HEMAVATHI AND ORS. versus V. HOMBEGOWDA AND ANR.

Citation: [2023] 12 S.C.R. 477 · Decided: 11-09-2023 · Supreme Court of India · Bench: B.V. NAGARATHNA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

[2023] 12 S.C.R. 477 : 2023 INSC 848
CASE DETAILS
HEMAVATHI AND ORS. 
v.
V. HOMBEGOWDA AND ANR.
(Civil Appeal Nos. 5780-5781 of 2023)
SEPTEMBER 11, 2023
[B.V. NAGARATHNA AND UJJAL BHUYAN, JJ.]
HEADNOTES
Issue for consideration: High Court whether justifi ed in allowing 
Regular Second Appeal fi led u/s.100, Code of Civil Procedure, 1908 without 
framing the substantial question of law.
Code of Civil Procedure, 1908 – s.100 – Second Appeal – Substantial 
question of law not framed – Impropriety:
Held: First appellate court is the fi nal Court insofar as the question of 
facts are concerned and it is only when substantial questions of law would 
arise in a case that the High Court can entertain a Regular Second Appeal – If 
at the stage of admission such substantial questions of law are discerned by 
the High Court the same would have to be framed and the appeal(s) would 
have to be admitted – It is only thereafter that the parties have to be heard 
on the substantial questions of law framed by the High Court at the stage 
of admission – However, the CPC gives power to the High Court to frame 
additional substantial questions of law or to mould the substantial questions 
of law already framed on hearing the parties at the time of fi nal hearing of 
a Second Appeal – In the event the respondents before the High Court are 
on record even at the stage of admission of a Regular Second Appeal and 
the same is to be disposed of fi nally even at this stage substantial questions 
of law must be framed and answered before the Regular Second Appeal is 
admitted and disposed – In the present case, the same was not framed – Said 
error is compounded by the Judge stating in the order passed in the review 
petition that no such substantial question of law arose in the appeal(s) – If 
477
478
SUPREME COURT REPORTS 
[2023] 12 S.C.R.
no substantial question of law arose in the case then the appeal could not 
have been entertained and ought to have been dismissed at the stage of 
admission – But on the other hand, in the absence of framing any substantial 
question of law the appeal was allowed, that too, at the stage of admission, 
without issuance of notice to the other respondents Nos.1, 3 and 4 and 
by hearing only counsel for respondent No.2 before the High Court who 
was on caveat – Impugned judgment and order passed in Regular Second 
Appeal as well as Review Petition set aside – Matters remanded to High 
Court. [Paras 13-16, 18]
Code of Civil Procedure, 1908 – s.100 – Regular second appeal, 
practice to be followed – Law – Discussed.
Practice and Procedure – First appellate court had not considered 
the Regular Appeal on merits, matter was remanded to trial court for 
fresh consideration – Legality: 
Held: If the High Court thought it fi t to condone the delay in fi ling 
the Regular Appeal then the matter had to be remanded to the fi rst appellate 
court to consider the Regular Appeal on merits and not just set aside the trial 
court decree and remand the case to the trial court for a fresh adjudication 
– Code of Civil Procedure, 1908. [Para 12]
LIST OF CITATIONS AND OTHER REFERENCES
Bhagyashree Anant Gaonkar vs. Narendra @ Nagesh Bharma Holkar 
and Anr. Judgment dated 07.08.2023 in C.A. No. 4935 of 2023; Roop Singh 
v. Ram Singh (2000) 3 SCC 708: [2000] 2 SCR 605; C.A. Sulaiman vs. State 
Bank of Travancore, Alwayee (2006) 6 SCC 392: [2006] 4 Suppl. SCR 
152; State Bank of India vs. S.N. Goyal (2008) 8 SCC 9215; Municipal 
Committee, Hoshiarpur v. Punjab SEB (2010) 13 SCC 216: [2010] 13 
SCR 658; Umerkhan v. Bismillabi (2011) 9 SCC 684: [2011] 9 SCR 551; 
Raghavendra Swamy Mutt v. Uttaradi Mutt (2016) 11 SCC 235: [2016] 3 
SCR 11 – relied on. 
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
479
From the Judgment and Order dated 23.06.2022 and dated 13.04.2022 
in RP No.536 of 2022  and RSA No.291 of 2022 respectively of the High 
Court of Karnataka at Bengaluru.
Appearances:
M/s Nuli & Nuli, Anand Sanjay M Nuli, Agam Sharma, Dharm Singh, 
Shiva Swaroop, Advs. for the Appellants.
Ms. V. Mohana, Sr. Adv., Shanthakumar V. Mahale, Harisha S. R., 
Rajesh Mahale, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
NAGARATHNA, J.
Leave granted.
These are two more appeals which arise from the High Court of 
Karnataka within a short period of time wherein, without framing the 
substantial question of law, Regular Second Appeal fi led under Section 
100 of the Code of Civil Procedure, 1908 (For short the “CPC”

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