THE BEYOND OBITER LAW BLOG: Legal News
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The Supreme Court has set aside a judgment of the Punjab and Haryana High Court which had reversed concurrent findings of the trial court and first appellate court in a property dispute, holding that the High Court granted a relief that was never sought by the parties and failed to properly frame and consider substantial questions of law as required under Section 100 of the Code of Civil Procedure, 1908.
Section 100 of the Code of Civil Procedure permits a High Court to entertain a second appeal only when the case involves a substantial question of law, and not merely a dispute over facts or evidence already examined by the lower courts.
A Bench of Justice S.V.N. Bhatti and Justice Atul S. Chandurkar was hearing appeals filed by the legal heirs of the original plaintiff, who had succeeded before both the trial court and the first appellate court in obtaining a decree directing the removal of an encroaching wall and restraining further construction.
In brief, the dispute arose from a suit seeking a mandatory injunction for removal of an alleged encroachment and a permanent injunction against further construction. While the trial court decreed the suit in favour of the plaintiff and the first appellate court affirmed the decree, the High Court, in second appeal, set aside those findings and directed payment of compensation in lieu of removal of the structure.
The Supreme Court found that such a course was impermissible as the plaintiff had never sought compensation or damages. The Court observed:
“In the absence of any such relief sought by the original plaintiff, the decree passed in his favour could not have been set aside by the High Court by compelling his legal heirs to accept compensation that was directed to be assessed by a valuer.”
The Bench noted that the legal heirs had not consented to receiving monetary compensation and that the High Court could not substitute the relief claimed in the suit with an entirely different remedy.
Criticising the manner in which the second appeals were decided, the Court observed that although the High Court referred to certain questions raised by the defendants, it did not clearly frame or consider any substantial question of law as mandated under Section 100 CPC. The Court held:
“It is, thus, clear that without an available question of law for consideration and also by making out a new prayer, the decrees passed in favour of the original plaintiff have been set aside. The legal heirs of the plaintiff have been required to accept monetary relief for which a prayer was never made. Such course has resulted in miscarriage of justice.”
The Supreme Court further noted that once the decree in favour of the plaintiff had been set aside, there was no basis for directing the Executing Court to assess the value of the disputed wall and award compensation. According to the Court, such a direction was unsupported by any decree and was not contemplated under the execution provisions of the CPC.
The Bench also found that the High Court proceeded on an erroneous factual assumption that the trial court had treated the wall as a common wall. In reality, the trial court had ordered removal of the offending construction after finding the encroachment illegal.
Holding the High Court's approach to be legally unsustainable, the Supreme Court allowed the appeals, set aside the impugned judgment, and remitted the matter to the Punjab and Haryana High Court for fresh consideration of the second appeals in accordance with Section 100 CPC.