State of Kerala Vs. Puthenkavu N.S.S. Karayogam & Anr.
EmailAppeal: Civil Appeal No. 3441 of 2001
(Arising out of SLP (Civil) No. 17526 of 1999)
(Arising out of SLP (Civil) No. 17526 of 1999)
Petitioner: State of Kerala
Respondent: Puthenkavu N.S.S. Karayogam & Anr.
Apeal: Civil Appeal No. 3441 of 2001
(Arising out of SLP (Civil) No. 17526 of 1999)
(Arising out of SLP (Civil) No. 17526 of 1999)
Judges: K.T. THOMAS & R.P. SETHI, JJ.
Date of Judgment: Jan 05, 2001
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Section 100 – Second appeal – Concurrent findings by lower courts – High Court in second appeal reversing the judgment and granting injunction – No substantial question of law formulated. Held that judgment is set aside and matter is remitted for fresh decision. (Para 5)
JUDGEMENT:
ORDER
Civil Appeal No. 3441 of 2001
1. Delay condoned.
2. Leave granted.
3. The impugned judgment was rendered by a learned Single Judge of the High Court of Kerala in a second appeal. Respondent filed a suit for declaration of title and injunction restraining the defendant from constructing any building in the open space al-leged to be abutting a temple. The trial court dismissed the suit. The first Appellate Court confirmed the judgment and de-cree passed by the trial court and dismissed the appeal. But the High Court while exercising jurisdiction under Section 100 of the Code of Civil Procedure interfered with the concurrent findings on facts and granted a perpetual injunction restraining the defendant and the local authorities of the State of Kerala from putting up any fresh construction in the suit property. The learned Single Judge issued a mandatory injunction directing the defendant to preserve the suit property as a maidan to be used for the purposes of the temple. It was further ordered that defendant. State of Kerala is permitted only to complete the construction of the record room of the village office at the southern western corner of the maidan.
4. It is the said judgment of the learned Single Judge which the State of Kerala has now challenged in the appeal.
5. Both sides have advanced several contentions in the appeal petition as also in the counter-affidavit filed. We refrain from expressing any opinion on the merits of the case as we propose to remit the second appeal for disposal afresh. We have noted that the learned Single Judge has not formulated any question of law, much less any substantial question of law, which alone would have clothed the High Court with jurisdiction under Section 100 of the CPC to deal with a second appeal. This Court has stated time and again that unless the High Court is satisfied that there is a substantial question of law, jurisdiction for second appeal cannot be exercised. It is unnecessary to cite the authorities on that aspect as it has now become well-nigh settled. Both sides agreed that no substantial question of law has been formulated by the learned Single Judge. If so the learned Single Judge ought to have proceeded further.
6. We, therefore, set aside the impugned judgment. Learned Counsel for the respondent submits that substantial question of law can be discerned from the materials. He pleaded for a chance to formulate such question of law. In the interest of justice, we feel that the second appeal can be disposed of by the High Court afresh after affording a reasonable opportunity to both sides. If any question of law could be so discerned it has then to be decided whether it is substantial enough for acquiring jurisdic-tion under Section 100 of the CPC.
7. With these observations this appeal is disposed of and the second appeal is remitted to the High Court for fresh disposal.
Special Leave Petition (C) No. CC 3388 of 2001
8. Vadavucode-Puthencruz Grama Panchayat got itself impleaded as a party and made a bid to file a special leave petition in challenge of the same judgment which we set aside. In view of the Judgment we now pronounce, it is unnecessary to consider the special leave petition sought to be filed by the said Panchayat. However, we permit the said Panchayat to move the High Court for getting itself impleaded in the second appeal.
9. Mr. E.M.S. Anam, learned Counsel for the petitioner – Vadavu-code-Puthencruz Grama Panchayat submitted that pursuant to the impugned order learned Single Judge had passed consequential order and he pleads that this Court may interfere with the said consequential orders also. We find it unnecessary because when once the main impugned order is set aside any other consequential order made pursuant to the same would automatically go.
10. With these observations this matter is disposed of.
Civil Appeal No. 3441 of 2001
1. Delay condoned.
2. Leave granted.
3. The impugned judgment was rendered by a learned Single Judge of the High Court of Kerala in a second appeal. Respondent filed a suit for declaration of title and injunction restraining the defendant from constructing any building in the open space al-leged to be abutting a temple. The trial court dismissed the suit. The first Appellate Court confirmed the judgment and de-cree passed by the trial court and dismissed the appeal. But the High Court while exercising jurisdiction under Section 100 of the Code of Civil Procedure interfered with the concurrent findings on facts and granted a perpetual injunction restraining the defendant and the local authorities of the State of Kerala from putting up any fresh construction in the suit property. The learned Single Judge issued a mandatory injunction directing the defendant to preserve the suit property as a maidan to be used for the purposes of the temple. It was further ordered that defendant. State of Kerala is permitted only to complete the construction of the record room of the village office at the southern western corner of the maidan.
4. It is the said judgment of the learned Single Judge which the State of Kerala has now challenged in the appeal.
5. Both sides have advanced several contentions in the appeal petition as also in the counter-affidavit filed. We refrain from expressing any opinion on the merits of the case as we propose to remit the second appeal for disposal afresh. We have noted that the learned Single Judge has not formulated any question of law, much less any substantial question of law, which alone would have clothed the High Court with jurisdiction under Section 100 of the CPC to deal with a second appeal. This Court has stated time and again that unless the High Court is satisfied that there is a substantial question of law, jurisdiction for second appeal cannot be exercised. It is unnecessary to cite the authorities on that aspect as it has now become well-nigh settled. Both sides agreed that no substantial question of law has been formulated by the learned Single Judge. If so the learned Single Judge ought to have proceeded further.
6. We, therefore, set aside the impugned judgment. Learned Counsel for the respondent submits that substantial question of law can be discerned from the materials. He pleaded for a chance to formulate such question of law. In the interest of justice, we feel that the second appeal can be disposed of by the High Court afresh after affording a reasonable opportunity to both sides. If any question of law could be so discerned it has then to be decided whether it is substantial enough for acquiring jurisdic-tion under Section 100 of the CPC.
7. With these observations this appeal is disposed of and the second appeal is remitted to the High Court for fresh disposal.
Special Leave Petition (C) No. CC 3388 of 2001
8. Vadavucode-Puthencruz Grama Panchayat got itself impleaded as a party and made a bid to file a special leave petition in challenge of the same judgment which we set aside. In view of the Judgment we now pronounce, it is unnecessary to consider the special leave petition sought to be filed by the said Panchayat. However, we permit the said Panchayat to move the High Court for getting itself impleaded in the second appeal.
9. Mr. E.M.S. Anam, learned Counsel for the petitioner – Vadavu-code-Puthencruz Grama Panchayat submitted that pursuant to the impugned order learned Single Judge had passed consequential order and he pleads that this Court may interfere with the said consequential orders also. We find it unnecessary because when once the main impugned order is set aside any other consequential order made pursuant to the same would automatically go.
10. With these observations this matter is disposed of.
