Tuesday, April 5, 2016

Raghavendra Swamy Mutt V/s. Uttaradi Mutt 30 March 2016


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.3190 OF 2016
              (Arising out of S.L.P. (Civil) No. 6662 of 2016)

Raghavendra Swamy Mutt                            …Appellant


Uttaradi Mutt                                           ...Respondent

                               J U D G M E N T
Dipak Misra, J.
      The  present  appeal,  by  special  leave,  assails  the  order  dated
11.02.2016 passed  by  the  learned  Single  Judge  of  the  High  Court  of
Karnataka at Dharwad in I.A. No.1 of 2016 in RSA No.100446 of  2015  whereby
he has vacated the interim order dated 16.12.2015 passed  in  I.A.  No.1  of
2.    The facts for the purpose of adjudication of the present appeal   need
to  be  stated  in  brief.   The  respondent,  Uttaradi  Mutt,  filed   O.S.
No.193/1992 in the Court of Civil Judge, Koppal but in due course  the  said
suit was transferred to the Court of Additional Civil Judge,  Gangavati  and
was registered as O.S. No.74/2010.  The suit was  filed  by  the  plaintiff-
respondent for the relief(s) for perpetual injunction  for  restraining  the
defendant-Mutt, its agents, servants, devotees,  etc.,  from  entering  upon
the suit schedule property or interfering with its possession and  enjoyment
of the suit property and/or interfering or disturbing with  the  performance
of annual “Aradhana” of His Holiness Sri Padmanabha Teertharu, Sri  Kavindra
Teertharu and Sri Vageesha Teertharu.  The suit preferred by  the  plaintiff
was dismissed.
3.    The judgment and decree passed in the suit  was  assailed  before  the
Principal Civil Judge, Senior Division, Gangavati and eventually  by  virtue
of the order passed by this Court in  Special  Leave  Petition  (Civil)  No.
20346 of 2014, it stood transferred to the  Court  of  Civil  Judge,  Senior
Division, Dharwad and numbered as R.A.  No.123/2014.   The  first  appellate
Court allowed the appeal  in  part.   The  appellate  Court  restrained  the
present appellant from  interfering  with  the  plaintiff/respondent  Mutt's
possession and enjoyment of suit  property  subject  to  the  right  of  the
defendant Mutt to perform  Adradhanas  and  Poojas  of  the  Vrindavanas  at
4.    After the appeal was  disposed  of,  the  respondent  filed  execution
petition,  E.P.  No.122/2015  before  the  Principal  Civil  Judge,   Junior
Division,  Gangavati.   The  executing  court  passed  certain   orders   on
10.12.2015. In the meantime, the appellant, being grieved by  the  order  in
the Regular Appeal, had preferred RSA No.100446/2015.  As the  order  passed
by the executing court affected certain rights of the  appellant,  it  filed
IA No.1 of 2015 seeking temporary injunction against the respondent.  Be  it
stated, the respondent had filed a caveat which was  defective  but  it  was
allowed to represent through the counsel  when  the  IA  No.1  of  2015  was
argued. As is discernible from the narration of facts, the  executing  court
had directed the Deputy Superintendent of Police, Gangavati to  give  police
protection to the decree-holder for possession and  enjoyment  of  the  suit
scheduled property and preventing the judgment-debtor from trespassing  into
the suit property violating the decree in RA No.123/2014.
5.    When the matter stood thus, IA No.1 of 2015 was taken up by  the  High
Court.  The  learned  Single  Judge,  while  considering  the  interlocutory
application for injunction, passed the following order:-
“List this matter on 20.01.2016 for filing of objections to  I.A.1/2015  and
2/15.  In the meanwhile, registry to secure the LCR  from  both  the  courts
below.  The same should reach this court on or before 16.01.2016.   However,
it is made  clear  that  the  appellant,  who  is  defendant  in  O.S.,  and
respondent who is plaintiff in the O.S., shall have their right  to  perform
pooja on regular basis without staking claim with respect to disputed  land,
which shall be subject to out come of this appeal.”

