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Supreme Court of India

Garikapatti Veeraya vs N. Subbiah Choudhury on 1 February, 1957

Bench: Das, Sudhi Ranjan (Cj), Bhagwati, Natwarlal H., Aiyyar, T.L. Venkatarama, Sinha, Bhuvneshwar P., Das, S.K.

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.


(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved, to the parties thereto till the rest of the career of the suit.


(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.


(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.


Supreme Court of India

Superintending Engineer And Ors vs B. Subba Reddy on 26 April, 1999

(1) Appeal is a substantive right. It is a creation of the statute. Right to appeal does not exist unless it is specifically conferred,

(2) Cross objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of memorandum and the provisions of Rule 1 of Order 41 of the Code, so far as these relate to the form and contents of the memorandum of appeal apply to cross-objection as well.


(3) Court fee is payable on cross-objection like that on the memorandum of appeal. Provisions relating to appeals by indigent person also apply to cross-objection.


(4) Everi Where the.appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined.


(5) Respondent even though he has not appealed may support the decree on any other ground but if wants to modify it, he has to file cross-objection to the decree which objections he could have taken earlier by filing an appeal. Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal. This time could also be extended by the Court like in appeal.


(6) Cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the respondent wanted to give quietus to whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. When, however, the other party challenged the same by filing an appeal statute gave the respondent a second chance to file an appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or order.



Supreme Court of India

Ganga Bai vs Vijay Kumar & Ors on 9 April, 1974


The main controversy before us centers round the question whether that appeal was maintainable on this question the position seems to us well-established. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one's peril,_bring a suit of one's choice. It is no answer to a suit howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.


Under section 96(1) of the Code of Civil Procedure, save where otherwise expressly provided by the Code or by any other law for the time being in force, an appeal lies from every decree passed by any court exercising original jurisdiction, to the court authorised to hear appeals from the decisions of such court. Section 100 provides for a second appeal to the High Court from an appellate decree passed by a court subordinate to the High Court. Section 104(1) provides for appeals against orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the Code or by any law for the time being in force an appeal shall lie "from no other orders". Clause (i) of this section provides for an appeal against "any orders made under Rules from which an appeal is expressly allowed by rules". 'Order 43, Rule 1 of the Code, which by reason of clause (i) of section 104(1) forms a part of that section, provides for appeals against orders passed under various rules referred to in clauses (a) to (w) thereof, Finally, section 105(1) of the Code lays down that save as otherwise expressly provided, no appeal shall lie from any order made by a court in exercise of its original or appellate jurisdiction.


These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under, rules from which an appeal is expressly allowed by Order 43, Rule 1.


No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal.


Supreme Court of India

Ramankutty Guptan vs Avara on 5 February, 1994

It is settled law that an appeal is a continuation of the suit. Therefore, where a decree for specific performance has been dismissed by the trial court, but decreed by the appellate court, it should be construed to be in the same suit.



Supreme Court of India

Hari Shankar vs Rao Girdhari Lal Chowdhury on 5 December, 1961

The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done is second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. Under s. 115 of the Code of Civil Procedure. the High Court's power are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to jurisdiction and jurisdiction alone. In other acts, the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit.


The phrase "according to law" refers to the decision as a whole, and is not to be equated to errors of law or of fact simpliciter. It refers to the overall decision, which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which s. 115 is limited. But it must not be overlooked that the section in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit-is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is "according to law"



DOCTRINE OF MERGER :

Supreme Court of India

Kunhayammed & Ors vs State Of Kerala & Anr on 19 July, 2000


(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.


ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.


(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.


iv) An order refusing special leave to appeal may be a non- speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.


v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.


(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.


(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a revew petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C.



In Commissioner of Income-tax, Bombay Vs. M/s Amritlal Bhogilal and Co. AIR 1958 SC 868 this Court held :


There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement.




ORDER 41 RULE 27:

As a general rule, the Appellate Court should not admit

additional evidence for the purpose of the disposal of an appeal, and

the parties are not entitled to produce additional evidence, whether

oral or documentary in the appellate court. The Code, however under

this rule empowers an appellate court to take additional evidence

subject to certain conditions. The power is discretionary and must be

exercised on sound judicial principles and in the interest of justice.

Additional evidence does not mean evidence over and above the

evidence led by the party in the lower court. The basic principles for

the admission of the additional evidence are;

(1) (i) The party seeking the admission of additional

evidence should be able to establish that such additional evidence

could not have been adduced at the first instance with the best

efforts;

(ii) The party affected by the admission of additional

evidence should have an opportunity to rebut it;


(iii) The additional evidence must be relevant for the

determination of the issue.

