Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.4666 OF 2019
(Arising out of S.L.P.(C) No.13571 of 2012)
Arulmighu Nellukadai
Mariamman Tirukkoil ….Appellant(s)
VERSUS
Tamilarasi (Dead) By LRs. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed against the final judgment
and order dated 30.09.2011 passed by the High
Court of Judicature at Madras in Second Appeal
No.365 of 2009 whereby the High Court allowed the
Signature Not Verified
Digitally signed by
ASHOK RAJ SINGH
Date: 2019.05.07
17:05:03 IST
Reason:
said second appeal filed by the original respondent
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herein and set aside the judgment and decree dated
08.12.2008 of the Subordinate Judge,
Nagapattinam in A.S. No.30/2008 and dismissed
the suit filed by the appellant herein.
3. A f ew facts need mention hereinbelow for the
disposal of this appeal, which involves a short
question.
4. This appeal is filed by the plaintiff, who
succeeded in the Trial Court and the first Appellate
Court but lost in second appeal filed by the
defendant (original respondent herein) in the High
Court.
5. The appellant (plaintiff) filed a civil suit against
the original respondent (defendant) for her eviction
from the suit property. The respondent contested
the suit.
6. By Judgment and decree dated 11.10.2007,
the District Munsif, Nagapattinam decreed the suit.
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The defendant (original respondent) felt aggrieved
and filed first appeal (AS No. 30/2008) before the
Subordinate Judge. By judgment and decree dated
08.12.2008, the first Appellate Court dismissed the
appeal and affirmed the judgment and decree
passed by the District Munsif. The defendant felt
aggrieved and filed second appeal in the High Court.
By impugned judgment, the High Court allowed the
appeal filed by the defendant and while setting aside
the order impugned in the second appeal dismissed
the suit filed by the appellant(plaintiff), which has
given rise to filing of the present appeal by way of
special leave in this Court.
7. So, the short question, which arises for
consideration in this appeal, is whether the High
Court was justified in allowing the second appeal
filed by the defendant (original respondent herein).
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8. During the pendency of this appeal, the sole
respondent died and her legal representatives were
brought on record by this Court’s order dated
29.07.2016.
9. Heard Mr. V. Prabhakar, learned counsel for
the appellant and Mrs. B. Sunita Rao, learned
counsel for the respondents.
10. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are constrained to allow this appeal, set aside the
impugned judgment and remand the case to the
High Court for deciding the appeal afresh on merits
in accordance with law.
11. The need to remand the case has occasioned
because we find that the High Court failed to frame
any substantial question of law arising in the case
while admitting the appeal as required under
Section 100 (4) of the Code of Civil Procedure, 1908
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(hereinafter referred to as “CPC”) and further failed
to decide the appeal as provided under Section 100
(5) of the CPC.
12. It is noticed that the High Court framed two
substantial questions of law (see Para 7 of the
impugned judgment) for the first time in the
impugned judgment itself. In other words, what
was required to be done by the High Court at the
time of admission of the appeal to formulate a
question of law after hearing the appellant as
provided under Section 100 (4) of the CPC, but the
High Court did it in the impugned judgment.
Similarly, the High Court could have taken recourse
to the powers conferred by proviso to Section 100
(5) of the CPC for framing any additional question of
law at the time of final hearing of the appeal by
assigning reasons for framing additional question, if
it considered that any such question was involved.
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It was, however, not done. Instead, the High Court
framed the questions for the first time while
delivering the impugned judgment.
13. In our considered opinion, the procedure and
the manner in which the High Court decided the
second appeal regardless of the fact whether it was
allowed or dismissed cannot be countenanced. It is
not in conformity with the mandatory procedure
laid down in Section 100 of the CPC.
14. Recently, this Court had an occasion to
examine this very question in Surat Singh (Dead)
vs. Siri Bhagwan & Ors., [(2018) 4 SCC 562]. The
law is explained in Paras 20 to 35 of this decision
which read as under:
“ 20. Section 100 of the Code reads as under:
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“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 satisfied 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 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 subsection 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
formulated by it, if it is satisfied that the case
involves such question.”
21. Subsection (1) of Section 100 says that
the second appeal would be entertained by the
High Court only if the High Court is "satisfied"
that the case involves a "substantial question of
law". Sub section (3) makes it obligatory upon
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the appellant to precisely state in memo of
appeal the "substantial question of law" involved
in the appeal. Subsection (4) provides that
where the High Court is satisfied that any
substantial question of law is involved in the
case, it shall formulate that question. In other
words, once the High Court is satisfied after
hearing the appellant or his counsel, as the case
may be, that the appeal involves a substantial
question of law, it has to formulate that
question and then direct issuance of notice to
the respondent of the memo of appeal along
with the question of law framed by the High
Court. Subsection (5) provides that the appeal
shall be heard only on the question formulated
by the High Court under subsection (4). In
other words, the jurisdiction of the High Court
to decide the second appeal is confined only to
the question framed by the High Court under
subsection(4). The respondent, however, at the
time of hearing of the appeal is given a right
under subsection (5) to raise an objection that
the question framed by the High Court under
subsection (4) does not involve in the appeal.
The reason for giving this right to the
respondent for raising such objection at the
time of hearing is because the High Court
frames the question at the admission stage
which is prior to issuance of the notice of appeal
to the respondent. In other words, the question
is framed behind the back of respondent and,
therefore, subsection(5) enables him to raise
such objection at the time of hearing that the
question framed does not arise in the appeal.
The proviso to subsection (5), however, also
recognizes the power of the High Court to hear
the appeal on any other substantial question of
law which was not initially framed by the High
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Court under subsection (4). However, this
power can be exercised by the High Court only
after assigning the reasons for framing such
additional question of law at the time of hearing
of the appeal.