6.    As is manifest, the respondent filed objections to I.A. No.1/2015  and
also  filed  I.A.  No.1/2016  for  vacation  of  the  interim  order.   I.A.
No.1/2016 was taken up by the learned Single Judge  who  referred  to  Order
XXXIX Rule 3-A of the Code  of  Civil  Procedure  (CPC),  the  authority  in
                         A.  Venkatasubbiah  Naidu  v.   S.   Chellappan   &
others[1], noted the contentions advanced by the  learned  counsel  for  the
parties, adverted to the litigations that had  been  taken  recourse  to  by
both sides, acquainted itself with the earlier  order  passed  by  the  High
Court and came to hold thus :-
“On a reading of the aforesaid order  it  becomes  clear  that  the  interim
application filed by the appellant along with the appeal before  this  Court
had to be considered independently and on  its  own  merits.   But,  in  the
instant case what has happened is that this Court,  without  issuing  notice
to the respondent in the second appeal has granted an  interim  order  which
is to be in operation till the end of the appeal.  It is  not  known  as  to
whether the appellant had satisfied the Court on  any  substantial  question
of law that would  arise  in  the  matter  as  the  matter  was  listed  for

7.    After so stating, the High Court opined that the principle  stated  in
Order XXXIX Rule 3 had not been followed, notice to the respondent  had  not
been issued  although  permission  was  granted  to  the  counsel  to  raise
objections and further delved into the distinction between an  appeal  under
Section  100  CPC  and  the  regular  first  appeal,  and  in  the  ultimate
eventuate, concluded thus:-
“If notice to respondent was to be dispensed with prior to grant  of  an  ad
interim order till the conclusion of the  second  appeal  then  reasons  for
doing so had to be recorded.  But the interim order which is  sought  to  be
vacated is bereft of any reason.  I am  of  the  view  that  on  this  short
ground alone  order  dated  16.12.2015  has  to  be  vacated  as  there  are
procedural irregularities in the grant of the ad interim  order.   Secondly,
it is also not known at this point of time as to whether, the  order  passed
by this Court in M.F.A. no.21690/2012 was brought  to  the  notice  of  this
Court by the appellant or not before the interim order was passed.

      In view of the above, the  application  I.A.  no.1/2016  for  vacating
interim order dated 16.12.2015 is allowed.  Order  dated  16.12.2015  stands
vacated.  The appellant to seek any date for admission  of  the  matter  and
after hearing learned counsel for the appellant on admission of the  appeal,
this Court to consider I.A.  no.1/2015  afresh.   All  contentions  on  both
sides on I.A. No.1/2015 are kept open.”

8.    When the matter was taken up on 18.03.2016, this Court, after  hearing
the learned counsel for the parties, had passed the following order :-
“Having heard learned counsel for the parties, as an interim measure, it  is
directed that the petitioner, Sri Raghavendra Swamy Mutt,  is  permitted  to
do 'aradhana' from 24th to 26th March, 2016 and not a day prior to  that  or
beyond that.  Needless to say, no equity shall be claimed by the  petitioner
on the basis of this order.  That apart, the present  arrangement  shall  be
restricted to this occasion only.”

