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REPORTABLE

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

Versus

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 2015.

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

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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

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defendant Mutt to perform Adradhanas and Poojas of the

Vrindavanas at Navavrindavanagatti.

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

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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

1 AIR 2000 SC 3032

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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 admission.”

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

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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 24

th

to 26

th

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.

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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

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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.

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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 sub-

stantial question of law.

(2) An appeal may lie under this section from an

appellate decree passed ex-parte.

(3) In an appeal under this section, the memoran-

dum of appeal shall precisely state the substan-

tial question of law involved in the appeal.

(4) Where the High Court is satisfied that a sub-

stantial 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 hear-

ing 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 ap-

peal on any other substantial question of law, not

formulated by it, if it is satisfied that the case in-

volves such question.”

13.Section 101 CPC reads as under:-

2 (2003) 11 SCC 762

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“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 sec-

ond 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

3 (2000) 1 SCC 434

4 (2000) 3 SCC 708

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& 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 appel-

late jurisdiction under Section 96 of the Code; it

is restricted to such substantial question or

questions of law that may arise from the judg-

ment and decree appealed against. As a matter of

law, a second appeal is entertainable by the High

Court only upon its satisfaction that a substan-

tial question of law is involved in the matter and

its formulation thereof. Section 100 of the Code

5 (2010) 13 SCC 216

6 (2011) 9 SCC 684

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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 in-

volved 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

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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 or-

der 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 occa -

sions, 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 or-

der 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 contem-

plated 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 man-

date enshrined under Section 100 CPC, the im -

pugned 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:-

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“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 decree.

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 instance.

(2) Stay by court which passed the decree .—

Where an application is made for stay of execu-

tion 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 or-

der is made;

(b) that the application has been made without

unreasonable delay; and

(c) that security has been given by the appli-

cant 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 exe-

cution pending the hearing of the application.

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(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 ap-

peal, the court shall formulate the substantial

question of law as required by section 100, and

in doing so, the court may direct that the sec-

ond appeal be heard on the question so formu-

lated 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

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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

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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.

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...............................J.

[Dipak Misra]

...............................J.

[Shiva Kirti Singh]

New Delhi.

March 30, 2016.