ARULMIGHU NELLUKADAI MARIAMMAN versus TAMILARASI (DEAD) BY LRS. on 7 May 2019

ARULMIGHU NELLUKADAI MARIAMMAN TIRUKKOIL

v.

TAMILARASI (DEAD) BY LRS.

(Civil Appeal No. 4666 of 2019)

MAY 07, 2019

[ABHAY MANOHAR SAPRE AND

DINESH MAHESHWARI, JJ.]

Code of Civil Procedure, 1908 – s. 100 – Second appeal –Appellant-Plaintiff filed a civil suit against the original respondent-defendant for her eviction from the suit property – Trial court decreedthe suit – First appellate Court affirmed the judgment of the trialcourt – However, in second appeal, the High Court set aside theimpugned order and dismissed the suit filed by the appellant – Onappeal, held: High Court failed to frame any substantial questionof law arising in the case while admitting the appeal as required u/s. 100(4) CPC and further failed to decide the appeal as providedu/s.100(5) CPC – Instead, the High Court framed the questions forthe first time while delivering the impugned judgment – The procedureand manner in which the High Court decided the second appealwas not in conformity with the mandatory procedure laid down ins.100 CPC – Thus, impugned judgment set aside – Case remandedto the High Court for deciding the second appeal afresh inaccordance with law.

Allowing the appeal, the Court

HELD:1. The High Court failed to frame any substantialquestion of law arising in the case while admitting the appeal asrequired under Section 100 (4) of the Code of Civil Procedure,1908 and further failed to decide the appeal as provided underSection 100 (5) of the CPC. [Para 11] [363-H; 364-A]

2. It is noticed that the High Court framed two substantialquestions of law for the first time in the impugned judgment itself.In other words, what was required to be done by the High Courtat the time of admission of the appeal to formulate a question oflaw after hearing the appellant as provided under Section 100 (4)

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Aof the CPC, but the High Court did it in the impugned judgment.Similarly, the High Court could have taken recourse to the powersconferred by proviso to Section 100 (5) of the CPC for framingany additional question of law at the time of final hearing of theappeal by assigning reasons for framing additional question, if itconsidered that any such question was involved. It was, however,Bnot done. Instead, the High Court framed the questions for thefirst time while delivering the impugned judgment. [Para 12][364-B-D]

3. The procedure and the manner in which the High Courtdecided the second appeal regardless of the fact whether it wasCallowed or dismissed cannot be countenanced. It is not inconformity with the mandatory procedure laid down in Section100 of the CPC. [Para 13] [362-C]

4. In the light of the foregoing discussion, the impugnedjudgment cannot be sustained as it is not in conformity with theDmandatory requirements of Section 100 of the CPC and hencecalls for interference in this appeal. [Para 15] [369-A-B]

Surat Singh (Dead) v. Siri Bhagwan & Ors. (2018) 4SCC 562 : [2018] 1 SCR 1063 – relied on.

Case Law Reference

E[2018] 1 SCR 1063 relied onPara 14CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4666of 2019.

From the Judgment and Order dated 30.09.2011 of the High CourtFof Judicature at Madras in S.A. No. 365 of 2009.

V. Prabhakar, Ms. Jyoti Parasher, N. J. Ramchandar, R.Chandrachud, Advs. for the Appellant.

Mrs. B. Sunita Rao, Adv. for the Respondents.

The Judgment of the Court was delivered byG

ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is filed against the final judgment and order dated30.09.2011 passed by the High Court of Judicature at Madras in SecondAppeal No.365 of 2009 whereby the High Court allowed the said secondappeal filed by the original respondent herein and set aside the judgmentH

and decree dated 08.12.2008 of the Subordinate Judge, Nagapattinam inA.S. No.30/2008 and dismissed the suit filed by the appellant herein.

3. A few facts need mention hereinbelow for the disposal of thisappeal, which involves a short question.

4. This appeal is filed by the plaintiff, who succeeded in the TrialCourt and the first Appellate Court but lost in second appeal filed by thedefendant (original respondent herein) in the High Court.

5. The appellant (plaintiff) filed a civil suit against the originalrespondent (defendant) for her eviction from the suit property. Therespondent contested the suit.

6. By Judgment and decree dated 11.10.2007, the District Munsif,Nagapattinam decreed the suit. The defendant (original respondent)felt aggrieved and filed first appeal (AS No. 30/2008) before theSubordinate Judge. By judgment and decree dated 08.12.2008, the firstAppellate Court dismissed the appeal and affirmed the judgment anddecree passed by the District Munsif. The defendant felt aggrieved andfiled second appeal in the High Court. By impugned judgment, the HighCourt allowed the appeal filed by the defendant and while setting asidethe order impugned in the second appeal dismissed the suit filed by theappellant(plaintiff), which has given rise to filing of the present appealby way of special leave in this Court.

7. So, the short question, which arises for consideration in thisappeal, is whether the High Court was justified in allowing the secondappeal filed by the defendant (original respondent herein).

