court admitted the second
      appeal on following two substantial questions of law:
           "(i) Whether in the facts and circumstances of
 G         the present case, the first appellate Court was
           right in holding that the respondent No.1/
           plaintiff became exclusive owner of the suit
           land by virtue of the family arrangement
           shown in the document (Exh.101)? and that
 H
                                                  ~"'     ....'
   CHINTAMAN NAMDEV PATIL (DEAD) v. SUKHDEV                       827
    NAMDEV PATIL [ABHAY MANOHAR SAPRE, J.]

     the interpretation of the said document                      A
     (Exh.136) is properly done by the said Court?
     (ii) Whether in the facts and circumstances of
     the present case, the judgment of the first
     appellate Court is against the spirit of Order
                                                                  B
   . 41 Rule 31 of C.P.C. is unsustainable and
     deserves to be interfered with?"
      15. The High Court then discussed the issues in paras
5, 6 and 7 which read as under:
                                                                  c
     "5. In view of analysis of the facts mentioned above,
     the only question that is required to be decided is,
     whether plaintiff-Chintaman has fulfilled his terms
     of contract?
     6. On perusal of the evidence, I found that the              D
     finding recorded in this regard by learned Judge of
     the trial Court is correct Learned Judge of the lower
     appellate Court, however, did not record proper
     finding on the factual aspect of the case. Because           E
     of his failure to do so, the entire judgment went
     haywire. Learned counsel for the parties fairly
     admitted that at least, document Exhibit 136 is
     binding on the parties. Document 116, which is r.ot
     signed by the plaintiff-Chintaman, is not admitted           F
     by him, but in view of his admission of document
     Exhibit 136, it is clear that he admitted the
     agreement. On perusal of this agreement, it is clear
     that he had agreed to repay the entire loan
     mentioned above for getting clear title to the land          G
     Gat No. 9. He also admitted that in case of his failure
     to do so, he would accept the partition of the land
     amongst the three brothers.
     7. In view of the finding of facts that the plaintiff did
                                                                  H
828         SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A          not repay the loan amount and that he had
           committed default, he would not be able to claim .
           ownership to the entire land Gat No.9. The suit
           should, therefore, fail. The Second Appeal is
           allowed. The suit stands dismissed."
 B
           16. On perusal of the judgment it clearly shows that the
   High Court neither set out the case of the parties from their
   pleadings properly nor mentioned the findings recorded by the
   Trial Court and nor of the first appellate court. The High Court
 C also did not examine the case in the context of legal provisions
   governing the issues and nor dealt with any submissions urged
   by the parties much less to record categorical finding on the
   questions framed.

 o          17. On tt1e contrary, we notice that the High Court in para
      5 formulated another question as the only question arising in
      the case for decision which was not formulated as substantial
      question of law along with two questions already fram~d.

 E       18. In our considered opinion, it was legally obligatory
   upon the High Court to properly set out the case of the parties,
   findings recorded by the Trial Court and the first Appellate
   Court, arguments of the parties on the questions of law framed
   and then answer the questions framed in the light of law
 F apP.licable to the controversy involved by giving its reasoning.
   Order 20 Rule 4(2) and Rule 5 read with Order 41 Rule 31
   provides for this requirement.

         19. We may also consider apposite to mention that this
 G Court had the occasion to examine the scope of Section 100
   of the Code in Santosh Hazaro vs. Purushottam Tiwari
   (deceased) by LRs., [(2001) 3 SCC 179], wherein Justice
   RC. Lahoti (as His Lordship then was and later became CJI)
   speaking for the three-judge Bench explained the scope and
 H jurisdiction of the High Court while deciding the second appeal
   CHINTAMAN NAM DEV PATIL (DEAD) v. SUKHDEV                      829
    NAMDEV PATIL [ABHAY MANOHAR SAPRE, J.]

under Section 100 of the Code. The High Court, in our opinion, A
should have kept in consideration the law laid down in this
case while deciding the second appeal.

      20. We cannot, therefore, subscribe to the manner in
which the High Court cursorily decided the appeal as we find      s
that the impugned judgmerit does not satisfy the requirement
mentioned above. In such circumstances, the remand of the
case to the High Court appears to be proper.

     21. The appeal thus succE..eds and is accordingly C
allowed. The impugned judgment is set aside. The matter is
remanded to the High Court for deciding the second appeal
afresh on merits in accordance with law.

     22. We, however, make it clear that we have not examined
on the merits of the issues involved in this case and hence the D
High Court would decide the appeal without being influenced
by any observation made in this judgment.

      23. Since the case is quite old, we request the High Court
to expedite its hearing and dispose of the case preferably E
within six months.

Devika Gujral                                   Appeal allowed.