A bench of Justices J B Pardiwala and R Mahadevan said that as per Section 100, a high court can proceed to hear a second appeal only if the case involves a substantial question of law, implying that when the appeal is taken up for admission, it must satisfy itself that a substantial question of law is involved. Thereafter, the high court must frame such question and direct the parties to submit their arguments on such question, the court said.

 

"The scheme of the Code also enables the High Court to hear the parties on any other substantial question of law, not framed by it at the first hearing, but during the course of hearing for the reasons to be recorded. Again, if the court is not satisfied at the first hearing that the case does not involve a substantial question of law, it cannot proceed further. Once such additional question of law is framed during the course of hearing, the parties must be given opportunity to submit their arguments on the other substantial question of laws," the bench said.

 

Court also took cognizance of the fact, that in some high courts, there is a practice to order notice of motion, whereby even before an appeal is admitted, an opportunity is granted to the respondents to contest the case.

 

"In such a case, it is implied that the High Court is not satisfied prima facie with the case. Such dissatisfaction could be either for a reason that the case does not involve a substantial question of law or for a reason that in the facts of the case, the question of law, though substantial, would not warrant interference," the bench said.

 

The court added that in such cases, the high court in exercise of its power under Section 151, CPC is generally empowered to grant interim orders to preserve the subject matter of the dispute and to avoid multiplicity of proceedings.

 

"We are of the opinion, the court cannot grant any interim protection to the appellant, unless the substantial question of law is framed under Section 100 (4) or as per the Proviso," the bench said.

 

On the other hand, the bench explained, if the high court is prima facie of the view that the substantial question of law involved would not require much time for disposal, the court is bound to frame the substantial question of law at the stage of admission and then order short notice.

 

"The High Court cannot use its inherent power under Section 151 in violation of the express mandates in other provisions of the Code," the bench said.

 

Thus, the court pointed out, the law is clear that a second appeal will be maintainable before the high court, only if it is satisfied that the case involves a substantial question of law.

 

"If no substantial question of law arises, the second appeal could not have been entertained and the same ought to have been dismissed, as the jurisdiction of the High Court itself is not yet invoked," the bench said.

 

Acting on an appeal filed by U Sudheera and others, the Supreme Court set aside the Andhra Pradesh High Court's order passed in second appeal.

 

The respondent No. 1/plaintiff filed a suit before Additional Junior Civil Judge, Tirupati, for a permanent injunction against the defendants. The trial court decreed the suit in favour of the plaintiff, by judgment on February 05, 2016.

 

However, the first appellate court viz Additional District Judge, Tirupati, by judgment on November 11, 2022 allowed the appeal suit and set aside the judgment and decree passed by the trial court, after having found that the plaintiff could not have maintained a suit for bare injunction, without seeking declaration of title.

 

Challenging the same, respondent No. 1 / plaintiff filed a second appeal. After adjourning the matter on three occasions on the ground that the respondents therein were not served, the high court on the fourth occasion i.e., on September 20, 2024, granted interim relief in the form of status quo, without formulating any substantial question of law arising in the second appeal.

 

By an order on September 26, 2024, the said relief was extended further.

 

Concededly, the bench noted, in the present case, the high court, without formulating substantial questions of law, granted the interim relief by directing the parties to maintain status quo, till the next date of hearing.

 

"The said interim order was also subsequently extended. It is also pertinent to point out that all the respondents in the second appeal have not been served and notice was unserved qua Respondent Nos.4, 6 and 7 therein. Therefore, we are of the opinion that the High Court could not have passed the interim order without satisfying itself of the existence of a substantial question of law, as mandated under Section 100 CPC," the bench said.

 

The respondent No.1/plaintiff made an attempt to contend that the high court had jurisdiction to pass any interim order and the order impugned was only an ad interim arrangement to protect the interest of the subject matter of the proceedings.

 

The court, however, said the contention could not be countenanced in the facts of the case at hand.

 

"Indisputably, the High Court has jurisdiction to pass an interim order ex parte, however, it does not empower to grant ad interim relief, without examining the parties and formulating the substantial question of law involved in the second appeal as it is contrary to section 100 CPC," the bench said.

 

In the arguments, the counsel for the appellants submitted that without framing substantial question of law, an interim order could not be passed in a second appeal filed under Section 100 of the Code of Civil Procedure, 1908.

 

The counsel further submitted that the trial court decreed the suit on the presumption that the respondent No.1/plaintiff was the owner of the property on the basis of revenue records. However, it was settled law that revenue records could not be the basis for determination of ownership.

 

The counsel finally submitted that the first appellate court, on facts, decided the appeal in favour of the appellants and as such, the high court ought not to have granted an interim order merely on the basis of representation of the counsel.

 

On the opposite, the counsel for respondent/plaintiff submitted that the jurisdiction of the court is inherent to issue any ad interim / temporary order for limited period, in case of exigencies or the circumstances not covered in the scheme of Code to protect the ends of justice and to safeguard the subject matter of the proceedings.

 

Since the Code does not provide for any provision for protection of the subject matter of proceedings, when an Appeal under Order 41 Rule 5 CPC is preferred, and the substantive question of law remains to be framed yet, the inherent power of the Court under Section 151 CPC can be invoked in the interregnum to protect the subject matter, he said.

 

The counsel also said the impugned order was only in the nature of an ex parte ad interim arrangement for a limited period i.e., till the next date of hearing. It was neither creating any right nor divesting the parties of their right. That apart, it did not stay the operation of the decree, but was only in aid of preserving the subject matter of the suit and maintaining the status quo as it stood on the date of passing of the order. Therefore, the said ad interim ex parte arrangement could not be construed as interim order.

 

The counsel further submitted that as per the averments made in the plaint, the plaintiff had right and share in the suit scheduled property. Hence, the second appeal could be decided only upon perusal of the entire papers properly and the impugned order had been passed only as an interim measure to protect the interest of the parties. He maintained there was no infirmity or illegality in the order so passed by the high court.