9.    We had, at that time, blissfully perceived being under the  impression
that “Aradhana” is a yearly  event,  that  request  to  the  High  Court  to
dispose of the second  appeal could sub-serve the cause of justice, but  the
learned counsel for the parties apprised us that it  is  a  monthly  affair.
Ergo, we have heard  Dr. Rajiv Dhawan  and  Mr.  R.  Venkataramani,  learned
senior counsel for the appellant and Mr. Fali  S.  Nariman,  learned  senior
counsel for the respondent.
10.        It      is      submitted      by      Dr.       Dhawan       and
 Mr. Venkataramani, learned senior counsel, that  the  High  Court  was  not
justified in vacating the order of stay on the grounds it has done, for  the
principle of Order XXXIX Rule 3-A is not applicable when the  appellant  had
prayed for stay and passing of interim orders.  It is  urged  by  them  that
the respondent had entered caveat which was defective in nature but  it  had
participated in the hearing and, therefore, the interim order could  not  be
regarded as an ex parte order.  Learned senior  counsel  appearing  for  the
appellant would further submit that when the judgment and decree  passed  in
the regular appeal is demonstrably  unsustainable,  the  High  Court  should
have maintained the order of stay and finally  disposed  of  I.A.  No.1/2015
and should not have entertained  I.A.  No.1/2016  seeking  vacation  of  the
order of stay.  It has  been  highlighted  that  the  language  employed  in
Section 100 CPC though stipulates  that  appeal  is  to  be  entertained  on
substantial question of law involved in the case, it does not bar  the  High
Court to pass an ad interim order in a  grave  situation  and  that  is  the
basic purport of Order XLI Rule 5 and Order XLII CPC.
11.   Combating the aforesaid submissions,  it  is  urged  by  Mr.  Nariman,
learned senior counsel appearing for the respondent that the  interim  order
passed by the High Court in I.A. No.1/2015 from all angles is  an  ex  parte
order, for adjournment was sought on  behalf  of  respondent  to  argue  the
matter but the same was declined.   Learned  senior  counsel  would  propone
that passing an order of stay or issuing an order of injunction in a  second
appeal is quite different than an interim order passed in  a  regular  first
appeal preferred under  Section  96  CPC.   It  is  canvassed  by  him  that
formulation of substantial question of law by the Court  under  Section  100
CPC is an imperative to  proceed  with  the  appeal  and  the  Court  cannot
proceed  unless  the  condition  precedent  is  satisfied  and  in  such   a
situation, the question  of  passing  any  interim  order  or  granting  any
interim relief does not arise.    Mr. Nariman has drawn support from a  two-
Judge Bench decision in Ram Phal v. Banarasi & Ors.[2].
12.   To appreciate the controversy, it is seemly to refer  to  Section  100
CPC. It reads as follows:-
“Section 100. Second appeal.—
(1) Save as otherwise expressly provided in the body of this Code or by  any
other law for the time being in force, an  appeal  shall  lie  to  the  High
Court from every decree passed in appeal by any  Court  subordinate  to  the
High Court, if the  High  Court  is  satisfied  that  the  case  involves  a
substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex-

(3) In an  appeal  under  this  section,  the  memorandum  of  appeal  shall
precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law  is
involved in any case, it shall formulate that question.

(5) The appeal shall  be  heard  on  the  question  so  formulated  and  the
respondent shall, at the hearing of the appeal, be  allowed  to  argue  that
the case does not involve such question :

Provided that nothing in this sub-section shall be deemed to  take  away  or
abridge the power of the Court to hear, for  reasons  to  be  recorded,  the
appeal on any other substantial question of law, not formulated  by  it,  if
it is satisfied that the case involves such question.”

13.   Section 101 CPC reads as under:-
“Section 101. Second appeal on no other grounds.—No second appeal shall  lie
except on the ground mentioned in section 100.”

14.   A plain reading of Section 100 CPC makes it  explicit  that  the  High
Court can entertain a second appeal if  it  is  satisfied  that  the  appeal
involves a substantial question of law.  More  than  a  decade  and  a  half
back, in Ishwar Dass Jain v. Sohan Lal[3] it has been ruled that  after  the
1976  Amendment,  it  is  essential  for  the  High  Court  to  formulate  a
substantial question of law  and  it  is  not  permissible  to  reverse  the
judgment of the first appellate court without doing so.
15.   In Roop Singh v. Ram Singh[4] the Court had to say thus:-
“It is to be reiterated that under Section 100 CPC jurisdiction of the  High
Court to entertain a second appeal is confined only to  such  appeals  which
involve  a  substantial  question  of  law  and  it  does  not  confer   any
jurisdiction on the High Court to interfere  with  pure  questions  of  fact
while exercising its jurisdiction under Section 100 CPC.”

