Sudam Kisan Gavane vs Manik Ananta Shikketod

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5272 OF 2010

SUDAM KISAN GAVANE (D) THR. LRS. & ORS. APPELLANT(S)

VERSUS

MANIK ANANTA SHIKKETOD (D) BY LRS. & ORS. RESPONDENT(S)

O R D E R

Without expressing any opinion on the merits of the

case, we feel this case should be remanded to the

High Court.

The second appeal under Section 100 of the Code of

Civil Procedure came up for admission before the High

Court on 11.06.1990. The High Court admitted the appeal

without framing any question of law and the order reads:

"Heard. Admit"

The appeal came up for hearing on 02.05.2009.

Arguments were heard and judgment was reserved. The order

dated 02.05.2009 also does not indicate that any

question(s) of law was framed on that date. Thereafter,

judgment was delivered on 10.06.2009. This judgment makes

mention of certain substantial questions of law. It is Signature Not Verified obvious that these substantial questions of law were Digitally signed by ARJUN BISHT Date: 2019.09.02 10:57:55 IST Reason: framed by the learned Judge at the time of dictation of

the judgment. This procedure, in our opinion, is not fair

1 to the parties. The parties must know what are the

substantial questions of law which the Court is required

to answer in a particular case. It is only then that the

parties and their counsel can properly assist the Court.

Section 100 of Code of Civil Procedure reads as

under:

"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."

A bare reading of Section 100 of Code of Civil

Procedure makes it abundantly clear that an appeal can

only lie if there is a substantial question of law

2 involved in the appeal. Sub-section (3) makes it clear

that the memorandum of appeal filed under Section 100 of

Code of Civil Procedure should precisely state the

substantial question of law involved in the appeal. It is

only if the High Court is satisfied that a substantial

question of law is involved in the case that it shall

formulate that question. A duty is cast upon the High

Court to formulate the substantial questions of law in

terms of sub-section (4) of Section 100 of Code of

Civil Procedure.

Therefore, normally the order of admission of the

appeal should clearly indicate on what substantial

questions of law the appeal has been admitted. Even if

the High Court is of the view that the substantial

questions of law, as framed in the memorandum of appeal,

are substantial questions of law, the order admitting the

appeal should specifically state what are the questions

of law on which the appeal is admitted. Obviously, if no

substantial question(s) of law arises then the appeal has

to be dismissed at the threshold.

Sub-section (5) mandates that the appeal shall be

heard on the questions so formulated. It is, thus, clear

that the hearing of the appeal should revolve around the

substantial questions of law and the Court at the final

hearing cannot go beyond the substantial questions of

law. We would, however, like to make it clear that if at

the time of final hearing, the Court feels that there is

3 some other substantial question(s) of law involved, it is

not debarred from formulating that question even at that

stage but hearing will have to be limited to substantial

questions of law. Sub-section (5) also clearly lays down

that the respondent has a right to urge that the

substantial question(s) of law, as formulated, do not

actually arise for consideration or that they are not

substantial questions of law.

The proviso to Section 100 of Code of Civil

Procedure makes it clear that the Court has the power to

hear the appeal from any substantial questions of law not

formulated by it if it is satisfied that the case

involves such questions. However, it is important to

note, that in such eventuality the Court has to record

its reasons for formulating such questions of law. This

obviously means that the Court will pass a reasoned order

while formulating the substantial question(s) of law at

this stage. The natural corollary is that the parties

have to be heard after the framing of such substantial

questions of law. The hearing cannot be prior to the

substantial questions of law. We are clearly of the view

that the High Court erred in hearing the appeal finally

when questions of law have not been framed and formulated

the questions of law only in the judgment.

Therefore, we set aside the order of the High Court

on the short ground that the substantial questions of law

4 were not framed before arguments were heard.

We remand the matter to the High Court and request

the High Court to decide the questions of law after

hearing the parties. We give liberty to the High Court to

reframe the questions of law after hearing the parties.

We further request the High Court to treat this case as a

second appeal having been filed in the year 1990 and give

it priority accordingly.

It is stated that respondent no.2 has died and his

legal representatives are not brought on record. In view

of the order, which we have passed, we do not want any

further delay in the appeal and leave it to the High

Court to decide the effect of the death of respondent

no.2 on the appeal.

The appeal is allowed in the aforesaid terms.

...................J. (DEEPAK GUPTA)

...................J. (ANIRUDDHA BOSE)

New Delhi August 29, 2019

5 ITEM NO.108 COURT NO.13 SECTION IX

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s).5272/2010

SUDAM KISAN GAVANE (DEAD) THROUGH LRS. & ORS. Appellant(s)

VERSUS

MANIK ANANTA SHIKKETOD(D) BY LRS. & ORS. Respondent(s)

Date : 29-08-2019 This appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE DEEPAK GUPTA HON'BLE MR. JUSTICE ANIRUDDHA BOSE

For Appellant(s) Mr. Nishant R. Katneshwarkar, Adv. Mr. Anoop Kandari, Adv.

Mr. B. Sridhar, AOR

For Respondent(s) Mr. Sudhanshu S. Choudhari, AOR

UPON hearing the counsel the Court made the following O R D E R

The appeal is allowed in terms of the signed order.

Pending application(s), if any, stands disposed of.

(ARJUN BISHT) (RENU KAPOOR) COURT MASTER (SH) BRANCH OFFICER (signed order is placed on the file)

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