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2019 Supreme(SC) 2282
SUPREME COURT OF INDIA
Deepak Gupta, Aniruddha Bose, JJ.
Sudam Kisan Gavane (d) Thr. Lrs. & Ors. - Appellants
Versus
Manik Ananta Shikketod (d) By Lrs. & Ors. - Respondents
Civil Appeal No. 5272 of 2010
Decided On : 29-08-2019
Nishant Ramakantrao Katneshwarkar, Anoop Kandari and B. Sreedhar, Advs. for the Appellant; Sudhanshu S. Choudhari, Advocate for the Respondent
Procedural requirements under Section 100 of the Code of Civil Procedure must be strictly followed, including the precise statement and formulation of substantial questions of law before the hearing of the appeal.
Headnote:
ORDER - Remand to High Court - Code of Civil Procedure, Section 100 - The judgment discusses the procedural requirements under Section 100 of the Code of Civil Procedure, emphasizing the need for the High Court to precisely state the substantial questions of law involved in the appeal, formulate those questions, and hear the appeal based on the formulated questions. The court sets aside the High Court's order due to the failure to frame substantial questions of law before hearing arguments and remands the matter to the High Court with instructions to decide the questions of law after hearing the parties.
Fact of the Case:
The court orders the remand of the case to the High Court due to procedural irregularities.
Finding of the Court:
The court finds that the High Court erred in hearing the appeal without framing substantial questions of law and sets aside the order, remanding the matter to the High Court.
Issues: Procedural irregularities in the hearing of the appeal under Section 100 of the Code of Civil Procedure.
Ratio Decidendi: The High Court must precisely state and formulate substantial questions of law before hearing the appeal, and the hearing must be limited to the substantial questions of law formulated.
Final Decision: The appeal is allowed, and the matter is remanded to the High Court with instructions to decide the questions of law after hearing the parties.
ORDER
1. Without expressing any opinion on the merits of the case, we feel this case should be remanded to the High Court.
2. 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
3. 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 framed by the learned Judge at the time of dictation of the judgment. This procedure, in our opinion, is not fair 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.
4. 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.
5. 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 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.
6. 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.
7. 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 some other substantial question(s) of law involved, it is not debarred from formulating that question even at that stage but hearing will
