DAYAL SARUP Vs. OM PARKASH

JUDGEMENT

(1.) At the threshold of the hearing, Learned Counsel for the plaintiffs-respondents contended that since the memorandum of appeal does not contain the substantial questions of law as required under Section 100(3) of the Code of Civil Procedure, 1908 (for short, 'CPC') nor an application under Order 41 Rule 2 CPC has been moved in terms of Rule 10 of Chapter 14 Part B, of Volume-1 of the Rules and Orders of Punjab and Haryana High Court (hereinafter described as 'the Rules & Orders') seeking permission of this Court to amend the same so as to incorporate them before the date of hearing, it is liable to be rejected outrightly as per Rule 3 of Order 41 CPC. He also contended that the power of the Court under Section 100(5) of the CPC can also not be pressed into service so as to formulate other/ additional substantial questions of law. In support of his contentions, he placed reliance on the judgments of the co-ordinate Bench of Alok Singh, J. in R.S.A. No. 861 of 1981 Bikkar Singh and Ors. v. Jalaur Singh and Ors., 2010 158 PunLR 547 decided on 16.2.2010; R.S.A. No. 888 of 1982 - Kartar Singh and Anr. v. Tulsi LRs and Ors., 2010 158 PunLR 558 decided on 17.2.2010; R.S.A. No. 769 of 1982 - Rajinder Singh and Ors. v. State of Punjab and Ors., 2010 158 PunLR 80 decided on 17.2.2010 and R.S.A. No. 1291 of 1982 - Mohinder Kaur and Ors. v. Manmohan Singh and Ors., 2010 158 PunLR 560 decided on 17.2.2010.

(2.) On the other hand, Learned Counsel for the appellant contended that the appeal cannot be dismissed merely on such a plea as Section 100 of the CPC empowers the High Court to formulate substantial questions of law in the eventuality of the one arising therein which can be ascertained only after the merits thereof have been gone into. He further contended that the judgment of the Full Bench in Bikram Dass v. The Financial Commissioner, Revenue, Punjab, Chandigarh and Ors., 1975 AIR(P&H) 1 which has been relied upon by the learned Judge in judgment dated 16.2.2010 rendered in R.S.A. No. 861 of 1981, was overruled by the Supreme Court in The State of Punjab and Anr. v. Shamla Murari and Anr., 1976 AIR(SC) 1177 It was submitted that non-stating of questions of law in the memorandum of appeal is merely an irregularity which can be inferred from the fact that if an appeal has to be filed today without formulating the substantial questions of law, the same would be required to be rectified by affording an opportunity to the appellant in accordance with Rule 5 of Chapter-I-A(a) of Volume-V of the Rules and Orders, but certainly the appeal cannot be dismissed at the threshold for want of statement of questions of law. In support of this submission, reliance was placed on Mahant Bikram Dass Chela v. Financial Commissioner, Revenue, Punjab, Chandigarh and Ors., 1977 4 SCC 69 M/s Bharat Khandasari Udyog v. Khandasari Inspector, Roorkee West Circle and Anr., 1992 Supp2 SCC 473 Banarsi Dass v. Brig Maharaja Sukhjit Singh and Anr., 1997 8 JT 556; State of M.P. and Anr. v. Pradeep Kumar and Anr., 2000 7 SCC 372 Kulwant Kaur and Ors. v. Gurdial Singh Mann (Dead) by LRs and Ors., 2001 4 SCC 262 and Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Anr.,2005 1 SCC 75 It was further submitted that the Supreme Court in a number of judgments has held that it is the duty of the High Court to frame the substantial question of law in accordance with the provisions of Section 100(4) of the CPC and, therefore, the second appeal cannot be rejected only on the ground that no substantial question of law was formulated by the appellant in the memorandum of appeal. Some of the judgments referred to by him in this regard are:

(3.) Learned Counsels, who have appeared as intervenors also submitted on the similar lines.