Misc. Civil Application No.629 of 2014,Second Appeal No.110 of 2011

23rd December, 2014.

Petitioner Counsel: Mr. K.H. DESHPANDE, Sr. Adv. a/w. Mr. A.C. DHARMADHIKARI
Respondent Counsel: Dr R.S. SUNDARAM

Cases Cited:
Shiv Cotex Vs. Tirgun Auto Plast Pvt.Ltd., 2011 ALL SCR 2417=(2011) 9 SCC 678 [Para 4,10]
Nune Prasad Vs. Nune Ramkrishna, 2008 ALL SCR 2354=(2008) 8 SCC 258 [Para 4,10]
State Bank of India Vs. S.N.Goyal, 2008 ALL SCR 2139=(2008) 8 SCC 92 [Para 4,10]
State of W.B. Vs. Kamal Sengupta, (2008) 8 SCC 612 [Para 6,16]
SPANCO Ltd. Vs. A2Z M & E Services Ltd., 2010(6) ALL MR 572=2010 (7) Mh.L.J. [Para 6,16]
Chinnaji Vs. Nanaji, 2011 (1) Mh.L.J. 287 [Para 6,16]
Executive Engineer, L.W.P.D. Vs. Vasant, 2009(4) ALL MR 594=2009 (5) Mh.L.J. 733 [Para 6,16]
Chadat Singh Vs. Bahadur Ram, 2004(5) ALL MR 968 (S.C.)=(2004) 6 SCC 359 [Para 6]
Malthesh Gudda Pooja Vs. State of Karnataka, (2011) 15 SCC 330 [Para 7,18]
Kshitish Chandra Purkait Vs. Santosh Kumar Purkait, (1997) 5 SCC 438 [Para 11]
Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar, 1999(3) ALL MR 467 (S.C.)=(1999) 3 SCC 722 [Para 11]
Kanai Lal Garari Vs. Murari Ganguly, (1999) 6 SCC 35 [Para 11]
Corpn.of City of Bangalore Vs. Syed Iqbal Hussain, (2005) 9 SCC 362 [Para 11]
K.K.Kannan Vs. Koolivathukkal Karikkan Mandi, (2010) 2 SCC 239 [Para 11]
Amar Singh Vs. Dalip Singh, (2012) 13 SCC 405 [Para 11,12]
Lily Thomas Vs. Union of India, 2000(3) ALL MR 251 (S.C.)=(2000) 6 SCC 224 [Para 15]

JUDGMENT

JUDGMENT :- Heard.

2. The issue that arises for consideration in this application for review is whether failure to formulate a substantial question of law while deciding the second appeal and reversing the decree as passed can be said to be an error apparent on the face of the record or whether the same is merely an erroneous decision that can only be corrected in appeal.

3. The facts that are relevant for adjudication of the present application are that the applicants are the respondents in Second Appeal No.110/2011. In aforesaid appeal, the judgment dated 18-2-2008 passed by the first appellate Court was under challenge. By order dated 8-4-2014, the second appeal was decided by holding that the trial Court as well as the first appellate Court erred in holding that the suit filed by the present applicants - original plaintiffs was not maintainable. The second appeal was accordingly allowed and said suit was dismissed as infructuous. Aforesaid order dated 8-4-2014 is thus sought to be reviewed.

4. Shri K. H. Deshpande, the learned Senior Counsel along with Shri A. C. Dharmadhikari, the learned Counsel appearing for the applicants made twofold submissions in support of the application for review. It was firstly submitted that the second appeal came to be decided without framing any substantial question of law. According to the learned Senior Counsel in view of provisions of Section 100 (4) of the Code of Civil Procedure (for short the Code), it was mandatory to formulate a substantial question of law before deciding the second appeal. Attention was invited to the order dated 3-3-2014 in which it was observed that the appellants in the second appeal were called upon to show that a substantial question of law arose in the appeal. It was submitted that no substantial question of law was formulated and the second appeal came to be decided in absence of any such substantial question of law. According to the learned Senior Counsel, aforesaid course was contrary to the law as laid down by the Supreme Court of India in various decisions. In support of said submission, reliance was placed on the following judgments:

