Shri Modo Kamki v. The State of Ap and 2 Ors

Page No.# 1/4 GAHC040003012021

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : Review Pet. 9/2021 1:SHRI MODO KAMKI S/O LT. HORMO KAMKI, PO/PS KAMBA, WEST SIANG DISTRICT, AP.

VERSUS 1:THE STATE OF AP AND 2 ORS. REPRESENTED BY ITS CHIEF SECRETARY, GOVT. OF AP, ITANAGAR. 2:THE DEPUTY COMMISSIONER AALO WEST SIANG DISTRICT AP. 3:SHRI JUMGE KAMKI S/O LT. HORJUM KAMKI PERMANENT RESIDENT OF VILLAGE KAMKI PO/PS KAMBA WEST SIANG DISTRICT AP Advocate for the Petitioner : Rintu Saikia Advocate for the Respondent : GA (AP)

Page No.# 2/4 :: BEFORE :: HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA O R D E R

17.01.2023

Heard Mr. R. Saikia, the learned counsel appearing for the petitioner. Also heard Mr. T.T Tara, the learned counsel representing the opposite parties.

¶2This is an application under Section 114 of the Code of Civil Procedure read with Order 47 Rule 1 of the said Code praying for review of the judgment dated 19.02.2021 passed by this Court in SAO No.02(AP)/2017.

¶3It has been submitted that SAO No.02(AP)/2017 is a Second Appeal and in spite of that, no substantial question of law was framed. Mr. Saikia has submitted that under the provision of Section 100 of the Code of Civil Procedure, it is mandatory on the part of the Court to frame a substantial question of law.

¶4To buttress his argument, Mr. Saikia has relied upon the decision of the Supreme Court that was delivered in Santosh Hazari Versus Purushottam Tiwari (Deceased) By LRS., reported in (2001) 3 SCC 179. Paragraph 9 of the said judgment is quoted as under: "The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. Page No.# 3/4 The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait1, Panchugopal Barua v. Umesh Chandra Goswami2 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar3)."

¶5Per contra, Mr. Tara has submitted that it was a duty on the part of the present petitioner to raise that issue at the time of hearing of the Second Appeal and therefore, at this stage, the petitioner is estopped from raising issue now.

¶6I have given my anxious considerations to the submissions made by the learned counsels of both sides.

¶7There is no doubt that SAO No.02(AP)/2017 is a Second Appeal. Therefore, there should have been a substantial question of law.

¶8It is a settled law that the High Court cannot proceed to hear a Second Appeal without framing a substantial question of law. In Second Appeal under Section 100 of the Code of Civil Procedure, existence of a substantial question of law is mandatory.

¶9For the aforesaid reason, this Court finds that there is an error apparent on the face of the record so far as the judgment dated

19.02.2021 passed by this Court in SAO No.02(AP)/2017 is concerned. This is a fit case for exercising the power of review under Section 114 of the Code of Civil Procedure read with Order 47 Rule 1 of the said Code. Accordingly, the review petition is allowed.

¶10The impugned dated 19.02.2021 passed by this Court in SAO No.02(AP)/2017 is set aside. Page No.# 4/4

¶11The SAO No.02(AP)/2017 shall be listed again after 2(two) weeks for Admission hearing. The present review petition is disposed of.

JUDGE Comparing Assistant