Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5272 OF 2010
SUDAM KISAN GAVANE (D) THR. LRS. & ORS. APPELLANT(S)
VERSUS
MANIK ANANTA SHIKKETOD (D) BY LRS. & ORS. RESPONDENT(S)
O R D E R
Without expressing any opinion on the merits of the
case, we feel this case should be remanded to the
High Court.
The second appeal under Section 100 of the Code of
Civil Procedure came up for admission before the High
Court on 11.06.1990. The High Court admitted the appeal
without framing any question of law and the order reads:
"Heard. Admit"
The appeal came up for hearing on 02.05.2009.
Arguments were heard and judgment was reserved. The order
dated 02.05.2009 also does not indicate that any
question(s) of law was framed on that date. Thereafter,
judgment was delivered on 10.06.2009. This judgment makes
mention of certain substantial questions of law. It is
obvious that these substantial questions of law were
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2019.09.02
10:57:55 IST
Reason:
framed by the learned Judge at the time of dictation of
the judgment. This procedure, in our opinion, is not fair
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to the parties. The parties must know what are the
substantial questions of law which the Court is required
to answer in a particular case. It is only then that the
parties and their counsel can properly assist the Court.
Section 100 of Code of Civil Procedure reads as
under:
" 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 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 satisfied
that the case involves such question."
A bare reading of Section 100 of Code of Civil
Procedure makes it abundantly clear that an appeal can
only lie if there is a substantial question of law
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involved in the appeal. Sub-section (3) makes it clear
that the memorandum of appeal filed under Section 100 of
Code of Civil Procedure should precisely state the
substantial question of law involved in the appeal. It is
only if the High Court is satisfied that a substantial
question of law is involved in the case that it shall
formulate that question. A duty is cast upon the High
Court to formulate the substantial questions of law in
terms of sub-section (4) of Section 100 of Code of
Civil Procedure.
Therefore, normally the order of admission of the
appeal should clearly indicate on what substantial
questions of law the appeal has been admitted. Even if
the High Court is of the view that the substantial
questions of law, as framed in the memorandum of appeal,
are substantial questions of law, the order admitting the
appeal should specifically state what are the questions
of law on which the appeal is admitted. Obviously, if no
substantial question(s) of law arises then the appeal has
to be dismissed at the threshold.
Sub-section (5) mandates that the appeal shall be
heard on the questions so formulated. It is, thus, clear
that the hearing of the appeal should revolve around the
substantial questions of law and the Court at the final
hearing cannot go beyond the substantial questions of
law. We would, however, like to make it clear that if at
the time of final hearing, the Court feels that there is
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some other substantial question(s) of law involved, it is
not debarred from formulating that question even at that
stage but hearing will have to be limited to substantial
questions of law. Sub-section (5) also clearly lays down
that the respondent has a right to urge that the
substantial question(s) of law, as formulated, do not
actually arise for consideration or that they are not
substantial questions of law.
The proviso to Section 100 of Code of Civil
Procedure makes it clear that the Court has the power to
hear the appeal from any substantial questions of law not
formulated by it if it is satisfied that the case
involves such questions. However, it is important to
note, that in such eventuality the Court has to record
its reasons for formulating such questions of law. This
obviously means that the Court will pass a reasoned order
while formulating the substantial question(s) of law at
this stage. The natural corollary is that the parties
have to be heard after the framing of such substantial
questions of law. The hearing cannot be prior to the
substantial questions of law. We are clearly of the view
that the High Court erred in hearing the appeal finally
when questions of law have not been framed and formulated
the questions of law only in the judgment.
Therefore, we set aside the order of the High Court
on the short ground that the substantial questions of law
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were not framed before arguments were heard.
We remand the matter to the High Court and request
the High Court to decide the questions of law after
hearing the parties. We give liberty to the High Court to
reframe the questions of law after hearing the parties.
We further request the High Court to treat this case as a
second appeal having been filed in the year 1990 and give
it priority accordingly.
It is stated that respondent no.2 has died and his
legal representatives are not brought on record. In view
of the order, which we have passed, we do not want any
further delay in the appeal and leave it to the High
Court to decide the effect of the death of respondent
no.2 on the appeal.
The appeal is allowed in the aforesaid terms.
...................J.
(DEEPAK GUPTA)
...................J.
(ANIRUDDHA BOSE)
New Delhi
August 29, 2019
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ITEM NO.108 COURT NO.13 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).5272/2010
SUDAM KISAN GAVANE (DEAD) THROUGH LRS. & ORS. Appellant(s)
VERSUS
MANIK ANANTA SHIKKETOD(D) BY LRS. & ORS. Respondent(s)
Date : 29-08-2019 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE DEEPAK GUPTA
HON'BLE MR. JUSTICE ANIRUDDHA BOSE
For Appellant(s)
Mr. Nishant R. Katneshwarkar, Adv.
Mr. Anoop Kandari, Adv.
Mr. B. Sridhar, AOR
For Respondent(s)
Mr. Sudhanshu S. Choudhari, AOR
UPON hearing the counsel the Court made the following
O R D E R
The appeal is allowed in terms of the signed order.
Pending application(s), if any, stands disposed of.
(ARJUN BISHT) (RENU KAPOOR)
COURT MASTER (SH) BRANCH OFFICER
(signed order is placed on the file)
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