A. (2011) 9 SCC 678 : [2011 ALL SCR 2417] (Shiv Cotex vs.Tirgun Auto Plast Pvt.Ltd.)

B. (2008) 8 SCC 258 : [2008 ALL SCR 2354] (Nune Prasad vs. Nune Ramkrishna)

C. (2008) 8 SCC 92 : [2008 ALL SCR 2139] (State Bank of India vs. S.N.Goyal)

It was then submitted that on account of non-formulation of any substantial question of law, the respondents in the second appeal were unable to point out that no such substantial question of law arose in the second appeal. It was, therefore, submitted that as there was failure to formulate a substantial question of law, the same amounted to an error apparent on the face of the record and hence, said order deserves to be reviewed.

5. It was then submitted that the order dated 8-4-2014 records that said order was passed by consent. According to the learned Senior Counsel, no consent of any nature whatsoever was given by the respondents for passing said order. It was submitted that as there was a decree in favour of the respondents, it could not be imagined that they could have consented to having the same set aside without any contest. It was, therefore, submitted that as the Court while passing the order dated 8-4-2014 had recorded consent of the respondents when in fact no such consent was given, the said order deserved to be reviewed.

6. Dr. R. S. Sundaram, the learned Counsel appearing for the non-applicants opposed aforesaid application. According to him, the second appeal was decided after formulating a substantial question of law. He submitted that the same was evident on reading the order dated 8-4-2014.According to the learned Counsel, in the memorandum of appeal, four substantial questions of law had been raised and the appeal came to be decided in terms of substantial question as stated in Ground A. It was submitted that it was not mandatory to expressly formulate any substantial question of law in the judgment itself and if it could be demonstrated that the appeal had been decided by considering such substantial question of law, then no fault could be found with the impugned judgment. He further submitted that failure to formulate any substantial question of law at the most would be an erroneous decision that could be corrected in appeal. According to him, the same would not amount to an error apparent on the face of the record. He, therefore, submitted that there was no ground made out to review the aforesaid order. In support of said submissions, the learned Counsel placed reliance on the following judgments:

A. (2008) 8 SCC 612 (State of W.B. Vs. Kamal Sengupta)

B. 2010 (7) Mh.L.J. : [2010(6) ALL MR 572] (SPANCO Ltd. Vs. A2Z M & E Services Ltd.)

C. 2011 (1) Mh.L.J. 287 (Chinnaji Vs. Nanaji)

D. 2009 (5) Mh.L.J. 733 : [2009(4) ALL MR 594] (Executive Engineer, L.W.P.D. vs.Vasant)

E. (2004) 6 SCC 359 : [2004(5) ALL MR 968 (S.C.)] (Chadat Singh Vs. Bahadur Ram)

F. (2008) 8 SCC 612 (State of W.B. Vs. Kamal Sengupta)

7. On the second aspect, it was submitted that the Court had rightly recorded the consent of the parties in the order dated 8-4-2014. Said order was passed after hearing both parties at length. He, therefore, submitted that the plea as taken by the applicants that there was no consent for said order could not be accepted. He further submitted that as the question whether consent was given or not arises, said question could be decided by the same learned Judge who had passed aforesaid order. Relying upon decision in Malthesh Gudda Pooja Vs. State of Karnataka, reported at (2011) 15 SCC 330, it was submitted that it was possible to place application for review before the same learned Judge to resolve the issue as to whether consent was actually given or not. He, therefore, sought dismissal of the application for review.

8. The arguments as canvassed would have to be appreciated after taking into account initial order dated 3-3-2014 that was passed in the second appeal. Said order reads as under:

"Earlier order stands withdrawn.

This appeal shall be heard on merits for admission on next date.

Disposal of this appeal does not depend on pendency of the connected first appeal before the District Judge.

The appellant should show that there is substantial question of law arises in the appeal.

Stand over to 18.3.2014."

