A bench of Justices MR Shah and Hima Kohli found that the High Court had dealt with the case as if it were a writ petition under Article 226 of the Constitution, rather than a second appeal under Section 100 of the Code of Civil Procedure (CPC).

"We are constrained to observe that the manner in which the High Court has dealt with the Second Appeal under Section 100 of the CPC is not appreciable at all ... the impugned judgment and order passed by the High Court is unsustainable," the Supreme Court concluded.

The bench also took critical note that the High Court had casually allowed the plaintiff to amend his plea, even though such a prayer for amendment was not raised before the trial court or first appellate court.

Further, the Court observed that the questions framed by the High Court while considering the second appeal were questions of fact, and not substantial questions of law at all.

The case also prompted the Supreme Court to highlight that in order for a case to be remanded back to the trial court, a case for the same should specifically be made out under Order 41, Rule 23, 23A and 25 of the CPC.

However, the High Court, in this case, had not recorded any findings on this aspect, the top court noted.

"No findings are recorded by the High Court that the case falls within Order 41 Rule 23, 23A and 25 of the CPC and the matter is required to be remanded to the learned trial Court on setting aside the concurrent findings of fact recorded by both the courts below. The High Court has mechanically remanded the suit, which is wholly impermissible," the Supreme Court said.

Plea for ban on slaughter of old bulls and buffaloes: Delhi High Court issues notice to Centre

Prashant Jha

Related Stories