8. During the pendency of this appeal, the sole respondent diedand her legal representatives were brought on record by this Court’sorder dated 29.07.2016.

9. Heard Mr. V. Prabhakar, learned counsel for the appellant andMrs. B. Sunita Rao, learned counsel for the respondents.

10. Having heard the learned counsel for the parties and on perusalof the record of the case, we are constrained to allow this appeal, setaside the impugned judgment and remand the case to the High Court fordeciding the appeal afresh on merits in accordance with law.

11. The need to remand the case has occasioned because we findthat the High Court failed to frame any substantial question of law arising A

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Ain the case while admitting the appeal as required under Section 100 (4)of the Code of Civil Procedure, 1908 (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 substantialBquestions of law (see Para 7 of the impugned judgment) for the firsttime in the impugned judgment itself. In other words, what was requiredto be done by the High Court at the time of admission of the appeal toformulate a question of law after hearing the appellant as provided underSection 100 (4) of the CPC, but the High Court did it in the impugnedjudgment. Similarly, the High Court could have taken recourse to theCpowers conferred by proviso to Section 100 (5) of the CPC for framingany additional question of law at the time of final hearing of the appealby assigning reasons for framing additional question, if it considered thatany such question was involved. It was, however, not done. Instead, theHigh Court framed the questions for the first time while delivering theDimpugned judgment.

13. In our considered opinion, the procedure and the manner inwhich the High Court decided the second appeal regardless of the factwhether it was allowed or dismissed cannot be countenanced. It is not inconformity with the mandatory procedure laid down in Section 100 ofEthe CPC.

14. Recently, this Court had an occasion to examine this veryquestion in Surat Singh (Dead) vs. Siri Bhagwan & Ors., [(2018) 4SCC 562]. The law is explained in Paras 20 to 35 of this decision whichread as under:F“20. Section 100 of the Code reads as under:

“100. Second appeal.- (1) Save as otherwise expresslyprovided in the body of this Code or by any other law forthe time being in force, an appeal shall lie to the High Courtfrom every decree passed in appeal by any CourtGsubordinate to the High Court, if the High Court is satisfiedthat the case involves a substantial question of law. (2) Anappeal may lie under this section from an appellate decreepassed ex parte. (3) In an appeal under this section, thememorandum of appeal shall precisely state the substantialquestion of law involved in the appeal. (4) Where the High H

ARULMIGHU NELLUKADAI MARIAMMAN TIRUKKOIL v.TAMILARASI (DEAD) BY LRS. [ABHAY MANOHAR SAPRE, J.]

Court is satisfied that a substantial question of law isinvolved in any case, it shall formulate that question.(5) The appeal shall be heard on the question so formulatedand the respondent shall, at the hearing of the appeal, beallowed to argue that the case does not involve suchquestion:Provided that nothing in this sub-section shall bedeemed to take away or abridge the power of the court tohear, for reasons to be recorded, the appeal on any othersubstantial question of law formulated by it, if it is satisfiedthat the case involves such question.”

21. Sub-section (1) of Section 100 says that the secondappeal would be entertained by the High Court only if theHigh Court is “satisfied” that the case involves a“substantial question of law”. Sub- section (3) makes itobligatory upon the appellant to precisely state in memo ofappeal the “substantial question of law” involved in theappeal. Sub-section (4) provides that where the High Courtis satisfied that any substantial question of law is involvedin the case, it shall formulate that question. In other words,once the High Court is satisfied after hearing the appellantor his counsel, as the case may be, that the appeal involvesa substantial question of law, it has to formulate that questionand then direct issuance of notice to the respondent of thememo of appeal along with the question of law framed bythe High Court. Sub-section (5) provides that the appealshall be heard only on the question formulated by the HighCourt under sub-section (4). In other words, the jurisdictionof the High Court to decide the second appeal is confinedonly to the question framed by the High Court under sub-section(4). The respondent, however, at the time of hearingof the appeal is given a right under sub-section (5) to raisean objection that the question framed by the High Courtunder sub-section (4) does not involve in the appeal. Thereason for giving this right to the respondent for raisingsuch objection at the time of hearing is because the HighCourt frames the question at the admission stage which isprior to issuance of the notice of appeal to the respondent.In other words, the question is framed behind the back of AB

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respondent and, therefore, sub-section(5) enables him toraise such objection at the time of hearing that the questionframed does not arise in the appeal. The proviso to sub-section (5), however, also recognizes the power of the HighCourt to hear the appeal on any other substantial questionof law which was not initially framed by the High Courtunder sub-section (4). However, this power can beexercised by the High Court only after assigning thereasons for framing such additional question of law at thetime of hearing of the appeal.

22. Adverting to the facts of this case at hand, we are at aloss to understand as to how the High Court while passinga final judgment in its concluding para could frame thesubstantial question of law for the first time andsimultaneously answered the said question in appellant’sfavour. Obviously, the learned Judge must have done it bytaking recourse to sub-section (4) of Section 100 of theCode.

