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SUPREME COURT OF INDIA
B.V. NAGARATHNA, UJJAL BHUYAN, JJ.
Hemavathi & Ors. - Appellants
Versus
V. Hombegowda & Anr. - Respondents
Civil Appeal No(s). 5780-5781 of 2023 (@ SLP (C) No(s). 19975-19976 of 2022)
Decided On : 11-09-2023
Code of Civil Procedure - The High Court can entertain a Regular Second Appeal only on a substantial question of law. The first appellate court is the final court for questions of fact. The High Court must frame substantial questions of law at the stage of admission and hear the parties on these questions. The High Court can also frame additional substantial questions of law at the final hearing.
Fact of the Case:
The appellants filed a suit seeking partition and separate possession of their shares in a property. The suit was decreed in their favor. The defendants filed a Regular Appeal seeking condonation of delay, which was dismissed. The defendants then filed a Second Appeal, which was allowed by the High Court, remanding the matter to the Trial Court for fresh adjudication. The appellants filed a Review Petition, which was dismissed. The appellants appealed against these orders.
Finding of the Court:
The High Court erred in allowing the Second Appeal without framing a substantial question of law and without hearing all the respondents. The delay in filing the Regular Appeal should not have been condoned. The matter should have been remanded to the first appellate court for consideration on merits. The impugned orders are set aside and the matters are remanded to the High Court for fresh consideration.
Ratio Decidendi: The High Court can entertain a Regular Second Appeal only on a substantial question of law. The first appellate court is the final court for questions of fact. The High Court must frame substantial questions of law at the stage of admission and hear the parties on these questions. The High Court can also frame additional substantial questions of law at the final hearing. The impugned orders did not frame any substantial question of law and were passed without hearing all the respondents. The delay in filing the Regular Appeal should not have been condoned. The matters are remanded to the High Court for fresh consideration.
Result: The impugned orders are set aside and the matters are remanded to the High Court for fresh consideration. The legal representatives of the deceased-Respondent No.2 must be brought on record. The Regular Second Appeal should be disposed of expeditiously.
JUDGMENT :
Nagarathna, J.
1. Leave granted.
2. These are two more appeals which arise from the High Court of Karnataka within a short period of time wherein, without framing the substantial question of law, Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (For short the “CPC”) is allowed. Additionally notice to respondent Nos. 1, 3 and 4 may not have been issued and served as the Second Appeal was allowed at the stage of admission and if notice had been issued and served no counsel for the said respondents had been heard. It is on the basis of the aforesaid two grounds alone, the appeals would have to be allowed and the impugned order(s) of the High Court passed in RSA No.291/2022 disposed of on 13.04.2022 and in Review Petition No.536/2022 disposed on 23.06.2022 would have to be set aside.
3. Briefly stated the facts are that the appellants herein had filed Original Suit No.552/2003 before the Court of II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, Karnataka seeking the relief of partition and separate possession of their respective shares in the suit schedule property. By judgment and decree dated 07.02.2012, the suit was decreed granting ¼ share to each of the plaintiffs (appellants herein).
4. Being aggrieved, the defendants in the said suit preferred Regular Appeal No. 1/2021 before the II Additional Senior Civil Judge, Bengaluru Rural District at Bengaluru seeking condonation of delay of 2945 days in filing the appeal. By order dated 07.02.2022, the application seeking condonation of delay was dismissed and consequently the appeal also stood dismissed and as a result the judgment and decree of the Trial Court was not interfered with.
5. Being aggrieved by the dismissal of the Regular Appeal, the defendants preferred the RSA No.291/2022. By the impugned judgment dated 13.04.2022, the appeal filed by the defendant No.1 has been allowed by condoning the delay of 2945 days in filing the Regular Appeal but the matter has been remanded to the Trial Court for a fresh adjudication reserving liberty to file additional written statement and directing the Trial Court to frame additional issues, if necessary, and to take on record the evidence of plaintiffs well as the defendant No.1 within a period of six months and to dispose of the suit within a period of six months thereafter. Further during the pendency of the suit, the parties were directed to maintain status-quo in respect of the suit property as regards possession and alienation while reserving all contentions to be kept open to be urged before the Trial Court. At this stage itself, it may be pointed out that the learned Judge of the High Court also lost sight of the fact that the first appellate court had not considered the Regular Appeal on merits but the matter has been remanded to the trial court by passing the first appellate court.
6. Being aggrieved by the judgment dated 13.04.2022 the appellants herein, who were plaintiffs in the suit which had been decreed, preferred Review Petition No.536/2022. By order dated 23.06.2022, the review petition has been dismissed. Hence, these appeals.
7. We have heard learned counsel for the appellants and learned senior counsel for the contesting respondent No.1.
8. Learned counsel for respondent No.2 submitted that respondent No.2 Venkataramanappa died during the pendency of the matter(s) before this Court on 12.01.2023 and his legal representatives have not been brought on record. He further submitted that the said Venkataramanappa had preferred R.A. No.62/2012 but had withdrawn the same and the said appeal(s) was dismissed as withdrawn on 10.08.2018.
9. In the circumstances, in view of our proposed judgment, we do not think at this stage the matter(s) would require the legal representatives of the deceased-respondent No.2 to be brought on record.
10. Learned counsel for the appellants submitted that there are two main serious errors in the impugned judgment: firstly, the Regular Secon
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