ARSAD SK. & ANR. versus BANI PROSANNA KUNDU & ORS.

Citation: [2014] 3 S.C.R. 847 · Decided: 23-04-2014 · Supreme Court of India · Bench: C.K. PRASAD · Disposal: Dismissed

Judgment (excerpt)

[2014] 3 S.C.R. 847 
ARSAD SK. & ANR. 
v. 
BANI PROSANNA KUNDU & ORS. 
(Civil Appeal No. 4805 of 2014) 
APRIL 23, 2014 
[CHANDRAMAULI KR. PRASAD AND 
PINAKI CHANDRA GHOSE, JJ.] 
A 
B 
CODE OF CIVIL PROCEDURE, 1908: s.100 - Second 
appeal -
Substantial question of law - Non-framing of C 
substantial question of law at the time of admission of second 
appeal but framing thereof after conclusion of the arguments 
- Correctness of - Held: The general rule regarding an appeal 
u/s. 100 is that the jurisdiction of High Court is limited to the 
substantial question of law framed at the time of the admission o 
of appeal -
However, omission of the High Court in 
\ formulating the 'substantial question of law' (while admitting 
the appeal) does not preclude the same from being heard, 
as litigants should not be penalized for an omission of the 
Court - Substantial question of law can be formulated in some 
E 
exceptional cases, at a later point of time, even at the time of 
argument stage provided the opposite party is put on notice 
thereon and is given a fair or proper opportunity to meet out 
the point - Furthermore, the judgment of High Court should 
be set aside on the ground of non-compliance with sub-
F 
section (4) of s.100, only if some prejudice has been caused 
to the appellants by not formulating such a substantial 
question of law. 
The question which arose for consideration in the 
instant appeal was whether the impugned judgment ·G 
passed by the High Court in second appeal suffered from 
patent error on the ground that the High Court did not 
frame the substantial question of law at the time of 
847 
H 
848 
SUPREME COURT REPORTS 
[2014] 3 S.C.R. 
A admission of the second appeal but formulated a 
question only in the impugned judgment after conclusion 
of the arguments. 
Dismissing the appeal, the Court 
B 
HELD: 1. In the instant case, no substantial question 
of law was formulated at the time of admission of appeal 
and as such the question was understood to be 
regarding the correctness of judgments of the lower 
courts. Furthermore, if any such lapse in adhering to the 
C procedure existed at the second appellate stage, the 
counsel for the parties should have pointed out the same 
at that stage only but they never did so. Moreover, the 
High Court basically framed the substantial question of 
law, though at a later stage, and then answered it. [Para 
D 7] [852-C-D] 
2. The general rule regarding an appeal under 
Section 100 of CPC is that the jurisdiction of the High 
Court is limited to the substantial question of law framed 
at the time of the admission of appeal or at a subsequent 
E later stage, if the High Court is satisfied that such a 
question of law arises from the facts found by the Courts 
below. [Para 8] [852-E-F] 
Manicka Poosali & Ors. v. Anjalai Ammal & Anr. (2005) 
F 10 sec 38: 2005 (2) SCR 1027 - relied on. 
3. In light of the well accepted principle that rules of 
procedure is a handmaiden of justice, the omission of the 
Court in formulating the 'substantial question of law' 
(while admitting the appeal) does not preclude the same 
G from being heard as litigants should not be penalized for 
an omission of the Court. In the instant case, the 
substantial question of law was formulated by the High 
C,ourt, though not at the admission stage but at a later 
stage before the hearing, it does not follow that merely 
H 
ARSAD SK. & ANR. v. BANI PROSANNA KUNDU 
849 
because the "substantial question of law" was A 
formulated by the High Court at a later stage, the 
judgment of the High Court becomes a nullity, liable to 
be set aside on that ground alone and for the same the 
appellants must also show prejudice· to them on this 
account. (Paras 9 and 1 O] (852-F-H; 853-A-B] 
B 
Kannan & Ors. v. V. S. Pandurangam (2007) 15 SCC 
157: 2007 (12) SCR 591 - relied on. 
4. Substantial question of law can be formulated at 
the initial stage and in some exceptional cases, at a later C 
point of time, even at the time of argument stage such 
substantial question of law can be formulated provided 
the opposite party should be put on notice thereon and 
should be given a fair or proper opportunity to meet out 
the point. Furthermore, the judgment of the High Court D 
should only be set aside on the ground of non-
compliance with sub-section (4) of Section 100 of CPC, 
if some prejudice has been caused to the appellants by 
not formulating such a substantial question of law. In the 
instant case, substant

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