1997 (5) TMI 422 - SC - Indian Laws

Summary

Issues Involved:
1. Maintainability of the Suit
2. Jurisdiction and New Plea in Second Appeal
3. Compliance with Section 100 C.P.C.

Summary:

Maintainability of the Suit:
The plaintiff filed a suit for declaration of title and recovery of possession of 1.80 acres of land in Mouja Durganagar, claiming that the defendants had trespassed and dispossessed the lawful occupant. The trial court decreed in favor of the plaintiff, finding that the defendants had no tenancy rights. However, the Sub-ordinate Judge in Title Appeal No. 362/61 reversed this decision. The High Court, in Second Appeal No. 871/81, dismissed the suit, holding it was not maintainable as the plaintiff's vendor's interest had vested in the State under the West Bengal Estates Acquisition Act, 1953.

Jurisdiction and New Plea in Second Appeal:
The High Court set aside the concurrent judgments of the lower courts based on a new plea raised by the defendants, which was not previously argued. The new plea was that the plaintiff's vendor's interest vested in the State on 10.4.1956, under Section 52 of the Act, as she was not in possession of the suit land on the date of vesting. The plaintiff contended that this plea was never raised in the pleadings or at any prior stage of the proceedings.

Compliance with Section 100 C.P.C.:
The Supreme Court found that the High Court acted illegally and in excess of jurisdiction by entertaining a new plea in the second appeal without complying with the mandatory provisions of Section 100 C.P.C. The High Court failed to formulate any "substantial question of law" and did not provide the opposite party with a fair opportunity to meet the new plea. The Supreme Court emphasized that the existence of a "substantial question of law" is a sine qua non for the exercise of jurisdiction under the amended Section 100 C.P.C. The High Court's failure to adhere to these provisions rendered its judgment and decree illegal and unsustainable.

Conclusion:
The Supreme Court set aside the judgment and decree of the High Court dated 30th November 1982, and allowed the appeal with costs, including advocates' fees estimated at Rs. 10,000/-. The High Court's approach was found to be improper as it did not respect the legislative intent behind the amendment of Section 100 C.P.C.