A High Court’s jurisdiction in second appeals mandates adherence to procedural requirements for framing substantial questions of law and providing parties adequate opportunity for argument.

V. Ramachandra Ayyar

v.

Ramalingam Chettiar

[ V.

Ramachandra Ayyar

v.

Ramalingam Chettiar

, AIR

1963 SC 302] . 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.”

(Emphasis Supplied)

18.

It is apparent from the above extracted principles and a

perusal of the respective judgments that the second appeal is

envisioned, much like any other process of the Court to be a

step­by­step process, each step further being a consequence of

the previous one. Framing of substantial questions at the stage

of admission, the appeal then being admitted for hearing,

hearing thereon, and then a reasoned judgment.

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19.

However, as a reading of the impugned judgment reveals,

these steps came to be followed, only partially, more so, ignoring

the time element, inherent therein.

20.

As Sumara Umar Ahmad (supra), Kichha Sugar (supra)

and Virupakshappa (supra) and also the ingredients identified

by Gurdev Kaur (supra) show, hearing the parties, on all

questions, framed at the time of admission as also the one

framed, added or altered, is absolutely essential.

21.

In the present case, the parties were not given the requisite

time to meet the questions framed by the Court. Section 100 (5)

CPC suggests that there is a gap between framing of the

questions at admission and hearing, as the proviso thereto gives

an opportunity to the Court to frame additional questions at the

time of hearing, on which the parties would have to be heard as

well. Meaning thereby, that the questions framed at the time of

admission, at such point of subsequent framing of questions are

already known to the parties and they have had time to prepare

to address arguments on the same. It is during the arguments

that a further important issue is discovered and a question in

that regard is framed, with the parties then being granted time

to meet that question as well.

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22.

Our view finds support in Amar Singh v. Dalip Singh ²⁸

wherein this Court held: ­

a)

The purpose of framing of substantial question of law

is to give the parties an opportunity to come prepared

on that particular question.

b)

When a substantial question of law is formulated by

the Court then the same must be made known to

parties and thereafter they have to be given an

opportunity to advance arguments thereon.

c) If any additional questions were framed at the time of

hearing, the Court must hear the parties on that

question as well.

23.

Here, the questions of law, were framed on the second date

of hearing, the parties were heard right then and there, and the

second appeal was disposed of with the judgment being dictated

and findings of fact reversed. That, as the above discussion

points out, is not in consonance with the manner set out for the

disposal of a second appeal.

24.

The impugned judgment overturns concurrent findings of

fact in respect of readiness and willingness on the part of the

28 (2012) 13 SCC 405 Two Judge Bench

18 |SLP(C)No. 20183 of 2022|

plaintiff to perform the contract, without pointing out the

exceptional circumstance or the perversity in the findings which

were returned by the Courts below.

25.

For the Court to have done so, in accordance with law, the

actual evidence, which was before the Courts below, in our view,

had to be called for. This is so because, if the findings returned

are to be upturned on perversity, the same should unmistakably

be reflected from record. If this is not so done, the Court of first

appeal being the “final Court of fact”, would be reduced to a

mere saying, of no actual effect. After all, a second appeal is not

a “third trial on facts”, and so, for reappreciation of evidence to

be justified, and for the same to be r