The respondent has no right to be heard at the initial stage of formulation of substantial question of law by the High Court under Order 41 Rule 11 and 12 of the Code of Civil Procedure, 1908.

( 1 ) IN this matter when this Court, after hearing Mr. Sudhis Dasgupta, learned Counsel for the appellant, was about to formulate the substantial questions of law for admission of this appeal, Mr. Bimal Chatterjee, learned Counsel for the Caveator intervened and urged that the court should hear him on behalf of the respondent-Caveator at the initial stage of formulation of the questions of law and he is entitled to point out that no such questions actually arise in this case.

( 2 ) THE issue which crops up in view of the submission of Mr. Chatterjee is whether the respondent is entitled to be heard at the initial stage when the court formulates the question. The learned Counsel for the Caveator submits that once the court formulates the question and admits the appeal for hearing, the hearing normally takes place after a considerable period of time and his client will be denied the benefit of his right which has been crystallized in the judgment and decree of the First Appellate Court. According to the learned Counsel since his client's right will come under a shadow, as a result of the admission of this appeal with the formulation of substantial questions of law, he has an immediate and contemporaneous right to point out that no such question of law exists. According to him he has lodged the CAVEAT for the purpose of joining issue at this initial stage. The learned Counsel also submits that under Order 41 Rule 11 of the Civil Procedure Code, which is a procedural provision of the Code relating to appeal, there is no express bar on the respondent from arguing at the initial stage that no such substantial question of law is involved in the case.

( 3 ) THE learned Counsel for the appellant on the other hand submits that if Order 41 Rule 11 and Order 41 Rule 12 are properly read with Section 100 of C. P. C. , it will clearly appear that at the initial stage of formulation of substantial question of law by the High Court, the respondent has no right of audience. The learned Counsel submits that the respondent can address the court only after formulation of the question and at the hearing of the appeal. The learned Counsel also submits that even though the respondent has lodged a CAVEAT, the lodging of such a CAVEAT only enables him to argue on the question of interim order which the court may pass after admitting the appeal. The lodging of the CAVEAT will not enable the respondent to address the court at the initial stage of formulation of substantial question of law by the High Court.

( 4 ) FOR a better appreciation of the points at issue, this court sets out hereinbelow Section 100 and also Order 41 Rule 11 and Rule 12 of C. P. C. :"section 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. ""order 41 Rule 11. Power to dismiss appeal without sending notice to lower Court.-- (1) The appellate Court, after sendi