Order Passed Without Available Substantial Question Of Law & By Making Out New Prayer: Supreme Court Asks High Court To Reconsider Second Appeal

The Apex Court was considering the appeal filed by the legal heirs of the original plaintiff in a property dispute.

The Division Bench of Justice S.V.N Bhatti and Justice Atul S. Chandurkar held, “Further, though the High Court has referred to three questions in the impugned judgment and has stated that the defendants urged the Court to frame the said questions as ‘substantial questions of law’, the impugned order does not indicate that the said questions were treated as substantial questions of law. However, the order concludes by observing that the substantial questions were answered in favour of the defendants and the decree passed in favour of the original plaintiff was set aside. It is, thus, clear that without an available question of law for consideration and also by making out a new prayer, the decrees passed in favour of the original plaintiff have been set aside. The legal heirs of the plaintiff have been required to accept monetary relief for which a prayer was never made. Such course has resulted in miscarriage of justice.”

AOR Sangeeta Kumar represented the Appellant.

Factual Background

The appellants are the legal heirs of the original plaintiff Om Parkash. The original plaintiff filed a Civil Suit against the respondents, original defendants, seeking mandatory injunction for the removal of an alleged illegal encroachment in the form of a wall constructed by them on the common open space beyond the plaintiff’s house. He further sought a permanent injunction seeking to restrain the defendants from raising any further construction thereon. The Trial Court decreed the suit and directed the defendants to remove the encroachment committed by raising the said walls. It also restrained them from raising any further construction over the said walls.

A Regular Civil Appeal preferred by the defendants was dismissed, and the decree passed by the Trial Court was upheld. In the second appeal filed by the defendants, it was held that the wall would be treated as common after payment of Rs 10,000 by the defendants. The legal heirs of the original plaintiff, being aggrieved by the reversal of the decrees by the High Court, filed appeals. The judgments delivered in the Second Appeals by the High Court were set aside and the proceedings were remanded for fresh consideration in accordance with the law.

On remand, the High Court was of the view that the construction of the wall had been raised long ago. The defendants were accordingly directed to deposit the amount corresponding to the assessed value of the construction in the Executing Court to be paid to the legal heirs of the plaintiff. With these directions, the decree passed by the Trial Court, as affirmed by the first Appellate Court, came to be set aside. The legal heirs of the original plaintiff, aggrieved by the reversal of the said decrees, approached the Apex Court with the appeals in question.

Reasoning

The Bench noted that the initial suit filed by the original plaintiff was essentially for a decree for mandatory injunction. In the other suit, the Trial Court found that the defendants had put up a lintel of the school building on the wall of the plaintiff’s house illegally. A decree directing the removal of the same and restraining the defendants from doing so in the future was passed. Both these decrees were upheld by the first Appellate Court.

Considering that there was no prayer whatsoever made by the original plaintiff seeking any damages or compensation from the defendants for the encroachment committed by them, the Bench stated, “In the absence of any such relief sought by the original plaintiff, the decree passed in his favour could not have been set aside by the High Court by compelling his legal heirs to accept compensation that was directed to be assessed by a valuer. The legal heirs of the plaintiff did not consent for such course to be followed. The High Court, therefore, could not have undertaken such exercise of seeking to compensate one party at the cost of the other without any prayer being made in that regard.”

The Bench was of the view that once the decrees passed by the Trial Court in favour of the plaintiff were set aside, there was no occasion for the Executing Court to proceed with the execution proceedings since there would have been no decree holding the field for being executed. “In such a situation, directing the Executing Court to assess the value of the wall in question would be requiring it to undertake an exercise not supported by any decree whatsoever. Indeed, the course adopted by the High Court does not find support under Order XXI of the Code of Civil Procedure, 1908”, it added.

The Bench further stated that the High Court ought to have been mindful of the fact that a similar exercise undertaken by it earlier while deciding the respective Second Appeals and directing the payment of compensation to the original plaintiff was set aside by this Court. “The impugned order of the High Court proceeds on a factually wrong premise that the Trial Court had recorded a finding that the wall in question was a common wall. No such finding was recorded by the Trial Court. In fact, a decree for removal of the offending wall came to be passed by the Trial Court”, it stated.

Thus, finding the judgment of the High Court to be unsustainable and setting aside the same, the Bench allowed the appeal and requested High Court to re-consider both the appeals in accordance with Section 100 of the Code and decide the same on their own merits.

Cause Title: Rajat Kumar v. S D Adarsh Jain Kanya Maha Vidyalaya Sadhaura (Neutral Citation: 2026 INSC 648)

Appearance

Appellant: AOR Sangeeta Kumar, Advocate Vidushi Garg

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