SC: Proviso to S.100(5) isn’t intended to annul requirements of S.100, CPC

The Hon’ble Supreme Court, on 15th February 2019, in the matter of Mehboob-ur-Rehman (Dead) Through Lrs. v. Ahsanul Ghani while reiterating the fundamentality of readiness and willingness of the plaintiff seeking specific performance pronounced that it cannot be laid down as a matter of rule that irrespective of the question(s) formulated, hearing of the second appeal is open for any other substantial question of law, even if not formulated earlier as the proviso to Section 100(5) is not intended to annul the other requirements of Section 100.

The Hon’ble Supreme Court observed that:

It remains trite that the relief of specific performance is not that of common law remedy but is essentially an exercise in equity. Therefore, in the Specific Relief Act, 1963, even while providing for various factors and parameters for specific performance of contract, the provisions are made regarding the contracts which are not specifically enforceable as also the persons for or against whom the contract may be specifically enforced. In this scheme of the Act, Section 16 thereof provides for personal bars to the relief of specific performance. (Para 13)

In the scheme of the provisions relating to second appeal, it remains fundamental, as per Section 101 CPC, that no second appeal would lie except on the ground mentioned in Section 100. (Para 19)

As per Section 100 CPC, the appeal would lie to the High Court from the decree passed in appeal by any Court subordinate only if the High Court is satisfied that the case involves a substantial question of law; such question is required to be stated in the Memorandum of Appeal; the High Court is required to formulate the question on being satisfied that the same is involved in the case; the appeal is to be heard on the question so formulated; and at the time of hearing, the respondent could urge that the case does not involve such a question. The proviso to sub-section (5) of Section 100 CPC makes it clear that the Court could hear the appeal on any other substantial question of law not formulated by it, but only after recording the reasons that the case involves such a question. (Para 20)

The proviso to sub-section (5) of Section 100 CPC is not intended to annul the other requirements of Section 100 and it cannot be laid down as a matter of rule that irrespective of the question/s formulated, hearing of the second appeal is open for any other substantial question of law, even if not formulated earlier. The said proviso, by its very nature, could come into operation only in exceptional cases and for strong and convincing reasons, to be specifically recorded by the High Court. (Para 21)

Copy of judgement: Judgement_15-Feb-2019

-Tushar Kaushik  

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