Ruling On Second Appeals

Source: The Hitavada      Date: 28 May 2018 12:00:54

 


 

 

 

 

 

 

 

 

 

In the Supreme Court’s considered view, the need to remand the case to the HC has occasioned because the HC while deciding and eventually allowing the Second Appeal did not follow the mandatory procedure prescribed under section 100 of the CPC, 1908. In otherwords, the finding of the apex court is that the manner in which the HC
proceeded to decide the Second Appeal did not appear to be in conformity with the mandatory procedure prescribed under section 100 of the CPC.

 

AN IMPORTANT ruling relating to Second Appeals has been delivered at the Supreme Court on May 11, 2018, through the judgement in the case - Vijay Arjun Bhagat and Others v. Nana Laxman Tapkire and Others by Justice Abhay Manohar Sapre and Justice Abdul Nazeer, holding that it was not legally permissible for the Aurangabad Bench of the Bombay High Court to allow the Second Appeal on two Additional substantial questions of law (Para 10 of the impugned judgement), which were neither framed by the HC at the time of admission of the Second Appeal on November 30, 2002 and nor at the time of hearing the Second Appeal.


The appeal in this case was directed against the final judgement and order passed by the Aurangabad Bench of the Bombay High Court on July 19, 2007 in the Second Appeal 274/2002, whereby the Single Judge of the HC allowed the appeal filed by the respondents 1 and 2 before the apex court and set aside the order passed by the District Judge, Ahmednagar in Reg. C.A. 21/2000 and confirmed the judgement of the civil Judge, Junior Division, Ahmednagar, on December 10, 1999. The appellants were the original plaintiffs whereas the respondents were the defendants in a civil suit out of which the appeal arose. The appellants filed a civil suit 600/1982 against the respondents in the civil court of Judge, Junior Division, Ahmednagar.


The trial court framed issues. Parties adduced evidence in support of their respective contentions. Through judgement and decree on December 10, 1999, though the trial judge answered some issues in plaintiffs’ favour but eventually dismissed the plaintiffs’ suit on merits. By the impugned judgement, the Single Judge of the HC allowed the appeal and, in consequence, set aside the order passed by the District Judge and confirmed the judgement passed by the civil court which has led to filing of the present appeal by way of special leave by the plaintiffs before the Supreme Court. According to the Supreme Court, the short question arising for consideration in this appeal is whether the HC was justified in allowing the appeal.


In the Supreme Court’s considered view, the need to remand the case to the HC has occasioned because the HC while deciding and eventually allowing the Second Appeal did not follow the mandatory procedure prescribed under Section 100 of the CPC, 1908.In other words, the finding of the apex court is that the manner in which the HC proceeded to decide the Second Appeal did not appear to be in conformity with the mandatory procedure prescribed under Section 100 of the CPC.Sub-Section (1) of Section 100 says that the Second Appeal would be entertained by the HC only if the HC 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 HC is satisfied that any substantial question of law is involved in the case, it shall formulate that question. In other words, once the HC 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 direct issuance of notice to the respondent of the memo of appeal along with the question of law framed by the HC. Sub-Section (5) provides that the appeal shall be heard only on the question formulated by the HC 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 HC 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 HC frames the question at the admission stage which is prior to issuance of 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 recognises the power of the HC to hear the appeal on any other substantial question of law, which was not initially framed by the HC under sub-Section (4). However, this power can be exercised by the HC only after assigning the reasons for framing such additional question of law at the time of hearing of the appeal. In this case, the HC admitted the Second Appeal on November 30, 2002 and framed 6 substantial questions of law as required under sub-Sections (1) and (4) of Section 100 of the CPC, which according to the HC arose in the Second Appeal.


Therefore, the HC was required to decide the Second Appeal only on the 6 formulated substantial questions of laws provided under sub-Section (5) of Section 100 CPC. In this respect the HC instead of deciding the Second Appeal only on the 6 formulated questions of substantial law framed at the time of admission allowed the appeal on two additional substantial questions of law, which were neither framed by the HC at the time of admission of the Second Appeal on November 30, 2002 and nor at the time of hearing the Second Appeal.In other words, the HC allowed the appeal on the two questions, which read as under:
“In S. A. No. 274/2002, following substantial questions of law arise:(i) Whether the civil court has jurisdiction to decide the question whether a particular property is that of a Public Trust or that is not a property of the Public Trust and belongs to individual claimant? (ii) Whether the suit for declaration that the properties were not of the Public Trust was barred by limitation and, therefore, the impugned judgement of the first appellate court deserves interference?”


In the Supreme Court’s considered opinion, the HC committed two jurisdictional errors while deciding the Second Appeal. First, though it rightly framed six substantial questions of law at the time of admission of the appeal on November 30, 2002 as arising in the case but erred in not answering these questions. As mentioned above, the HC had the jurisdiction to decide the Second Appeal only on the six substantial questions of law framed at the time of admitting the appeal. In other words, the jurisdiction of the HC to decide the Second Appeal was confined only to six questions framed and not beyond it.


Second, the HC though had the jurisdiction to frame additional question(s) by taking recourse to proviso to sub-Section (5) of Section 100 of the Code of Civil Procedure, 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”. In this case, the HC committed an error, because it framed two additional questions in the judgement itself.


This procedure adopted by the HC while deciding the Second Appeal caused prejudice to the rights of the parties because the parties, especially the appellants herein, who suffered the adverse order, had no knowledge about framing of the two additional questions inasmuch as they were deprived of the opportunity to address the court on the two additional questions on which the impugned judgement was founded.It has been now left to the HC to decide the appeal on merits.In the light of the discussion, the court allowed the appeal and set aside the impugned judgement. It remanded the case to the HC for deciding the appeal afresh on merits.