2026:HHC:35191 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP No. 8294 of 2026 in RSA No. 452 of 2007 Reserved on: 13.8.2026 Date of Decision: 20.8.2026 Surekha and another ...Applicants/Plaintis Versus Sudama Ram and others ...Respondents/Defendants Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Applicants/ Plainti0s : Mr Rajesh Kumar Parmar, Advocate. For Respondent No.1 : Mr.. Mohan Singh, Advocate. For Respondents No.2 and 4/State : Mr Ajit Sharma, Deputy Advocate General. For Respondent No.3 : Mr Vivek Sharma, Advocate. Rakesh Kainthla, Judge The appellate/applicant has %led the present application for formulating the following additional substantial question of law:- 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:35191 2(A). Whether the Judgment and Decree of the First Appellate Court suers from illegality and perversity? 2. It has been asserted that the appellant had %led a Civil Suit No.199/1 of 95/91 on 27.11.1991 for declaration, injunction and possession of the encroached land, which was partly decreed on 22.12.1999. The appellant %led an appeal before the learned District Judge, Shimla, which was dismissed on 25.06.2007. The appellant %led an appeal which was registered as RSA No. 452 of 2007, and the respondent preferred a cross-appeal, which was registered as RSA No. 459 of 2007. These appeals were admitted on 03.10.2007. These RSAs were decided by a common judgment on 27.04.2020. However, the judgment dated 27.04.2020 was recalled as per the orders passed in the review petitions %led by the parties. The learned First Appellate Court has wrongly a>rmed the judgment and decree of the learned Trial Court. The learned Trial Court had framed an issue regarding the entitlement to a permanent prohibitory injunction. However, no relief of injunction was granted regarding the use of the path as prayed for. The plainti had prayed for a permanent prohibitory injunction not only against digging but against the use of the path. The learned First 3 2026:HHC:35191 Appellate Court had framed point No.1 for determination, and it was wrongly held that there existed no path over Khasra No.192. No %nding was given regarding the grant of injunction. The learned First Appellate Court had erroneously held that no right of privacy was infringed and injunction was improperly withheld. The plaintis had also prayed for possession of the land encroached upon by the defendant. The defendant No.1 had also %led a Civil Writ Petition for demarcation, which was dismissed as the Divisional Commissioner had already allowed the prayer. There was a discrepancy in the revenue record, and the learned Trial Court erred in presuming that the land was only 640 biswansi, whereas it was 631 biswansi after deducting 0-9 biswansi. Defendant No.1 had obtained sanction from M.C. Shimla based on a tampered revenue record. Assistant Settlement O>cer added 20.06.1991 and cancelled the sanction given to Defendant No.1. The order of the Assistant Settlement O>cer has been a>rmed by the Financial Commissioner. Therefore, it was prayed that the substantial question of law be framed. 3. The application is opposed by %ling a reply taking preliminary objection regarding lack of maintainability and the 4 2026:HHC:35191 application not ful%lling the mandate required for formulation of a substantial question of law. It was asserted that the appeal has already been admitted on substantial questions of law by the Court and framing of additional substantial questions of law will reopen the unnecessary factual dispute. No perversity has been pleaded in the application. The path exists on the Government land, and the applicant has no concern with it. Therefore, it was prayed that the present application be dismissed. 4. I have heard Mr Rajesh Kumar, learned counsel for the applicant/appellant, Mr Mohan Singh, learned counsel for respondent No.1, Mr Ajit Sharma, learned Deputy Advocate General, for respondents No.2 and 4/State and Mr Vivek Sharma, learned counsel for respondent No.3. 5. Mr Rajesh Kumar, learned counsel for the applicant/appellant, submitted that the learned Appellate Court had not properly appreciated the material on record and it has become necessary to frame the proposed Substantial Question of Law. The Court has jurisdiction under Section 100(5) of CPC to frame the additional Substantial Question of Law. Therefore, he prayed that the present application be allowed and the proposed Substantial Question of Law be framed. 5 2026:HHC:35191 6. Mr Mohan Singh, learned counsel for respondent No.1, submitted that the substantial question of law can only be framed if it is supported by the material on record. The jurisdiction of the Court deciding a Regular Second Appeal is only related to a substantial question of law, and it cannot re-appreciate the evidence. The application is an attempt to re-appreciate the evidence. Therefore, he prayed that the present application be dismissed. He relied upon the judgment of the Hon’ble Supreme Court in C.P. Francis Vs. C.P. Joseph 2025 SCC OnLine SC 1896 in support of his submission. 