MD. TOYJAL HOQUE Vs. MD. NAJAT ALI

JUDGEMENT

(1.) Mr. K K Dey, learned counsel appearing on behalf of the appellants.

(2.) This appeal under Sec. 100 is directed against the concurrent finding of facts whereby the Appellate Court by the judgment and decree dtd. 18/8/2021 in Title Appeal No. 26/2019 had affirmed the judgment and decree passed by the Trial Court dtd. 27/5/2019 in Title Suit No. 06/2016.

(3.) Before deciding the contentions raised by the counsel of the appellants, it would be necessary to look into the jurisdiction of this Court in exercise of the power under Sec. 100 of the CPC. It is relevant herein to mention that the instant appeal arises out of a concurrent findings of facts. Sec. 100 of the CPC permits the High Court to exercise the jurisdiction against an appellate decree only when there arises a substantial question of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial question of law' means not only 'substantial question of law' of general importance, but also a substantial question of law arising in a case as between the parties. In the context of Sec. 100 of the CPC, any question of law, which affects the final decision in a case is a 'substantial question of law' as between the parties. A question of law which arises incidentally or collaterally having no bearing in the final outcome will not be a substantial question of law. Where there is a clear and settled enunciation of a "question of law", it cannot be said that the case involves a 'substantial question of law'. It is said that a substantial question of law arises when a question of law, which is not finally settled, arises for consideration in the case but this statement has to be understood in the correct perspective meaning thereby that where there is a clear enunciation of law and the Lower Court has followed or rigidly applied, such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law, but the Lower Court had ignored or misinterpreted or misapplied the same, and the correct application of the law as declared or enunciated by the Supreme Court or this Court would have led to a different decision, the appeal would involve a 'substantial question of law' as between the parties. Even where there is an enunciation of law by the Supreme Court or this Court and the same has been followed by the Lower Court, if the appellant is able to persuade this Court i.e. that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two different viewpoints, it can be said that a substantial question of law arises for consideration. In that view of the matter, there cannot, therefore be a straight jacket definition as to when a substantial question of law arises in a case, it shall depend on the facts of each case along with the decision rendered by the Courts below.