9. Thereafter the second appeal came to be decided by order dated 8-4-2014. Said order reads as under:

"This second appeal has a checkered history. The appellant-Union of India initiated action for eviction under Section 5-A of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (in short, "the Act") against respondent No.1 asserting that the respondent No.1 is occupying land belonging to Government of India. As soon as the notice was served on the respondent No.1 they started this action. They filed this suit for declaration that the notice issued against them was bad in law and for injunction not to interfere in their possession. The suit was opposed on all counts. Unfortunately, the Courts below held that the suit was maintainable. Because of the pendency of the suit, proposed action under Section 5-A of the Act was not taken.

On the earlier occasion, the parties litigated before the Revenue Authority and claim of title of Union of India was rejected. At such stage ordinarily a substantive suit for declaration of title and recovery of possession ought to have been filed by the Union of India, but the notice under Section 5-A of the Act was given in 1994. In the year 1997, the Union of India also filed a substantive suit for possession on the basis of title. The moment such suit was filed, the purpose of filing of this suit had come to an end and this litigation should have concluded.

In view of filing of suit in 1997, the notice challenged in this litigation has practically become infructuous. The Union of India is no longer interested in pursuing action under Section 5-A of the Act against respondent No.1.

Nonetheless, a lot of evidence was recorded in the present suit in respect of title of both the parties. This evidence can be read in substantive suit filed by the appellant-Union of India, which is still pending in first appeal.

I am of the view that Courts below erred in holding that the suit was maintainable. In view of Section 15 of the Act, the suit was not maintainable. The respondent No.1 could not have filed the suit for challenging the validity of the notice in question. However, this has now become an academic question. As said above, since the Union of India has filed a substantive suit, the purpose of filing of this suit has come to an end and, therefore, the appeal should formally be allowed and the suit should be dismissed as infructuous.

As said above, the parties are permitted to use evidence recorded in this suit for deciding the First Appeal No. 100697/2012 which is pending in the District Court, Nagpur.

It is made clear that the finding recorded in this suit shall no longer be relevant for deciding the First Appeal No. 100697/2012.

A plea of res judicata is not permitted."

10. To consider whether formulation of a substantial question of law is a mandatory requirement and whether failure to do so results in an error apparent on the face of record or that the same is an erroneous decision, it would be necessary to refer to the decisions cited by the parties. In Shiv Cotex, [2011 ALL SCR 2417] (Supra), the Supreme Court observed in para 11 that formulation of substantial question of law is a must before the second appeal is heard and finally disposed of by the High Court. If the second appeal is heard and the decree appealed against is reversed without formulating a substantial question of law, then such judgment is illegal. Similar view has been taken in Nune Prasad and others, [2008 ALL SCR 2354] (supra). In State Bank of India, [2008 ALL SCR 2139] (supra) in para 15, the Supreme Court referred to some oft repeated errors. One of them was failure to consider and formulate relevant and appropriate substantial questions of law involved in the second appeal.

11. As regards necessity to formulate a substantial question of law in terms of Section 100(4) of the Code in Kshitish Chandra Purkait vs. Santosh Kumar Purkait, reported at (1997) 5 SCC 438 the Supreme Court in paragraph 10 of its judgment observed thus :

"10...... Proceeding to hear the appeal without formulating the substantial question of law involved in the appeal is illegal and is an abnegation or abdication of the duty cast on court; and even after the formulation of the substantial question of law, if a fair or proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice. The above parameters within which the High Court has to exercise its jurisdiction under Section 100 CPC should always be borne in mind. ..."

Similarly, in Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar, reported at (1999) 3 SCC 722 : [1999(3) ALL MR 467 (S.C.)] in paragraph 3 of the said judgment it has been observed thus :

"3... The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. ..."

Similarly, in Kanai Lal Garari Vs. Murari Ganguly, reported at (1999) 6 SCC 35 it was held that under Section 100 of the Code, the High Court is required to frame a substantial question of law at the beginning of the hearing itself and / or if such substantial question of law is raised in the memorandum of appeal then it is obligatory upon the High Court to hear the learned counsel for the parties on such substantial question of law.

