2001 Supreme(SC) 246

2001(1) Supreme 642
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti & Brijesh Kumar, JJ.
Santosh Hazari -Appellant
versus
Purushottam Tiwari (Dead) by LRs. -Respondents
Civil Appeal No. 1117 of 2001
(Arising out of SLP (C) No. 7282/99)
Decided on 8-2-2001
Counsel for the Parties :
For the Appellant : Jos Chiramal and S.B. Upadhyay, Advocates.
For the Respondents : K.N. Shukla, Sr. Advocate, Ms. Sushila Shukla, B.N. Jha and Shiv Sagar Tiwari, Advocates.

IMPORTANT POINT
Once the High Court notices that there is failure on the part of the appellant in not discharging the statutory obligation cast on him by sub-section (3) of Section 100 of the Code, on account of the substantial question of law involved in the appeal having not been stated, much less precisely, in the memorandum of second appeal, ordinarily an opportunity to frame such question should have been afforded to the appellant unless the deficiency was brought to the notice of the appellant previously by the High Court Registry or the court and yet the appellant had persisted in his default.

Headnote:(i) Code of Civil Procedure, 1908 -Section 100-Second Appeal-Question of law-Framing of question of law is a sine qua non for exercise of jurisdiction-Obligation is cast on appellant to precisely state in memorandum of appeal substantial question of law involved-High Court must be satisfied that substantial question of law is involved.

       The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on substantial question of law involved in the case . An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case. In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated, by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction. (Paras 9 & 10)

       (ii) Code of Civil Procedure, 1908 -Section 100-Second appeal- Substantial question of law -Meaning/connotation of.

       The phrase substantial question of law , as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying question of law , means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial , a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (Paras 12 & 14)

       (iii) Code of Civil Procedure, 1908-Section 96-First appeal-Jurisdiction of first appellate Court-Nature and scope of-Duty of first appellate Court.

       The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact. The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one. (Para 15)

       (iv) Code of Civil Procedure, 1908-Section 100-Second appeal -Disposal without framing substantial question of law-Legality of-First appellate Court reversing findings on question of possession and dispossession in a very cryptic manner-Memo of second appeal not precisely stating question of law involved-Dismissal of second appeal in limine stating matter stood concluded by findings of fact-Unsustainable-High Court ought to have afforded appellant an opportunity to frame question of law-Case remitted back to High Court to decide appeal afresh.

       Prima facie we find the first appellate Court did not discharge the duty cast on it as a Court of first appeal. The High Court having noticed failure on the part of the appellant in not discharging the statutory obligation cast on him by sub-section (3) of Section 100 of the Code, on account of the substantial question of law involved in the appeal having not been stated, much less precisely, in the memorandum of second appeal, ordinarily an opportunity to frame such question should have been afforded to the appellant unless the deficiency was brought to the notice of the appellant previously by the High Court Registry or the court and yet the appellant had persisted in his default. That was not done. The appeal is allowed. The case is remitted back to the High Court for hearing and deciding the second appeal fresh. (Paras 16 & 17)