23. Here is the case where the High Court was under alegal obligation to frame the substantial question at the timeof admission of the appeal after hearing the appellant or/and his counsel under sub-section (4) of Section 100 of theCode, but the High Court did it while passing the finaljudgment in its concluding para.

24. Such novel procedure adopted by the High Court, inour considered opinion, is wholly contrary to the schemeof Section 100 of the Code and renders the impugnedjudgment legally unsustainable.

25. In our considered opinion, the High Court had nojurisdiction to frame the substantial question at the time ofwriting of its final judgment in the appeal except to theextent permitted under sub-section (5). The procedureadopted by the High Court, apart from it being against thescheme of Section 100 of the Code, also resulted in causingprejudice to the respondents because the respondentscould not object to the framing of substantial question oflaw. Indeed, the respondents could not come to know on which question of law, the appeal was admitted for finalhearing.

26. In other words, since the High Court failed to frameany substantial question of law under sub-section(4) ofSection 100 at the time of admission of the appeal, therespondents could not come to know on which question oflaw, the appeal was admitted for hearing.

27. It cannot be disputed that sub-section (5) gives therespondents a right to know on which substantial questionof law, the appeal was admitted for final hearing. Sub-section(5) enables the respondents to raise an objection at thetime of final hearing that the question of law framed at theinstance of the appellant does not really arise in the case.

28. Yet, the other reason is that the respondents are onlyrequired to reply while opposing the second appeal to thequestion formulated by the High Court under sub-section(4) and not beyond that. If the question of law is not framedunder sub-section (4) at the time of admission or beforethe final hearing of the appeal, there remains nothing forthe respondent to oppose the second appeal at the time ofhearing. In this situation, the High Court will have nojurisdiction to decide such second appeal finally for want ofany substantial question(s) of law.

29. The scheme of Section 100 is that once the High Courtis satisfied that the appeal involves a substantial questionof law, such question shall have to be framed under sub-section(4) of Section 100. It is the framing of the questionwhich empowers the High Court to finally decide the appealin accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have tobe followed in the manner prescribed therein. Indeed, asmentioned supra, the jurisdiction to decide the secondappeal finally arises only after the substantial question oflaw is framed under sub-section (4). There may be a caseand indeed there are cases where even after framing asubstantial question of law, the same can be answered AB

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against the appellant. It is, however, done only after hearingthe respondents under sub-section (5).

Issues

30. If, however, the High Court is satisfied after hearingthe appellant at the time of admission that the appeal doesnot involve any substantial question of law, then such appealis liable to be dismissed in limine without any notice to therespondents after recording a finding in the dismissal orderthat the appeal does not involve any substantial questionof law within the meaning of sub-section (4). It is needlessto say that for passing such order in limine, the High Courtis required to assign the reasons in support of its conclusion.

31. It is, however, of no significance, whether therespondent has appeared at the time of final hearing of theappeal or not. The High Court, in any case, has to proceedin accordance with the procedure prescribed under Section100 while disposing of the appeal, whether in limine or atthe final hearing stage.

32. It is a settled principle of rule of interpretation thatwhenever a statute requires a particular act to be done in aparticular manner then such act has to be done in thatmanner only and in no other manner. (See- Interpretationof Statutes by G.P. Singh, IXth Edition page 347 and BaruRam vs. Parsanni (Smt.), AIR 1959 SC 93).

33. The aforesaid principle applies to the case at handbecause, as discussed above, the High Court failed to followthe procedure prescribed under Section 100 of the Codewhile allowing the second appeal and thus committed ajurisdictional error calling for interference by this Court inthe impugned judgment.

34. While construing Section 100, this Court in the case ofSantosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs.,(2001) 3 SCC 179 succinctly explained the scope, thejurisdiction and what constitutes a substantial questions oflaw under Section 100 of the Code.

35. It is, therefore, the duty of the High Court to alwayskeep in mind the law laid down in Santosh Hazari (supra)

ARULMIGHU NELLUKADAI MARIAMMAN TIRUKKOIL v.TAMILARASI (DEAD) BY LRS. [ABHAY MANOHAR SAPRE, J.]

while formulating the question and deciding the secondappeal.”

15. In the light of the foregoing discussion, we cannot sustain theimpugned judgment which, in our view, is not in conformity with themandatory requirements of Section 100 of the CPC and hence calls forinterference in this appeal.

16. The appeal thus deserves to be allowed and it is accordinglyallowed. The impugned judgment is set aside. The case is remanded tothe High Court for deciding the second appeal afresh in accordancewith law. The High Court will frame proper substantial question(s) oflaw after hearing the appellant and if it finds that any substantialquestion(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) framedin accordance with law.

17. We, however, make it clear that we have not expressed anyopinion on the merits of the controversy involved in this appeal, but onlyformed an opinion to remand the case due to the infirmity noticed in themanner in which the second appeal was decided. The High Court will,therefore, decide the second appeal uninfluenced by any of ourobservations made in this order.

18. Since the matter is quite old, we request the High Court todecide the second appeal expeditiously, preferably within six monthsfrom the date of receipt of this judgment.

Ankit Gyan

Appeal allowed.

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