7. Mr Ajit Sharma, learned Deputy Advocate General, for respondents No.2 and 4/State and Mr Vivek Sharma, learned counsel for respondent No.3, adopted the submission of Mr. Mohan Singh, learned counsel for respondent No.1. 8. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 9. It was laid down by the Hon'ble Supreme Court in C.P. Francis Vs. C.P. Joseph 2025 SCC OnLine SC 1896 that the High Court is competent to formulate a substantial question of law not stated when the second appeal was admitted, but such substantial question of law can be framed for strong and 6 2026:HHC:35191 convincing reasons to be recorded in exceptional cases. It was observed: - 7. The impugned judgment records that an additional substantial question of law (sic) was framed and opportunity was provided to the counsel to address the Court on the said question of law. Section 100 of the CPC reads as follows: 100. Second appeal. — (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satis%ed that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satis%ed 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 satised that the case involves such question. (Emphasis supplied) 18. In the above background, before we examine the procedure followed by the High Court, a few precedents on the point are noted. The principles emanating from 7 2026:HHC:35191 precedents on Section 100(5) of the CPC can be summed up as follows: 18.1 A substantial question of law must be grounded in the parties' pleadings and the %ndings of lower courts. Thus, it must be exercised if it is so fundamental that it goes to the very root of the matter. (Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179). 18.2 The jurisdiction to frame a new question of law is exceptional and should not be exercised routinely unless there is a strong and convincing reason to do so. (Mehboob-Ur-Rehman v. Ahsanul Ghani, (2019) 19 SCC 415) 18.3 The proviso allows the court to hear an appeal on “any other substantial question of law,” which implies that at least one substantial question of law must have been formulated at the admission stage. The power to reformulate or add a question arises only if a substantial question of law has already been framed. (Gian Dass v. Gram Panchayat, (2006) 6 SCC 271; Kirpa Ram v. Surendra Deo Gaur, (2021) 13 SCC 57). 18.4 The High Court must be “satis%ed” that the new question is a substantial question of law and not a mere legal plea. (Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438) 18.5 The court is mandatorily required to record its reasons for framing an additional substantial question of law. (R. Nagraj (Dead) through LRs. v. Rajmani, (2025) INSC 478.) 18.6 The opposite party (the respondent) must be given a fair and proper opportunity to contest the new question. Parties must be put on notice and be allowed to present their arguments on the newly framed question. Framing a question while dictating the judgment without hearing the parties would be improper. ( Suresh Lataruji Ramteke v. Sumanbai Pandurang Petkar, (2023) 17 SCC 624) 19. The ratio of the precedents is that the High Court is competent and endowed with discretionary jurisdiction to 8 2026:HHC:35191 formulate a substantial question of law not stated when the second appeal was admitted. The High Court is entitled to formulate an additional substantial question of law for reasons to be recorded if the High Court is of the view that the case involves such a question of law. The proviso to sub-section 5 of Section 100 of the CPC comes into operation in exceptional cases, albeit for strong and convincing reasons to be speci%cally recorded by the High Court. Respondent Nos. 1 to 5 have pleaded a lack of a sound disposing state of mind in the late Pius. The pleadings refer to the line of treatment given to the late Pius. The plea needed for invoking Section 67 of the Act, either by choice or inadvertence, is not pleaded by Respondent Nos. 1 to 5. Issue No. 1 deals with whether Exhibit B-3 will is valid and genuine. Mr Mathai does not dispute that the issue ought to have been dierent, and from the expressions used in the issue, consideration falls under Section 100(5) of the CPC. 10. In the present case, the application mentions the factual dispute between the parties. It was rightly submitted on behalf of the respondents that it is impermissible to adjudicate the factual dispute between the parties in the regular second appeal. No reason has been assigned as to why the substantial question of law was not proposed in the memorandum of appeal and is being sought to be added after the expiry of 19 years from the date of %ling of the appeal. Moreover, the pleas taken in the application are already covered in the substantial question of law framed by the Court. Therefore, there are no strong and 9 2026:HHC:35191 convincing reasons to frame the proposed substantial question of law. 11. Hence, the application fails and is dismissed. (Rakesh Kainthla) Judge 20th August, 2026 (Chander)