22. Adverting to the facts of this case at
hand, we are at a loss to understand as to how
the High Court while passing a final judgment in
its concluding para could frame the substantial
question of law for the first time and
simultaneously answered the said question in
appellant’s favour. Obviously, the learned
Judge must have done it by taking recourse to
subsection (4) of Section 100 of the Code.
23. Here is the case where the High Court
was under a legal obligation to frame the
substantial question at the time of admission of
the appeal after hearing the appellant or/and
his counsel under subsection (4) of Section 100
of the Code, but the High Court did it while
passing the final judgment in its concluding
para.
24. Such novel procedure adopted by the
High Court, in our considered opinion, is wholly
contrary to the scheme of Section 100 of the
Code and renders the impugned judgment
legally unsustainable.
25. In our considered opinion, the High
Court had no jurisdiction to frame the
substantial question at the time of writing of its
final judgment in the appeal except to the
extent permitted under subsection (5). The
procedure adopted by the High Court, apart
from it being against the scheme of Section 100
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of the Code, also resulted in causing prejudice
to the respondents because the respondents
could not object to the framing of substantial
question of law. Indeed, the respondents could
not come to know on which question of law, the
appeal was admitted for final hearing.
26. In other words, since the High Court
failed to frame any substantial question of law
under subsection(4) of Section 100 at the time
of admission of the appeal, the respondents
could not come to know on which question of
law, the appeal was admitted for hearing.
27. It cannot be disputed that subsection (5)
gives the respondents a right to know on which
substantial question of law, the appeal was
admitted for final hearing. Subsection (5)
enables the respondents to raise an objection at
the time of final hearing that the question of
law framed at the instance of the appellant does
not really arise in the case.
28. Yet, the other reason is that the
respondents are only required to reply while
opposing the second appeal to the question
formulated by the High Court under subsection
(4) and not beyond that. If the question of law is
not framed under subsection (4) at the time of
admission or before the final hearing of the
appeal, there remains nothing for the
respondent to oppose the second appeal at the
time of hearing. In this situation, the High
Court will have no jurisdiction to decide such
second appeal finally for want of any substantial
question(s) of law.
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29. The scheme of Section 100 is that once
the High Court is satisfied that the appeal
involves a substantial question of law, such
question shall have to be framed under sub
section(4) of Section 100. It is the framing of
the question which empowers the High Court to
finally decide the appeal in accordance with the
procedure prescribed under subsection (5).
Both the requirements prescribed in sub
sections (4) and (5) are, therefore, mandatory
and have to be followed in the manner
prescribed therein. Indeed, as mentioned
supra, the jurisdiction to decide the second
appeal finally arises only after the substantial
question of law is framed under subsection (4).
There may be a case and indeed there are cases
where even after framing a substantial question
of law, the same can be answered against the
appellant. It is, however, done only after
hearing the respondents under subsection (5).
30. If, however, the High Court is satisfied
after hearing the appellant at the time of
admission that the appeal does not involve any
substantial question of law, then such appeal is
liable to be dismissed in limine without any
notice to the respondents after recording a
finding in the dismissal order that the appeal
does not involve any substantial question of law
within the meaning of subsection (4). It is
needless to say that for passing such order in
limine , the High Court is required to assign the
reasons in support of its conclusion.
31. It is, however, of no significance,
whether the respondent has appeared at the
time of final hearing of the appeal or not. The
High Court, in any case, has to proceed in
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accordance with the procedure prescribed under
Section 100 while disposing of the appeal,
whether in limine or at the final hearing stage.
32. It is a settled principle of rule of
interpretation that whenever a statute requires
a particular act to be done in a particular
manner then such act has to be done in that
manner only and in no other manner. (See
Interpretation of Statutes by G.P. Singh, IXth
Edition page 347 and Baru Ram vs. Parsanni
(Smt.), AIR 1959 SC 93).
33. The aforesaid principle applies to the
case at hand because, as discussed above, the
High Court failed to follow the procedure
prescribed under Section 100 of the Code while
allowing the second appeal and thus committed
a jurisdictional error calling for interference by
this Court in the impugned judgment.
34. While construing Section 100, this Court
in the case of Santosh Hazari vs. Purushottam
Tiwari (Deceased) by L.Rs., (2001) 3 SCC 179
succinctly explained the scope, the jurisdiction
and what constitutes a substantial questions of
law under Section 100 of the Code.
35. It is, therefore, the duty of the High
Court to always keep in mind the law laid down
in Santosh Hazari (supra) while formulating the
question and deciding the second appeal.”
15. In the light of the foregoing discussion, we
cannot sustain the impugned judgment which, in
our view, is not in conformity with the mandatory
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requirements of Section 100 of the CPC and hence
calls for interference in this appeal.
16. The appeal thus deserves to be allowed and it
is accordingly allowed. The impugned judgment is
set aside. The case is remanded to the High Court
for deciding the second appeal afresh in accordance
with law. The High Court will frame proper
substantial question(s) of law after hearing the
appellant and if it finds that any substantial
question(s) of law arises in the case, it will first
formulate such question(s) and then accordingly
decide the appeal finally on the question(s) framed
in accordance with law.
17. We, however, make it clear that we have not
expressed any opinion on the merits of the
controversy involved in this appeal, but only formed
an opinion to remand the case due to the infirmity
noticed in the manner in which the second appeal
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was decided. The High Court will, therefore, decide
the second appeal uninfluenced by any of our
observations made in this order.
18. Since the matter is quite old, we request the
High Court to decide the second appeal
expeditiously, preferably within six months from the
date of receipt of this judgment.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[DINESH MAHESHWARI]
New Delhi;
May 07, 2019
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