16.   In Municipal Committee, Hoshiarpur v. Punjab SEB &  Others[5]  it  has
been categorically laid down that the existence of  a  substantial  question
of law is a condition precedent for entertaining the second  appeal  and  on
failure to do so, the judgment rendered by the High Court is  unsustainable.
It has been clearly stated that existence of a substantial question  of  law
is the sine qua non for the exercise of jurisdiction  under  the  provisions
of Section 100 CPC.
17.   In Umerkhan v. Bismillabi alias Babulal Shaikh and  others[6]  a  two-
Judge Bench was constrained to ingeminate the legal position thus:-
“In our view, the very jurisdiction of the High Court in  hearing  a  second
appeal is founded on the formulation of a substantial question of  law.  The
judgment of the High Court is rendered patently illegal, if a second  appeal
is heard and judgment  and  decree  appealed  against  is  reversed  without
formulating  a  substantial  question   of   law.   The   second   appellate
jurisdiction of the High  Court  under  Section  100  is  not  akin  to  the
appellate jurisdiction under Section 96 of the Code;  it  is  restricted  to
such substantial question or questions  of  law  that  may  arise  from  the
judgment and decree appealed against. As a matter of law,  a  second  appeal
is entertainable by the  High  Court  only  upon  its  satisfaction  that  a
substantial question of law is involved in the matter  and  its  formulation
thereof. Section 100 of the Code provides that the second  appeal  shall  be
heard on the question so formulated. It is, however, open to the High  Court
to reframe substantial question of law or frame substantial question of  law
afresh or hold that no substantial question of law is involved at  the  time
of hearing the second appeal but reversal of the judgment and decree  passed
in appeal by a court subordinate to it in  exercise  of  jurisdiction  under
Section 100 of the Code is  impermissible  without  formulating  substantial
question of law and a decision on such question.”

18.   In the instant case, the High Court has not yet admitted  the  matter.
It is  not  in  dispute  that  no  substantial  question  of  law  has  been
formulated as it  could  not  have  been   when  the  appeal  has  not  been
admitted.  We say so, as appeal under Section 100  CPC  is  required  to  be
admitted only on  substantial  question/questions  of  law.   It  cannot  be
formal admission like  an  appeal  under  Section  96  CPC.    That  is  the
fundamental imperative.  It is peremptory in character, and that  makes  the
principle absolutely cardinal.    The issue that  arises  for  consideration
is; whether the High Court without admitting the second  appeal  could  have
entertained IA No. 1/2015 which was filed seeking interim  relief.   In  Ram
Phal (supra), from which Mr.  Nariman,  learned  senior  counsel  has  drawn
immense inspiration, the two-Judge Bench was dealing with a case  where  the
High Court had granted an interim order by  staying  the  execution  of  the
decree but had not framed the substantial question of law. In that  context,
the Court held:-
“… However, the High Court granted interim order by  staying  the  execution
of the decree. It is against the said  order  granting  interim  relief  the
respondent in the second appeal has preferred this appeal. This Court, on  a
number of occasions, has  repeatedly  held  that  the  High  Court  acquires
jurisdiction to decide the second appeal or deal with the second  appeal  on
merits only when it frames a substantial question of law as required  to  be
framed under Section 100 of the Civil Procedure Code. In the  present  case,
what we find is that the High Court granted  interim  order  and  thereafter
fixed the matter for framing of question of law on a subsequent  date.  This
was not the way to deal with the matter as contemplated  under  Section  100
CPC. The High Court is required to frame  the  question  of  law  first  and
thereafter deal with the matter. Since the High Court dealt with the  matter
contrary to the mandate enshrined under Section 100 CPC, the impugned  order
deserves to be set aside.”

19.   To meet the reasoning  in  the  aforequoted  passage,              Dr.
Dhawan and Mr. Venkataramani with resolute perseverance submitted  that  the
decision in Ram Phal (supra) is distinguishable as it does not take note  of
Order XLI Rule 5 and Order XLII Rule 1 CPC.
20.   Order XLI Rule 5 reads as follows:-
“5. Stay by appellate court.—(1) An appeal shall not operate as  a  stay  of
proceedings under a decree or order appealed  from  except  so  far  as  the
appellate court may order, nor shall execution of  a  decree  be  stayed  by
reason only of an appeal having been preferred  from  the  decree;  but  the
appellate court may for sufficient cause order stay  of  execution  of  such

Explanation : An order by the Appellate Court for the stay of  execution  of
the decree shall be effective from the date of  the  communication  of  such
order to the court  of  first  instance,  but  an  affidavit  sworn  by  the
appellant, based on his personal knowledge, stating that an  order  for  the
stay of execution of the decree has been made by the Appellate Court  shall,
pending the receipt from the Appellate Court of the order for  the  stay  of
execution or any order to the contrary, be acted upon by the court of  first
|                                                     |     |
|                                                     |     |

(2) Stay by court which passed the decree.—Where an application is made  for
stay of execution of an appealable decree before the expiration of the  time
allowed for appealing therefrom, the court which passed the  decree  may  on
sufficient cause being shown order the execution to be stayed.

