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Om Prakash v. Kimtu And Another
Factual and Procedural Background
The litigation concerns property originally owned by one Gheru, who was described as deaf and dumb. On 28-8-1962 he purportedly executed a power of attorney in favour of his wife, Sobhi, who thereafter executed multiple sale deeds to various purchasers. Gheru’s daughter, Kimtu, challenged the validity of the power of attorney and the ensuing transactions in several suits.
In the particular suit underlying the present appeals, the trial court dismissed Kimtu’s claim, holding that Gheru was not legally disabled from executing the power of attorney. The first appellate court affirmed that dismissal.
On second appeal, a learned Single Judge of the Himachal Pradesh High Court set aside both lower-court judgments on 1-4-1999 and 13-8-1999, principally relying on a Division Bench decision in RFA No. 355 of 1992 (arising out of Suit No. 63 of 1983) in which similar transactions had been invalidated. The defendants (appellants before the Supreme Court) then filed the present civil appeals.
Legal Issues Presented
- Whether the High Court, in a second appeal under Section 100 of the Code of Civil Procedure, could reverse concurrent factual findings solely on the basis of a Division Bench judgment in another case without first framing an additional substantial question of law under Section 100(5).
- Whether a judgment in a separate proceeding (RFA No. 355 of 1992) that is not in rem could be treated as conclusive evidence between different parties without examining its admissibility and relevance under Sections 41-43 of the Indian Evidence Act.
Arguments of the Parties
Appellants’ Arguments
- The Single Judge erred in relying exclusively on the Division Bench decision without framing an additional substantial question of law, contrary to Section 100(5) CPC.
- The earlier Division Bench judgment was not binding on the present appellants and, at best, required proof of admissibility and relevance under Sections 41-43 of the Evidence Act.
Respondent’s Arguments
- The Division Bench judgment in RFA No. 355 of 1992 conclusively demonstrated that the power of attorney and consequent sale deeds were void, justifying the High Court’s intervention.
- The judgment was properly placed on record through an application under Order 41 Rule 27 CPC and could be relied upon.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Surendra Kumar Vakil v. Chief Executive Officer, M.P. (2004) 10 SCC 126 | A judgment in another case, not in rem, is not conclusive between different parties. | Cited to underscore that the Division Bench decision in RFA No. 355 of 1992 could not by itself determine the present dispute. |
| Sanjay Gera v. Haryana Urban Development Authority (2005) 3 SCC 207 | Same principle: reliance on non-conclusive judgments must be circumspect. | Reinforced the need for the High Court to assess evidentiary value under Sections 41-43 Evidence Act rather than treat the prior judgment as binding. |
Court's Reasoning and Analysis
The Supreme Court observed that the High Court reversed concurrent findings of fact essentially on the strength of a Division Bench judgment in a separate matter. Because that prior judgment was not in rem, it was not automatically binding on the parties. Under Section 43 of the Evidence Act, its relevance and evidentiary weight required express judicial evaluation, which the High Court did not undertake.
Crucially, Section 100(5) CPC obliges a High Court, when it proposes to decide an appeal on a ground not already formulated, to frame an additional substantial question of law and give the parties an opportunity to address it. The High Court failed to frame such a question regarding the admissibility and effect of the Division Bench judgment. This omission constituted a “manifest error” warranting appellate interference.
Given this procedural lapse, and without expressing any opinion on the merits of the underlying property dispute or on the disability issues framed by the High Court, the Supreme Court concluded that the judgment under appeal could not stand.
Holding and Implications
Holding: The Supreme Court allowed the appeals, set aside the High Court’s judgments dated 1-4-1999 and 13-8-1999, and remitted the matter to the Himachal Pradesh High Court for fresh consideration in accordance with law, with liberty to frame additional substantial questions of law as necessary.
Implications: The decision restores the status quo ante, reviving the trial court and first appellate court decrees until the High Court re-adjudicates the second appeal. The Supreme Court’s order emphasises the mandatory nature of Section 100(5) CPC and cautions High Courts against relying on judgments not in rem without evaluating their admissibility under the Evidence Act. No new substantive precedent on property or limitation law is set; the ruling is primarily procedural.
Order
1. These appeals are directed against the judgments and decrees dated 1-4-1999 and 13-8-1999 passed by a learned Single Judge of the High Court of Himachal Pradesh at Shimla in RFAs Nos. 269 of 1993 and 127 of 1994 respectively whereby and whereunder the appeals preferred by the first respondent herein were allowed.
2. Bereft of all unnecessary details, the fact of the matter is as under:
The property in dispute admittedly belonged to one Gheru. He was said to be deaf and dumb. On or about 28-8-1962, he allegedly executed a power of attorney in favour of his wife Sobhi. Acting on or on the basis of the said power of attorney, Sobhi executed several deeds of sale in favour of various persons. Kimtu, the original plaintiff (Respondent 1 herein) is the daughter of Gheru. Several suits were filed by Gheru or Kimtu questioning the legality or validity of the said power of attorney and consequently the diverse deeds of sale executed by Sobhi in favour of the vendees. Some of the suits were decreed. So far as the present suit filed by Kimtu is concerned, the same came to be dismissed by the trial court, inter alia, holding that Gheru was not legally disabled to execute the power of attorneys. The said judgment and decree of the trial court was affirmed by the first appellate court.