In Corpn.of City of Bangalore Vs. Syed Iqbal Hussain, reported at (2005) 9 SCC 362 in paragraph 10 it has been observed thus:

"10. It is not in dispute that the High Court at the time of admission of the second appeal did not formulate any substantial question of law. Without doing so it proceeded to hear the learned advocates for the parties and upon noticing the respective pleadings and contentions of the parties purported to have formulated two points which according to it arose for its determination. Having regard to the wellsettled principles of law, as noticed hereinbefore, the High Court being statutorily obligated to formulate a substantial question of law at the time of admission of the second appeal, it was legally impermissible for it to formulate such purported questions while determining the issue in the judgment itself in relation whereto the respondent might not have any adequate notice. ...."

In K.K. Kannan v. Koolivathukkal Karikkan Mandi, reported at (2010) 2 SCC 239, in paragraphs 6 and 7 it has been observed thus :

"6. ..... Mere reference to the grounds as stated in the memorandum of second appeal would not satisfy the mandates prescribed in Section 100 more particularly when the High Court allowed the second appeal setting aside concurrent decisions of the courts below.

7. In order to fulfil the conditions mentioned in Section 100 if the High Court is satisfied that the substantial question of law is involved, it is to formulate that question, then hear the second appeal on the question so formulated. In the event of formulating such question, it is also the duty of the Court to permit the respondent to argue that the case does not involve any such question. In the case on hand, such recourse has not been adopted by the High Court."

In recent decision in Amar Singh Vs. Dalip Singh, reported at (2012) 13 SCC 405 the modalities to be followed while framing substantial question of law has been considered and in paragraphs 21 to 23 it has been observed thus :

"21. A critical and microscopic reading of Section 100 of the Code makes its abundantly clear to us that as and when any substantial question of law is formulated by the court, then as a necessary consequence thereto, parties have to be apprised of the said questions of law and thereafter they should be given an opportunity of hearing to advance the arguments on the said questions of law.

22. To clarify the position further, we would like to give an example here. Supposing, in a memo of appeal, three substantial questions of law have been formulated, but when the matter comes up for hearing, if the learned Judge is of the opinion that additionally some more substantial questions of law would arise, then certainly he has the power to do so, but once that power is exercised, then obviously, the parties have to be apprised of the said additional substantial question/ questions of law so formulated, so that they may advance arguments on those questions of law as well.

23. The very purpose of formulation of substantial question of law is to grant an opportunity to the other side to come prepared to address on that question of law. In absence of any question of law, the counsel may not be aware as to which substantial question of law he is required to address the court. In our opinion, it is required to be formulated with an intention to cut short the lengthy arguments that may be advanced by the parties."

12. Thus, from the aforesaid law as laid down by the Supreme Court it cannot be doubted that framing of substantial question of law while considering an appeal under Section 100 of the Code is a mandatory duty cast on the Court. In fact, as observed in Amar Singh (supra) whenever any substantial question of law is formulated by the Court, then the parties have to be apprised of said question of law so as to grant an opportunity of hearing to advance arguments on said question of law.

13. The aforesaid legal position being clear it would be now necessary to consider the order of which review is sought. As noted above, on 03.03.2014 the Court had specifically put the appellant on notice that it should show that a substantial question of law arose in the appeal. The order dated 08.04.2014 reproduced herein above does not indicate that any substantial question of law was framed while deciding the appeal. Formulation of any such substantial question of law is not evident from plain reading of the aforesaid order.

14. Though it was urged on behalf of the learned counsel for the non-applicants that the substantial question of law as framed in the memorandum of appeal was considered while deciding the second appeal, it is to be noted that the requirement of law is that as and when any substantial question of law is formulated by the Court then as a necessary consequence thereof, the parties have to be apprised of said question of law and thereafter they should be given an opportunity of hearing to advance arguments on said question of law. It is, therefore, clear that the order dated 08.04.2014 does not indicate that any substantial question of law was framed or that the parties were apprised that a particular question of law arose which was being considered while deciding the appeal.

