In a recent judgment delivered by the Supreme Court of India viz. Surat Singh vs. Sri Bhagwan and Others, the Apex Court has held retreated that while admitting a second appeal under section 100 of the Code of Civil Procedure, it is mandatory for the High Court to formulate the substantial questions of law involved in the case. The High Court cannot formulate such a question at the stage of delivering the judgment.
In order to appreciate the short issue involved in the appeals, few relevant facts need mention infra.
One Murti Devi (since dead) and her daughter Smt. Bholi Devi filed Civil Suit No. 315/81 in the Court of Sub-Judge, IInd Class, Rewari against one Siri Bhagwan (Respondent No. 1 herein). The suit was for a declaration that the decree obtained by Siri Bhagwan against Murti Devi on 11.11.1980 in Civil Suit No. 638/1980 in relation to the land measuring 37 Kanals 14 Marias situated at Village Alampur, Tahsil Rewari, District Mahendergarh be declared null and void and not binding on the Plaintiffs because it was obtained by Defendant No. 1-Siri Bhagwan by playing fraud and misrepresentation on the Plaintiff-Murti Devi by taking advantage of her illiteracy and poverty. The Defendant No. 1-Siri Bhagwan contested the suit.
The Trial Court, by judgment/decree dated 16.05.1984 in C.S. No. 315 of 1981 dismissed the suit. Felt aggrieved, the Plaintiff-Murti Devi, filed first appeal (C.A. No. 83 of 1984) before the District Judge. By Judgment/decree dated 13.11.1986, the first Appellate Court allowed the appeal, set aside the judgment/decree of the Trial Court and decreed the Plaintiff’s suit.
Felt aggrieved, Defendant No. 1-Siri Bhagwan filed Second Appeal Under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) in the High Court of Punjab & Haryana out of which these appeals arise. During the pendency of the second appeal, the Appellant herein-Surat Singh purchased the suit land from Murti Devi vide registered sale deed dated 30.07.1988 for Rs. 80,000/-.
The Appellant-Surat Singh then filed an application Under Order 1 Rule 10 read with Order 22 Rule 10 of the Code praying therein to become a party Respondent along with original Plaintiff/Respondent No. 1 in the second appeal as a subsequent purchaser of the suit land from the Plaintiff/Respondent No. 1, pending litigation.
By order dated 04.01.1989, Surat Singh’s application was allowed and he was allowed to become a party-Respondent in the second appeal. In the meantime, Murti Devi expired. Since one daughter of Murti Devi was already on record as Plaintiff No. 2 and the other daughter was on record as proforma Defendant No. 2, the Lis involved in the appeal continued.
By impugned judgment dated 13.12.2006, the Single Judge of the High Court allowed the second appeal, set aside the judgment/decree of the first Appellate Court and restored that of the Trial Court, which resulted in dismissal of the suit filed by Murti Devi and her daughter. Since the impugned judgment dated 13.12.2006 was passed without hearing the Appellant herein(Respondent No. 4 in the High Court), he filed an application Under Section 151 read with Order 21 Rule 21 of the Code for recalling the judgment dated 13.12.2006. By order dated 22.01.2007, the High Court dismissed the application. Aggrieved by both the judgment/order dated 13.12.2006 and 22.01.2007, the Appellant has filed these appeals by way of special leave.
The Apex Court allowed the appeals, set aside the impugned judgment and remanded the case to the High Court for deciding the second appeal afresh on merits in accordance with law.
The Apex Court observed that the High Court allowed the second appeal filed by Respondent No. 1 herein without hearing Respondent No. 4 before it, i.e., (Appellant herein). In other words, the High Court allowed the second appeal after hearing the Appellant of second appeal only and not Respondent No. 4 of the second appeal, who was absent at the time of hearing.
When Respondent No. 4 (Appellant herein) filed an application Under Section 151 read with Order 41 Rule 21 of the Code praying for an opportunity of hearing, his application was dismissed by the High Court.
