VIJAY ARJUN BHAGAT & ORS. versus NANA LAXMAN TAPKIRE & ORS.

Citation: [2018] 4 S.C.R. 452 · Decided: 11-05-2018 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Appeal(s) allowed

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

Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 4 S.C.R.
VIJAY ARJUN BHAGAT & ORS.
v.
NANA LAXMAN TAPKIRE & ORS.
(Civil Appeal No. 6272 of 2010)
MAY 11, 2018
[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]
Code of Civil Procedure, 1908 – s.100 – Substantial question
of law – High Court instead of deciding the second appeal on the
six substantial questions of law which were framed at the time of
admission, allowed the appeal on two additional substantial
questions of law which were neither framed by the High Court at
the time of admission of the second appeal nor at the time of hearing
the second appeal – Manner in which the High Court proceeded to
decide the second appeal is in conformity with the mandatory
procedure prescribed under s.100 of the Code – Matter remitted to
High Court for consideration afresh.
Allowing the appeal and remitting the case to the High
Court, the Court
HELD: 1. The need to remand the case to the High Court
has occasioned because the High Court while deciding and
eventually allowing the second appeal did not follow the mandatory
procedure prescribed under Section 100 of the Code of Civil
Procedure, 1908.  Sub-section (1) of Section 100 says 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
  [2018] 4 S.C.R. 452
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High Court. Sub-section (5) provides that the appeal shall be
heard only on the question formulated by the High Court under
sub-section (4). In other words, the jurisdiction of the High Court
to decide the second appeal is confined only to the question
framed by the High Court under sub-section(4).  The respondent,
however, at the time of hearing of the appeal is given a right
under sub-section (5) to raise an objection that the question
framed by the High Court under sub-section (4) does not involve
in the appeal. The reason for giving this right to the respondent
for raising such objection at the time of hearing is because the
High Court frames the question at the admission stage which is
prior to issuance of the notice of appeal to the respondent.  In
other words, the question is framed behind the back of the
respondent and, therefore, sub-section(5) enables him  to raise
such objection at the time of hearing that the question framed
does not arise in the appeal.  The proviso to sub-section (5),
however, also recognizes the power of the High Court to hear
the appeal on any other substantial question of law which was not
initially framed by the High Court under sub-section (4).  However,
this power can be exercised by the High Court only after assigning
the reasons for framing such additional question of law at the
time of hearing of the appeal. [Paras 12, 15][456-D-E; 457-D-H;
458-A-B]
2. The High Court committed two jurisdictional errors while
deciding the second appeal. First, it erred in not answering the
six substantial questions of law framed at the time of admission
of the appeal. The High Court had the jurisdiction to decide the
second appeal only on the six substantial questions of law framed
at the time of admitting the appeal.  Second, the High Court
though had the jurisdiction to frame additional question(s) by
taking recourse to proviso to sub-section(5) of Section 100 of
the Code but it was subject to fulfilling the three conditions, first
“such questions should arise in the appeal”, second, “assign the
reasons for framing the additional questions” and third, “frame
the questions at the time of hearing the appeal”.  This procedure
adopted by the High Court while deciding the second appeal
caused prejudice to the rights of the parties because the parties,
especially the appellants, who suffered the adverse order, had no
knowledge about framing of the two additional questions inasmuch
VIJAY ARJUN BHAGAT & ORS. v. NANA LAX

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