SUDAM KISAN GAVANE (D) THR. LRS. & ORS. versus MANIK ANANTA SHIKKETOD (D) BY LRS. & ORS.

Citation: [2019] 12 S.C.R. 70 · Decided: 29-08-2019 · Supreme Court of India · Bench: DEEPAK GUPTA, ANIRUDDHA BOSE · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 12 S.C.R.
SUDAM KISAN GAVANE (D) THR. LRS. & ORS.
v.
MANIK ANANTA SHIKKETOD (D) BY LRS. & ORS.
(Civil Appeal No. 5272 of 2010)
AUGUST 29, 2019
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Code of Civil Procedure, 1908: s.100 – Non-framing of
substantial questions of law at the time of dictation of the judgment
– Held: This procedure is not fair 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 – As per
s.100, an appeal can only lie if there is a substantial question of
law involved in the appeal – Sub-section (3) states that the
memorandum of appeal filed under s.100 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
High Court to formulate the substantial questions of law in terms of
sub-section (4) of s.100 – 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 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 – Thus, 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 – If at the time of final hearing, the Court feels that there is
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.
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 [2019] 12 S.C.R. 70
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Code of Civil Procedure, 1908: s.100, proviso – The proviso
to s.100 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, 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.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5272
of 2010
From the Judgment and Order dated  10.06.2009 of the High
Court  of Judicature  of Judicature  of Bombay, Bench at Aurangabad in
Second Appeal No.281 of 1989.
Nishant R. Katneshwarkar, Anoop Kandari, B. Sridhar, Advs. for
the Appellants.
Sudhanshu S. Choudhari, Adv. for the Respondents.
The following Order of the Court was passed :
O R D E R
1. Without expressing any opinion on the merits of the case, we
feel this case should be remanded to the High Court.
2. 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:
3. “Heard. Admit”
4. 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 obvious that
these substantial questions of law were framed by the learned Judge at
the time of dictation of the judgment. This procedure, in our opinion, is
SUDAM KISAN GAVANE (D) THR. LRS. & ORS. v.
MANIK ANANTA SHIKKETOD (D) BY LRS. & ORS.
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not fair 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 prope

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