Supreme Court of India
SUDAM KISAN GAVANE (D) THR. LRS. & ORS. versus MANIK ANANTA SHIKKETOD (D) BY LRS. & ORS. on 29 August 2019
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70
SUPREME COURT REPORTS
[2019] 12 S.C.R.
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SUDAM KISAN GAVANE (D) THR. LRS. & ORS.
v.
MANIK ANANTA SHIKKETOD (D) BY LRS. & ORS.
(Civil Appeal No. 5272 of 2010)
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AUGUST 29, 2019
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Code of Civil Procedure, 1908: s.100 – Non-framing ofsubstantial questions of law at the time of dictation of the judgment– Held: This procedure is not fair to the parties – The parties mustCknow what are the substantial questions of law which the Court isrequired to answer in a particular case – It is only then that theparties and their counsel can properly assist the Court – As pers.100, an appeal can only lie if there is a substantial question oflaw involved in the appeal – Sub-section (3) states that theDmemorandum of appeal filed under s.100 should precisely state thesubstantial question of law involved in the appeal – It is only if theHigh Court is satisfied that a substantial question of law is involvedin the case that it shall formulate that question – A duty is cast uponHigh Court to formulate the substantial questions of law in terms ofsub-section (4) of s.100 – Therefore, normally the order of admissionEof the appeal should clearly indicate on what substantial questionsof law the appeal has been admitted – Even if High Court is of theview that the substantial questions of law, as framed in thememorandum of appeal, are substantial questions of law, the orderadmitting the appeal should specifically state what are the questionsFof law on which the appeal is admitted – Thus, hearing of the appealshould revolve around the substantial questions of law and the Courtat the final hearing cannot go beyond the substantial questions oflaw – If at the time of final hearing, the Court feels that there issome other substantial question(s) of law involved, it is not debarredfrom formulating that question even at that stage but hearing willGhave to be limited to substantial questions of law – Sub-section (5)also clearly lays down that the respondent has a right to urge thatthe substantial question(s) of law, as formulated, do not actuallyarise for consideration or that they are not substantial questions oflaw.
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Code of Civil Procedure, 1908: s.100, proviso – The provisoto s.100 makes it clear that the Court has the power to hear theappeal from any substantial questions of law not formulated by it,if it is satisfied that the case involves such questions – However, insuch eventuality, the Court has to record its reasons for formulatingsuch questions of law – This obviously means that the Court willpass a reasoned order while formulating the substantial question(s)of law at this stage – The natural corollary is that the parties haveto be heard after the framing of such substantial questions of law –The hearing cannot be prior to the substantial questions of law.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5272of 2010
From the Judgment and Order dated 10.06.2009 of the HighCourt of Judicature of Judicature of Bombay, Bench at Aurangabad inSecond Appeal No.281 of 1989.
Nishant R. Katneshwarkar, Anoop Kandari, B. Sridhar, Advs. forthe Appellants.
Sudhanshu S. Choudhari, Adv. for the Respondents.
The following Order of the Court was passed :
O R D E R
1. Without expressing any opinion on the merits of the case, wefeel this case should be remanded to the High Court.
2. The second appeal under Section 100 of the Code of CivilProcedure came up for admission before the High Court on 11.06.1990.The High Court admitted the appeal without framing any question oflaw and the order reads:
3. “Heard. Admit”
4. The appeal came up for hearing on 02.05.2009. Argumentswere heard and judgment was reserved. The order dated 02.05.2009also does not indicate that any question(s) of law was framed on thatdate. Thereafter, judgment was delivered on 10.06.2009. This judgmentmakes mention of certain substantial questions of law. It is obvious thatthese substantial questions of law were framed by the learned Judge atthe time of dictation of the judgment. This procedure, in our opinion, is AB
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Anot fair to the parties. The parties must know what are the substantialquestions of law which the Court is required to answer in a particularcase. It is only then that the parties and their counsel can properly assistthe Court.
5. Section 100 of Code of Civil Procedure reads as under:B
“100. Second appeal - (1) Save as otherwise expressly providedin the body of this Code or by any other law for the time being inforce, an appeal shall lie to the High Court from every decreepassed in appeal by any Court subordinate to the High Court, ifthe High Court is satisfied that the case involves a substantialCquestion of law.
(2) An appeal may lie under this section from an appellate decreepassed ex parte.
(3) In an appeal under this section, the memorandum of appealshall precisely state the substantial question of law involved in theDappeal.
(4) Where the High Court is satisfied that a substantial questionof law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated andEthe respondent shall, at the hearing of the appeal, be allowed toargue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to takeaway or abridge the power of the Court to hear, for reasons to berecorded, the appeal on any other substantial question of law, notformulated by it, if it is satisfied that the case involves suchFquestion.”
6. A bare reading of Section 100 of Code of Civil Procedure makesit abundantly clear that an appeal can only lie if there is a substantialquestion of law involved in the appeal. Sub-section (3) makes it clearthat the memorandum of appeal filed under Section 100 of Code of CivilGProcedure should precisely state the substantial question of law involvedin the appeal. It is only if the High Court is satisfied that a substantialquestion 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 questionsof law in terms of sub-section (4) of Section 100 of Code of CivilHProcedure.
7. Therefore, normally the order of admission of the appeal shouldclearly indicate on what substantial questions of law the appeal has beenadmitted. Even if the High Court is of the view that the substantialquestions of law, as framed in the memorandum of appeal, are substantialquestions of law, the order admitting the appeal should specifically statewhat 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 bedismissed at the threshold.
8. Sub-section (5) mandates that the appeal shall be heard on thequestions so formulated. It is, thus, clear that the hearing of the appealshould revolve around the substantial questions of law and the Court atthe final hearing cannot go beyond the substantial questions of law. Wewould, however, like to make it clear that if at the time of final hearing,the Court feels that there is some other substantial question(s) of lawinvolved, it is not debarred from formulating that question even at thatstage 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 tourge that the substantial question(s) of law, as formulated, do not actuallyarise for consideration or that they are not substantial questions of law.
9. The proviso to Section 100 of Code of Civil Procedure makesit clear that the Court has the power to hear the appeal from anysubstantial questions of law not formulated by it if it is satisfied that thecase involves such questions. However, it is important to note, that insuch eventuality the Court has to record its reasons for formulating suchquestions of law. This obviously means that the Court will pass a reasonedorder while formulating the substantial question(s) of law at this stage.The natural corollary is that the parties have to be heard after the framingof such substantial questions of law. The hearing cannot be prior to thesubstantial questions of law. We are clearly of the view that the HighCourt erred in hearing the appeal finally when questions of law have notbeen framed and formulated the questions of law only in the judgment.
10. Therefore, we set aside the order of the High Court on theshort ground that the substantial questions of law were not framed beforearguments were heard.
11. We remand the matter to the High Court and request the HighCourt to decide the questions of law after hearing the parties. We giveliberty to the High Court to reframe the questions of law after hearing AB
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Athe parties. We further request the High Court to treat this case as asecond appeal having been filed in the year 1990 and give it priorityaccordingly.
It is stated that respondent no.2 has died and his legalrepresentatives are not brought on record. In view of the order, whichBwe have passed, we do not want any further delay in the appeal andleave it to the High Court to decide the effect of the death of respondentno.2 on the appeal.
The appeal is allowed in the aforesaid terms.
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Devika Gujral
Appeal allowed.
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