Summary
The Supreme Court set aside a High Court judgment in second appeals that had reversed concurrent decrees of mandatory injunction for removal of a wall and a lintel and instead directed the Executing Court to value the construction so that the plaintiffs' heirs could be compensated in money. No such relief had been sought, the heirs had not consented, no substantial question of law had been framed, and the second appeals were remitted for fresh decision under Section 100 CPC.
Issues
- Whether the High Court in second appeal could set aside decrees of mandatory injunction and substitute monetary compensation that the plaintiff never prayed for and his legal heirs did not consent to.
- Whether, after setting aside the decrees, the High Court could direct the Executing Court to assess the value of the offending construction.
- Whether the second appeals were validly decided without formulating substantial questions of law.
Provisions considered
- Section 100, Code of Civil Procedure, 1908Second appeal lies only on a substantial question of law which the High Court must formulate and hear the appeal on. The High Court referred to questions urged by the defendants but did not treat them as substantial questions of law, yet concluded that the substantial questions were answered for the defendants; the appeals were remitted for decision in accordance with Section 100 on merits. (¶¶ 3, 5, 6)
- Order XXI, Code of Civil Procedure, 1908Once the trial court decrees were set aside there was no decree left to execute, so a direction to the Executing Court to value the wall required an exercise unsupported by any decree and found no support in Order XXI. (¶ 5)
Held
- Where the plaintiff sued only for mandatory and permanent injunction and sought no damages or compensation, the High Court could not set aside the decree and compel his legal heirs, who had not consented, to accept compensation to be assessed by a valuer; a court cannot compensate one party at the cost of the other without a prayer to that effect. (¶ 5)
- After setting aside the decrees there was no decree holding the field, so directing the Executing Court to assess the value of the wall required it to act without any decree, a course not supported by Order XXI CPC. (¶ 5)
- The High Court repeated on remand the very error for which its earlier compensation decrees had been set aside by the Supreme Court, and also proceeded on the factually wrong premise that the trial court had found the wall to be a common wall. (¶¶ 3, 5)
- Setting aside concurrent decrees without a substantial question of law available for consideration and by granting a relief never prayed for resulted in a miscarriage of justice; as the second appeals had not been decided on merits, they had to be reconsidered under Section 100 CPC. (¶¶ 5, 6)
Result
Appeals allowed; the High Court's common judgment dated 02.05.2016 in RSA Nos. 363 and 364 of 2008 set aside and the second appeals remitted for fresh decision on merits under Section 100 CPC, expeditiously; no order as to costs.