SURAT SINGH (DEAD) versus SIRI BHAGWAN & ORS.

Citation: [2018] 1 S.C.R. 1063 · Decided: 19-02-2018 · Supreme Court of India · Bench: R.K. AGRAWAL · Disposal: Appeal(s) allowed

Cited by 7 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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1063
SURAT SINGH (DEAD)
v.
SIRI BHAGWAN & ORS.
(Civil Appeal Nos. 9118-9119 of 2010)
FEBRUARY 19, 2018
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
Code of Civil Procedure, 1908 : s. 100 – Second appeal –
Substantial question of law – On facts, the High Court allowed the
second appeal, after hearing the appellant of second appeal only
and not hearing the contesting respondent No.4 who had filed an
application u/s. 151 r/w Or. LXI, r. 21 CPC praying for an
opportunity of hearing – 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 – While
proceeding to allow the second appeal, the High Court framed the
substantial question of law in the impugned judgment – Sustainability
of – Held: Not sustainable – High Court failed to follow the
procedure prescribed u/s. 100 while allowing the second appeal
and thus, committed a jurisdictional error calling for interference
by this Court – High Court while passing a final judgment framed
the substantial question of law for the first time and simultaneously
answered the said question in appellant’s favour – 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 s. 100 – 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) – Procedure adopted by the High Court, also
resulted in causing prejudice to the respondents because the
respondents could not object to the framing of substantial question
of law.
Allowing the appeals, the Court
HELD: 1.1 When respondent No. 4 (appellant) filed an
application under Section 151 read with Order LXI Rule 21 of
the Code praying for an opportunity of hearing, his application
was dismissed by the High Court. The High Court erred in
                                      [2018] 1 S.C.R. 1063
   1063
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SUPREME COURT REPORTS
[2018] 1 S.C.R.
deciding the second appeal much less allowing it after hearing
the appellant of second appeal only and not hearing the contesting
respondent No.4 (appellant) and also erred in dismissing his
application filed under Section 151 read with Order LXI Rule 21
CPC for rehearing of the second appeal. [Paras 12-14]
[1070-D-F]
1.2  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. This Court cannot countenance
the manner in which the High Court decided the second appeal
on merits. [Paras 15, 16] [1070-G-H]
1.3  The High Court as it seems 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. The manner and the
procedure adopted by the High Court while allowing the second
appeal are against the procedure laid down in Section 100. [Paras
18, 19] [1071-B-E]
1.4 Sub-section (1) of Section 100 states 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.
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Sub-section (5) provides that the appeal shall be heard only on
the question formulated by the High Court under sub-section
(4). In oth

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