The Apex Court observed that having regard to the nature of controversy involved in the case and further in the light of the grounds on which the application for rehearing of the appeal was founded, the High Court should have granted one opportunity of hearing to Respondent No. 4 for opposing the second appeal and for that purpose should have restored the second appeal for its re-hearing on merits in accordance with law.
The High Court did not frame any substantial question of law while admitting the appeal as per Sub-section (4) of Section 100 though it remained pending for a long time. However, the High Court proceeded to allow the second appeal and while doing so framed the substantial question of law in the concluding para of the impugned judgment.
It was observed that the manner and the procedure adopted by the High Court while allowing the second appeal are against the procedure laid down in Section 100.
Section 100 of the Code reads as under:
- 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 formulated by it, if it is satisfied that the case involves such question.
Sub-section (1) of Section 100 says that the second appeal would be entertained by the High Court only if the High Court is “satisfied” that the case involves a “substantial question of law”. Sub-section (3) makes it obligatory upon the Appellant to precisely state in memo of appeal the “substantial question of law” involved in the appeal. Sub-section (4) provides that where the High Court is satisfied that any substantial question of law is involved in the case, it shall formulate that question. In other words, once the High Court is satisfied after hearing the Appellant or his counsel, as the case may be, that the appeal involves a substantial question of law, it has to formulate that question and then direct issuance of notice to the Respondent of the memo of appeal along with the question of law framed by the High Court. Sub-section (5) provides that the appeal shall be heard only on the question formulated by the High Court Under Sub-section (4). In other words, the jurisdiction of the High Court to decide the second appeal is confined only to the question framed by the High Court Under Sub-section (4). The Respondent, however, at the time of hearing of the appeal is given a right Under Sub-section (5) to raise an objection that the question framed by the High Court Under Sub-section (4) does not involve in the appeal. The reason for giving this right to the Respondent for raising such objection at the time of hearing is because the High Court frames the question at the admission stage which is prior to issuance of the notice of appeal to the Respondent. In other words, the question is framed behind the back of Respondent and, therefore, Sub-section (5) enables him to raise such objection at the time of hearing that the question framed does not arise in the appeal. The proviso to Sub-section (5), however, also recognizes the power of the High Court to hear the appeal on any other substantial question of law which was not initially framed by the High Court Under Sub-section (4). However, this power can be exercised by the High Court only after assigning the reasons for framing such additional question of law at the time of hearing of the appeal.
In the present case, the High Court was under a legal obligation to frame the substantial question at the time of admission of the appeal after hearing the Appellant or/and his counsel Under Sub-section (4) of Section 100 of the Code, but the High Court did it while passing the final judgment in its concluding para.
Such novel procedure adopted by the High Court is wholly contrary to the scheme of Section 100 of the Code and renders the impugned judgment legally unsustainable.
The High Court had no jurisdiction to frame the substantial question at the time of writing of its final judgment in the appeal except to the extent permitted Under Sub-section (5). The procedure adopted by the High Court, apart from it being against the scheme of Section 100 of the Code, also resulted in causing prejudice to the Respondents because the Respondents could not object to the framing of substantial question of law. Indeed, the Respondents could not come to know on which question of law, the appeal was admitted for final hearing.
The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed Under Sub-section (4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed Under Sub-section (5). Both the requirements prescribed in Sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed Under Sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the Appellant. It is, however, done only after hearing the Respondents Under Sub-section (5).
If, however, the High Court is satisfied after hearing the Appellant at the time of admission that the appeal does not involve any substantial question of law, then such appeal is liable to be dismissed in liminewithout any notice to the Respondents after recording a finding in the dismissal order that the appeal does not involve any substantial question of law within the meaning of Sub-section (4). It is needless to say that for passing such order in limine, the High Court is required to assign the reasons in support of its conclusion.It is, however, of no significance, whether the Respondent has appeared at the time of final hearing of the appeal or not. The High Court, in any case, has to proceed in accordance with the procedure prescribed Under Section 100 while disposing of the appeal, whether in limine or at the final hearing stage.
On this reasoning, the Apex Court eventually allowed the appeals and remanded the matter back to the High Court for fresh adjudication.