SUPREME COURT CLARIFIES THE SCOPE OF PROVISIONS OF ‘SECOND APPEAL’ IN THE STATE OF PUNJAB AND HARYANA
A two Judge Bench of the Supreme Court comprising of Justice Abhay S. Oka and Justice Sanjay Karol passed a Judgment dated 24-07-2023 in the matter of Gurbachan Singh (Dead) Through LRs Vs Gurcharan Singh (Dead) Through LRs, Civil Appeal Nos.10556-10558 of 2010 and made observations regarding the scope of ‘second appeal’ in the State of Punjab and Haryana.
i) In the present case, two brothers, namely, Faqir Singh and Gurbachan Singh inherited certain property from their father, Suchet Singh (Deceased-Father) who died intestate in 1942.
ii) One of the brothers, Faqir Singh sold off a portion of the said inherited property to one, Gurcharan Singh (Respondent-Buyer) vide Sale Deed dated 19-12-1978 for a sale consideration of Rs. 6000/-.
iii) Thereafter, the Buyer was put in possession of such land, however, the same was forcibly taken away from him by the Appellant-Gurbachan Singh on the ground that his brother, Faqir Singh did not have exclusive title or possession over the inherited property (Suit Property) and hence, he could not have sold any part of it.
iv) Aggrieved, the Respondent-Buyer filed Civil Suit No. 186 of 1981 before the Ld. Sub-Judge 1st Class, Jalandhar (Trial Court) seeking possession of the part of the Suit Property purchased from Faqir Singh. The Ld. Trial Court passed a Judgment dated 24-09-1981 in favor of the Appellant-Gurbachan Singh.
v) Aggrieved, the Respondent-Buyer filed Civil Appeal No. 248 of 1981 before the Ld. Additional District Judge, Jalandhar (1st Appellate Court). The 1st Appellate Court passed a Judgment dated 01-08-1983 and upheld the Trial Court Order dated 24-09-1981 on the ground that there is no evidence / document / revenue record to show that Faqir Singh allegedly obtained title to any part of the Suit Property in a family partition during the lifetime of his Deceased-Father. Hence, as Faqir Singh’s exclusive title to the Suit Property was not established, thus, he could not have passed on the title over the Suit Property or any portion of it to the Respondent-Buyer.
vi) Aggrieved, the Respondent-Buyer filed Civil Regular Second Appeal No. 283 of 1984 before the Hon’ble Punjab and Haryana High Court (High Court). The High Court passed a Judgment dated 18-02-2010, i.e. nearly 25 years later, and overturned the Trial Court Order dated 24-09-1981 and the 1st Appellate Court Order dated 01-08-1983, on the grounds that (a) there was admission by Defense Witnesses that the Deceased-Father had indeed partitioned the Suit Property during his lifetime, (b) and that the Respondent-Buyer had carried out construction of the portion of the Suit Property sold to him by Faqir Singh and that the Respondent-Buyer had been in possession of such land after execution of the Sale Deed.
vii) Aggrieved, the Appellant filed a Review in Regular Second Appeal bearing RA-RS-42-C of 2010and Civil Misc. No.6287-C of 2010 before the High Court, which upheld the High Court Order dated 18-02-2010, vide Judgment dated 28-05-2010.
Supreme Court Observations
Aggrieved by the High Court Orders dated 18-02-2010 and 28-05-2010, the Legal Representatives of the Appellant-Gurbachan Singh filed Civil Appeal Nos.10556-10558 of 2010 before the Hon’ble Supreme Court. The Apex Court passed a Judgment dated 24-07-2023 and made the following observations:
1) That as per Section 100 of the Code of Civil Procedure 1908 (CPC) (Second Appeal), a second appeal is maintainable before a High Court in the following circumstances:
i) When the lower court passes an ex-parte order, or
ii) When the case involves a substantial question of law:
a) the word ‘substantial’ as qualifying ‘question of law’ has been interpreted by the Supreme Court in earlier cases as “of having substance, essential, real, of sound worth, important or considerable.”
b) “When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law.”
c) Further, for a question of law to be ‘substantial’, it is required to be debatable and not earlier settled by Court in any precedents and such question of law ought to have material connection with the case and/or rights of the parties.
2) However, the Apex Court in earlier cases has held that the provision of second appeal under Section 100 CPC is not applicable to appeals arising out of the State of Punjab / Haryana, as this State has a special legislation in the form of Punjab Courts Act, 1918, which prevails over the general provisions of Section 100 CPC.
3) Thus, the Punjab and Haryana High Court does not have to frame substantial questions of law in terms of Section 100 CPC, as Section 41 of the Punjab Courts Act (Second Appeal) provides other grounds on which second appeal in maintainable inter alia when the order is contrary to law / custom having the force of law, when the order has failed to determine any material issue of law etc, or when the lower court has passed an ex-parte order, etc.
4) Hence, the Bench held that, in the present case, the High Court Order passed in Second Appeal cannot be faulted on the ground that the High Court did not frame substantial question(s) of law in terms of Section 100 CPC.
5) That the High Court based its decision on evidence and testimonies of the Defense Witnesses that the Deceased Father had partitioned the Suit Property during his lifetime, hence, the title in respect of the specific portion of the Suit Property is deemed to have rightly flown from Faqir Singh to the Respondent-Buyer. Further, such material evidence was ignored or overlooked by the Trial Court and the 1st Appellate Court, thus, the High Court rightly set aside the lower Courts’ Orders.
Therefore, based on the aforesaid observations, the Supreme Court held that the High Court Order was based on material evidence and testimony of the Defense Witnesses, which was overlooked by the lower Courts, thereby, warranting High Court’s intervention in Second Appeal. As a result, the Appeals filed by the Legal Representatives of the Appellant-Gurbachan Singh were dismissed and the High Court Orders dated 18-02-2010 and 28-05-2010 were upheld that set aside the Trial Court Order dated 24-09-1981 and the 1st Appellate Court Order dated 01-08-1983.
Under the general civil law, a second appeal has to be dealt with as per Section 100 of the Code of Civil Procedure 1908 (CPC). This Section restricts the power of the High Court while deciding a second appeal limiting it only to look into a substantial question of law. The law does not permit the High Court to get into the facts of the case. The appeal that is filed as a second appeal must formulate the question of law on which the High Court will hear the parties and decide the case.
The Indian Lawyer
Sushila Ram Varma
The Indian Lawyer
 Section 100 CPC. 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.