Second appeal u/s 41 of Punjab Courts Act can be entertained by Punjab & Haryana HC even without framing a substantial question of law: Apex Court recalls its order after finding error apparent on the face of record
Justices Vikram Nath & Prashant Kumar Mishra [16-05-2204]

Read Order: LEHNA SINGH (D) BY LRS v. GURNAM SINGH (D) BY LRS. & ORS [SC-REVIEW PETITION (C) No. 1025 of 2019]

LE Correspondent

New Delhi, May 28, 2024: Allowing a review petition and recalling its earlier order, the Supreme Court has opined that Section 41 of Punjab Courts Act, 1918 does not mandate framing of a substantial question of law for entertaining the second appeal.

The Division Bench of Justice Vikram Nath & Justice Prashant Kumar Mishra was considering a Review Petition seeking review of the Order passed in Civil Appeal wherein the present petitioner was the respondent. In the judgment under review, this Court held that the judgment and decree passed by the Punjab and Haryana High Court is beyond the scope and ambit of Section 100 of Code of Civil Procedure, 1908 (CPC) on the ground that in exercise of such power, the High Court could not have reappreciated the entire evidence on record to unsettle the finding of facts recorded by the First Appellate Court, by substituting its own opinion for that of the First Appellate Court.

Basing the judgment rendered in Pankajakshi (Dead) Through Legal Representatives & Ors. v. Chandrika & Ors. (2016) 6 SCC 157 [LQ/SC/2016/324] , the Court directed that the review petition be listed before the open Court for hearing and subsequently notices were issued to the opposite parties, at the same time, directing the parties to maintain status quo.

The petitioner relied upon the judgment in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71 [LQ/SC/2019/1117] to submit that the provisions of Section 41 of the Punjab Act and of Section 100 CPC, before its amendment in 1976, are in pari materia. Therefore, the questions of law are not required to be framed in second appeal before Punjab and Haryana High Court whose jurisdiction in second appeal is circumscribed by provision of Section 41 of the Punjab Act.

The Bench was of the view that the provision contained in Section 41 of the Punjab Act does not mandate framing of a substantial question of law for entertaining the second appeal. Therefore, a second appeal under Section 41 of Punjab Act can be entertained by the Punjab and Haryana High Court even without framing a substantial question of law.

Further referring to Pankajakshi (Dead) Through Legal Representatives & Ors. v. Chandrika & Ors. [LQ/SC/2016/324] , Randhir Kaur v. Prithvi Pal Singh & Ors. [LQ/SC/2019/1117] and Gurbachan Sing (Dead) Through Lrs. v. Gurcharan Singh (Dead) Through Lrs. & Ors, the Bench opined that Judgment under review had been wrongly decided holding that the Punjab and Haryana High Court had travelled beyond the jurisdiction under Section 100 CPC by interfering with the finding of fact recorded by the First Appellate Court without framing a substantial question of law.

Thus, allowing the review petition, the Bench held, “Since there is an error apparent on the face of the record, in view of the law laid down in Pankajakshi (supra), we review our judgment in Civil Appeal No. 6567 of 2014 and recall the same for deciding the Civil Appeal on merits.”

The Top Court was considering another Civil Appeal preferred by the defendants in the suit against whom the plaintiff brought a suit for perpetual injunction on the pleadings that he and his brother Bhagwan Singh alias Nikka Singh were owners in possession of the suit land. Bhagwan Singh was issueless being unmarried. Since the defendant No. 1 was trying to dispossess the plaintiff forcibly, the suit for perpetual injunction was filed. The defendants did not deny that plaintiff and Bhagwan Singh were real brothers. However, he claimed to be the half-brother of Bhagwan Singh.

The defendants’ case rested on a Will allegedly executed by Bhagwan Singh. Prior to this, Bhagwan Singh had executed an unregistered Will. However, the defendant admitted that during the lifetime of Bhagwan Singh, the suit land was cultivated jointly by the plaintiff and Bhagwan Singh. In the alternative, the defendant pleaded that if plaintiff's possession over the suit land is proved, the defendant nos. 2 to 6, the beneficiary of the Will, are entitled to joint possession of half share of the suit land.

The trial court held that the defendants failed to prove the genuineness of the Will, therefore, the plaintiff was entitled to succeed by way of natural succession. The First Appellate Court set aside the finding of the trial court and eventually passed a decree for joint possession in favour of the defendant which was assailed by plaintiff Lehna Singh before the High Court by preferring an appeal under Section 41 of the Punjab Act and the same was allowed.

Reiterating that the First Appellate Court, while setting aside the Judgment and decree of the trial court, is required to meet the reasoning given by the trial court in rejecting the Will, the Bench opined that the same had not been done by the First Appellate Court.

The Top Court placed reliance upon Jagannath v. Arulappa & Anr. [LQ/SC/2005/120] to reaffirm that it would be wholly improper to allow first appeal without adverting to the specific findings of the trial court and that the First Appellate Court is required to address all the issues and determine the appeal upon assignment of cogent reasons.

As per the Bench, the First Appellate Court wrongly set aside the Judgment, decree, and findings of the trial court without meeting the findings of the trial court which could not have been done in exercise of power under Section 96 CPC. Noting that the findings recorded by trial court were borne out from the evidence on record and were neither perverse nor illegal, the Bench dismissed the appeal.