15. Having found that the Court while deciding the second appeal had not formulated any substantial question of law, the question that arises next is whether the same could be termed as an error apparent on the face of record under the provisions of Order 47 Rule 1 of the Code or that the same is merely an erroneous decision that can be corrected in appeal. If there is an error apparent on the face of the record the same constitutes a ground for review. The expression "error apparent on the face of record" has been considered in catena of decisions of the Supreme Court. In Lily Thomas Vs. Union of India, reported at (2000) 6 SCC 224 : [2000(3) ALL MR 251 (S.C.)] an error apparent on the face of the proceedings was considered to be one which is based on disregard of the provisions of law. In paragraph 58 thereof it has been observed as under :

"58.... Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words "any other sufficient reason appearing in Order 47 Rule 1 CPC" must mean "a reason sufficient on grounds at least analogous to those specified in the rule" as was held in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius. Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa this Court held that such error is an error which is a patent error and not a mere wrong decision. ...."

Thus, if there has been disregard of the provisions of law the same would constitute an error apparent on the face of the proceedings. The same would, therefore, be a ground for reviewing the order.

16. In the decision relied upon by the learned counsel for the non-applicants in State of West Bengal & others (supra) it has been observed that for detecting an apparent error the same should not require detailed examination, scrutiny and elucidation of facts. The Court while exercising the power of review cannot sit in the appeal over the judgment in question. Similar view has been taken by the Division Bench in SPANCO Ltd., [2010(6) ALL MR 572] (supra) that was also relied upon by the learned counsel for the non-applicants. In Chinnaji Nalgoba (supra) it was held that an error in relation to law cannot be corrected by way of review. Similarly, in Executive Engineer, [2009(4) ALL MR 594] (supra) it was observed that there is no review permissible on merits of the case and an erroneous judgment cannot be reviewed.

17. In the present case, after considering the order dated 03.03.2014 it is clear that the appellant had been called upon to show that a substantial question arose in the second appeal. However, without formulating any such question the second appeal came to be decided and the judgment under challenge was reversed. This has been done by disregarding the mandatory provisions of Section 100 of the Code and hence, the same would constitute an error apparent on the face of record. The aforesaid is apparent from a plain reading of the order under review. The same is obvious without even examining the facts or entering into the merits of the order. No error in relation to law is sought to be corrected. Hence, said judgments relied on behalf of the non-applicants cannot be made applicable to the case in hand. The order dated 08.04.2014 having been passed in disregard to the mandatory provisions of law, a case for reviewing the same has been made out.

18. Considering the second ground on which the review is sought, namely that the order dated 08.04.2014 records consent of the parties, though the present applicants had not given any such consent, the assertion made by the applicants of not giving any such consent has been denied by the non-applicants in their reply. There is no other material on record to gather the aspect of giving consent or otherwise. The same raises a disputed question. However, considering the fact that a case for review has been made out on account of the observations made hereinabove, it is not necessary to go into the second question as to whether there was consent given for passing order dated 08.04.2014. Even if it is assumed that the applicants had given their consent, same would not dispense with the mandatory compliance of the provisions of Section 100 of the Code. Hence, it is not necessary to consider the course that was followed in Maltesh Pooja (supra) of seeking to place the proceedings before the same learned Judge.

19. In view of the aforesaid discussion, it is clear that a case for review has been made out. Hence, the following order is passed.

i. Order dated 08.04.2014 stands recalled.

ii. The Second Appeal shall be reconsidered for admission in accordance with the provisions of Section 100 of the Code.

iii. The Miscellaneous Civil Application stands allowed in the aforesaid terms with no order as to costs.

At this stage, the learned counsel for the non-applicants prays for keeping the present order in abeyance for the period of eight weeks. Though the aforesaid request is opposed by the learned counsel for the applicants, this order is kept in abeyance for a period of eight weeks from today.

Ordered accordingly.