(3) No order for stay of execution shall be made under sub-rule (1) or  sub-
rule (2) unless the court making it is satisfied—
(a) that substantial loss may result to  the  party  applying  for  stay  of
execution unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for  the  due  performance
of such decree or order as may ultimately be binding upon him.

(4) Subject to the provisions of sub-rule (3), the  court  may  make  an  ex
parte order for stay of execution pending the hearing of the application.

(5) Notwithstanding anything contained in  the  foregoing  sub-rules,  where
the appellant fails to make the deposit or furnish  the  security  specified
in sub-rule (3) of Rule 1, the court shall not make  an  order  staying  the
execution of the decree.”

21.   Order XLII  Rule  1  that  occurs  under  the  Heading  “Appeals  From
Appellate Decrees” is as follows:-
“1. Procedure.— The rules of Order XLI shall apply, so far  as  may  be,  to
appeals from appellate decrees.”

22.   In this context, it is useful to refer to Order XLII Rule 2 which  has
been inserted by Act 104 of 1976 with effect from  01.02.1977.  It  provides
as under:-

|                                                              | |
|“2. Power of court to direct that the appeal be heard on the  | |
|question formulated by     it.— At the time of making an order| |
|under rule 11 of Order XLI for the hearing of a second appeal,| |
|the court shall formulate the substantial question of law as  | |
|required by section 100, and in doing so, the court may direct| |
|that the second appeal be heard on the question so formulated | |
|and it shall not be open to the appellant to urge any other   | |
|ground in the appeal without the leave of the court, given in | |
|accordance with the provision of section 100.”                | |

23.   Submission of the learned senior counsel for  the  appellant  is  that
Order XLI Rule 5 confers jurisdiction on the High Court while  dealing  with
an appeal under Section 100 CPC to pass an ex parte order and such an  order
can be passed deferring formulation of question of law in grave  situations.
 Be it stated, for passing an ex parte order the Court has to keep  in  mind
the postulates provided under sub-rule (3) of Rule 5 of Order  XLI.  It  has
to be made clear that the Court for the  purpose  of  passing  an  ex  parte
order  is obligated to keep in view the language employed under Section  100
CPC. It is because formulation of substantial question of  law  enables  the
High Court to entertain an appeal and thereafter proceed to  pass  an  order
and at that juncture, needless to say, the Court  has  the  jurisdiction  to
pass an interim order subject to the language employed  in  Order  XLI  Rule
5(3).  It is clear as day that the High Court cannot admit a  second  appeal
without examining whether it raises any  substantial  question  of  law  for
admission and  thereafter,  it  is  obliged  to  formulate  the  substantial
question of law.  Solely because the Court has the jurisdiction to  pass  an
ex parte order, it does not empower it  not  to  formulate  the  substantial
question of law  for the purpose of admission, defer the date  of  admission
and pass an order of stay or grant an interim  relief.    That  is  not  the
scheme of CPC after its amendment in 1976 and  that  is  not  the  tenor  of
precedents of this Court and it has been  clearly  so  stated  in  Ram  Phal
(supra).  Therefore, the High Court has rectified its  mistake  by  vacating
the order passed in IA No. 1/2015 and it is the correct approach adopted  by
the High Court. Thus, the impugned order is absolutely impregnable.
24.   Having so concluded, we would have proceeded to  record  dismissal  of
the appeal. But in the obtaining facts and  circumstances,  we  request  the
High Court to take up the second appeal for admission and, if it finds  that
there is a substantial question of law  involved,  proceed  accordingly  and
deal with IA No. 1/2015 as required in law. Needless  to  say,  the  interim
order passed by this Court on earlier occasion should not  be  construed  as
an expression of any opinion from any count. It was a  pure  and  simple  ad
interim arrangement.
25.   Resultantly, the appeal, being sans substance, stands  dismissed  with
no order as to costs.

                                           [Dipak Misra]

   [Shiva Kirti Singh]

New Delhi.
March 30, 2016.

[1]    AIR 2000 SC 3032
[2]    (2003) 11 SCC 762
[3]    (2000) 1 SCC 434
[4]    (2000) 3 SCC 708
[5]    (2010) 13 SCC 216
[6]    (2011) 9 SCC 684

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