3. The High Court in the second appeal preferred by the plaintiff-respondent, formulated the following substantial questions of law:
“1. Whether once a person is held to be an idiot or lunatic, he can be allowed to deal with his property by himself or through appointment of any agent?
2. Whether in view of Section 6 of the Limitation Act, limitation can start running against an idiot or lunatic before he becomes sane and in case he dies as an idiot or lunatic, the suit can be said to be barred by limitation if the same is filed within three years of his death by his successors?”
For the reasons stated hereinafter, it is not necessary to deal with the said purported questions of law.
4. It is not in dispute that another suit being Suit No. 63 of 1983 filed by Gheru in the original side of the High Court of Himachal Pradesh, questioning certain transactions entered into by and between the aforesaid Sobhi and one Shri Charan Das Dogra, was dismissed by a learned Single Judge of the said Court. However, an appeal preferred thereagainst before a Division Bench by Kimtu, who was substituted in place of Gheru as he died during the pendency of the said suit, marked as RFA No. 355 of 1992 was allowed. It is also not in dispute that although the original power of attorney executed by Gheru in favour of his wife Sobhi was not brought on record, but the same had been produced by the defendants in the said Civil Suit No. 63 of 1983 which was the subject-matter of appeal in RFA No. 355 of 1992.
5. It is stated at the Bar that the plaintiff-respondent filed an application for adduction of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure (CPC) for bringing on record the aforementioned judgment in RFA No. 355 of 1992. Nothing has been shown to us that the said application was allowed. The learned Single Judge of the High Court however relying heavily on the said judgment of the Division Bench, allowed the instant appeal.
6. The learned counsel for the parties addressed us at great length as regards the relevancy and admissibility of the said judgment in terms of Sections 41, 42 and 43 of the Evidence Act. We, however, for the reasons to be stated hereinafter, do not intend to enter into the said questions as at present advised. Suffice to say that the High Court, if intended to rely upon the aforesaid judgment of the Division Bench passed in RFA No. 355 of 1992, was bound to formulate an appropriate substantial question of law in terms of sub-section (5) of Section 100 CPC. It failed to do so. It has not been disputed before us and even otherwise it is apparent from the record that the High Court in setting aside the judgment of the trial court and the first appellate court, principally relied upon the judgment of the Division Bench rendered in RFA No. 355 of 1992. There cannot be any doubt or dispute that the said judgment being not a judgment in rem was not binding upon the appellants herein. It might have been taken in evidence but its relevance/evidentiary value was required to be considered and determined by referring to the appropriate provisions of the Evidence Act, as envisaged under Section 43 thereof. It, however, appears that this aspect of the matter was not argued before the High Court and, therefore, it had no occasion to consider the same. It is trite that the decision in a case cannot be rendered only on the basis of the judgment in another case which is not conclusive between the parties. [See Surendra Kumar Vakil v. Chief Executive Officer, M.P (2004) 10 SCC 126 (SCC para 10) and Sanjay Gera v. Haryana Urban Development Authority (2005) 3 SCC 207.] The High Court, therefore, in our opinion, committed a manifest error in passing the impugned judgment solely relying on or on the basis of the aforesaid judgment of the Division Bench passed in RFA No. 355 of 1992 and ignoring the other materials on record. It was, in law, obligatory on the part of the High Court to consider the other materials on record so as to arrive at a finding that the conclusions of the trial court as also of the first appellate court were not legally sustainable. Having not done so, in our opinion, the High Court fell into an error particularly so as it failed to formulate an additional substantial question of law in terms of sub-section (5) of Section 100 CPC.
7. For the reasons aforementioned and in view of the fact that the main substantial questions of law have been answered without framing an additional substantial question of law, the findings recorded by the High Court are required to be set aside. The impugned judgment is accordingly set aside and the matter is remitted to the High Court for determining the issues between the parties afresh in accordance with law.
8. The High Court would be at liberty to frame appropriate question of law, if it arises in the appeal.
9. Needless to mention that nothing stated hereinabove be treated as an expression of opinion on the merits of the dispute and the High Court shall decide the appeal uninfluenced by any of the observations made hereinabove, in accordance with law.
10. Since the present proceedings pertain to the suits instituted in the year 1987, we would request the High Court to take up the matter on priority basis and dispose of it as expeditiously as possible, preferably within six months from the date of receipt of this order. Parties are directed to appear before the Registrar General of the High Court through their counsel or otherwise on 9-9-2005 for directions.
11. The Registry is directed to transmit the original record of the case to the High Court forthwith to enable it to proceed with the matter.
12. The appeals stand disposed of accordingly. No costs.
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