IMPORTANT POINT
Non-compliance of any procedural requirement should not entail automatic dismissal of appeal.

Mukul Mudgal, C.J., —One of us (Mahesh Grover, J.) while dealing with the matter in hand, made a reference by the order dated 24.2.20 10 for determination of the following questions by a larger Bench and this is how, it has been placed before us:-

1. Whether in the absence of any substantial question of law being stated in the memorandum of appeal, the same can be rejected or not?

2. Whether Section 100 CPC enjoins a duty upon the High Court to formula a substantial question of law even if the same has not been stated in the memorandum of appeal or whether the appeal can be dismissed solely on this ground that it has not so been stated in the memorandum of appeal?

3. Whether non-stating of a substantial question of law in the memorandum of appeal is a mere procedural irregularity and can result in rejection of appeal or whether it can be cured and rectified?

4. Whether an application under Rule 2 of Order 41 CPC can be moved at any time before hearing of the appeal or whether the same can be rejected merely because it has been filed after lapse of substantial period of time.

5. Whether Rule 10 of the Cheyenne 14 Part B, of Volume-I of the Rules and Orders governs the procedure of filing of the regular second appeal in the High Court or not?

6. Whether an application similiciter for formulate in substantial question of law would suffice the needs of Section 100 CPC or whether the memorandum of appeal would necessarily have to be amended, especially in view of the fact at the time of filing of the appeal, i.e. between 1971 to 2001, there was no need to formulate such questions ?

2. Before we embark upon to determine the questions that have been posed and reproduced above, we may briefly dwell upon the contour of the controversy and the course of events leading to it.

3. Alok Singh, J. while deciding Bikkar Singh and others v. Jalaur Singh and others, R.S.A. No. 861 of 1981 on 16.2.2010 observed as follows:-

“7. This Court can formulate substantial questions of law when appeal is filed containing substantial questions of law in the memorandum of appeal as required under Sub-section (3) of Section 100 C.P.C. duty of the Court to formulate substantial questions of law comes subsequent to the filing of the memorandum of appeal and not otherwise. No question remains, as to whether Court can press proviso of sub-section (5) of Section 100 C.P.C. in service while hearing the appeal, enabling the Court to formulate substantial question of law as suggested by Mrs. M.L. Sarin, Sr. Advocate.

8. In the humble opinion of this Court, word ‘OTHER’ used in the proviso makes it clear that proviso can be pressed in service when some substance question of law has already been formulated at the time of admission. The word ‘OTHER’ denotes in addition to. If no substantial question of law formulated either in the memo of appeal or by the Court at the time of admission of the appeal, then proviso cannot be pressed in service.”

4. It was further observed by Alok Singh, J. in the aforesaid judgment that a combined reading of Section 100 and Order 41 Rule 3 of the C.P.C. makes it clear that no appeal shall be entertained until and unless memo of appeal contains substantial questions of law or which is not drawn up in the manner provided in the Code must be rejected outright.

5. In denying the right to the appellant to amend the memorandum of appeal after the same was sought to be done after a gap of 29 years when the appeal came up for final disposal, Alok Singh, J. relied upon the ratio of a Full Bench judgment of this Court in Bikram Dass v. The Financial Commissioner, Revenue, Punjab, Chandigarh and others, AIR 1975 P&H. 1 In that case, the Full Bench had dismissed the appeal for non-compliance of Rule 3 of the Letters Patent Rules. He, however, carved out an exception that in genuine cases, where the Court finds that the impugned judgment is absolutely without jurisdiction or the judgment passed by the court below cannot stan