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Gajinder Singh Versus Bhupinder Singh 2
Gajinder Singh Versus Bhupinder Singh 2
Gajinder Singh Versus Bhupinder Singh 2
S. No. 30
Supplementary 3
HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT SRINAGAR
IA No. 15/2017
In CSA No. 9900001/2016
CM No. 3333/2019
c/w Reserved on: 25-11-2021
CPC No. 7/2016 Pronounced on: 03-12-2021
(2) An appeal may lie under this section from an appellate decree passed
ex parte.
(4) Where the High Court is satisfied that a substantial 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 hearing 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
appeal on any other substantial question of law, not formulated by it, if it
is satisfied that the case involves such question."
light of any lis as held by the Apex Court in case titled as “Santosh
Hazari v. Purushottam Tiwari” reported in 2001 (3) SCC 179.
13. A bare perusal of Section 103 CPC would demonstrate that the
provisions of the said Section can be invoked if specific issue is
raised, there is evidence on record sufficient to determine the issue
and in spite of evidence on record and necessity to decide the issue,
either there is default on the part of the Courts below or any of them
in deciding it or the Courts below or any of them wrongly determines
it. In such cases, the High Court is entitled to exercise its power under
Section 103 to go into the question and deciding the same on the basis
of evidence on record.
Section 103 enables the High Court in second appeal, where the
evidence on record is sufficient, to determine an issue of fact
necessary for disposal of the appeal in case the lower appellate Court
has not determined that issue of fact or it has determined that issue
wrongly by reason of any illegality, omission, error or defect such as
is referred to in Sub-Section 1 of Section 100.
14. Thus a conjoint reading of the above provisions would manifestly
demonstrate that this Court is vested with the power to exercise its
jurisdiction to hear a second appeal not only on the substantial
questions framed by it but also those which though not framed yet in
the opinion of the Court arises as involved in the case and is/are
substantial in nature. The only sine qua non for exercising such power
be it under proviso appended to Sub-Section (5) of
Section 100 or Section 103 CPC is that such any other substantial
question requires to be framed and adjudicated upon at the time of
hearing of the appeal.
15. The contention of the counsel for the non-applicant that this Court is
precluded from framing any further substantial questions of law from
amongst the questions having been stated/proposed by the applicant in
view of aforesaid legal position is misplaced and legally not
sustainable thus pales into insignificance, in view of the principle of
law laid down by the Apex Court in the case titled as of “Santosh
Hazari v. Purushottam Tiwari”, that whether a question of law is
substantial one and involved in the case or not the paramount
overall consideration being the need for striking a judicious balance
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