For entertaining an application for the production of

additional evidence in an appeal, any one or more of the following

conditions have to be fulfilled.

(i) The court from whose decree the appeal is preferred has

refused to admit evidence which ought to have been admitted; or

(ii) The party seeking to produce additional evidence

establishes that notwithstanding the exercise of due diligence, such

evidence was not within his knowledge or could not, after the

exercise of due diligence , be produced by him at the time when the

decree appealed against was passed; or

(iii) The appellate court required any document to be produced

or any witness to be examined to enable it to pronounce judgment or

for any other substantial cause.



Supreme Court of India

Shivajirao Nilangekar Patil vs Dr. Mahesh Madhav Gosavi & Ors. And ... on 9 December, 1986

The basic principle of admission of additional evidence is that the person seeking the admission of additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance. Secondly the party affected by the admission of additional evidence should have an opportunity to rebut such additional evidence. Thirdly, that additional evidence was relevant for the determination of the issue.


Supreme Court of India

Choudhary Sahu (Dead) By Lrs vs State Of Bihar on 14 December, 1981


"33. The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. Illustration: A claims a sum of money as due to him from X or Y, and in a suit against both, obtains a decree against X. X appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a degree against Y."

This rule is widely expressed and it must be applied with great caution. The object of this rule is to empower the Appellate Court to do complete justice between the parties. Under this rule the Court has power to make a proper decree notwithstanding that the appeal is as to part only of the decree and such power may be exercised in favour of all or any of the parties even though they may not have filed an appeal or objection.


Reliance has been placed on Nirmala Balai Ghosh & Anr. v. Balai Chand Ghose & Ors.(1) This Court dealing with the scope of order 41, rule 33, observed as follows:


"The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by o. 41, r. 33 may properly be invoked. The rule, however, does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from."

In the case cited above, there were two sets of defendants in the suit and in substance two decrees, though co-related, were passed. One of the decrees could stand apart from the other. One set of defendants were two deities. The suit was decreed against them. They did not go up in appeal nor did they take part in the proceedings either before the High Court or before the Supreme Court, although they were impleded as respondents. The other set of defendants, Nirmala, sought to invoke the powers of the Appellate Court under order 41, rule 33 to pass a decree in favour of a party not appealing so as to give the latter a benefit which she had not claimed. In such a situation this Court observed:


When a party allows a decree of the Court of First Instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate court under O. 41, r. 33, to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed. Order 41, r. 33 is primarily intended to confer power upon the appellate court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders."


Giani Ram & Ors. v. Ramiji Lal & Ors.(1) while construing the provisions of order 41, rule 33, this Court observed:


".. the expression 'which ought to have been passed' means 'what ought in law to have been passed'. If the Appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the subordinate court, if may pass or make such further or other decree or order as the justice of the case may require "

The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The rule does not confer an unrestricted right to re-open decrees which have become final merely because the Appellate Court does not agree with the opinion of the court appealed from.


Ordinarily, the power conferred by this rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this rule the Court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz., the Law of the Limitation or the Law of Court Fees etc.



Supreme Court of India

Mahavir Singh & Ors vs Naresh Chandra & Anr on 8 November, 2000


In the third circumstance the appellate court may require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The expression to enable it to pronounce judgment has been subject of several decisions including Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553 wherein it was held that when the appellate court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of court delivering it. It is only a lacuna in the evidence that will empower the court to admit additional evidence [ See : The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008]. But a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. The words or for any other substantial cause must be read with the word requires, which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply as noticed by the Privy Council in Kesowji Issur v. G.I.P.Railway [supra]. It is under these circumstances such a power could be exercised. Therefore, when the first appellate court did not find the necessity to allow the application, we fail to understand as to how the High Court could, in exercise of its power under Section 115 CPC, could have interfered with such an order, particularly when the whole appeal is not before the court. It is only in the circumstances when the appellate court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate court passed the order on the application filed under Order XLI, Rule 27 CPC, the whole appeal was before it and if the first appellate court is satisfied that additional evidence was not required, we fail to understand as to how the High Court could interfere with such an order under Section 115 CPC. In this regard, we may notice the decision of this Court in Gurdev Singh & Ors. vs. Mehnga Ram & Anr., 1997 (6) SCC 507, in which the scope of exercise of power under Section 115 CPC on an order passed in an application filed under Order XLI, Rule 27 CPC was considered. When this decision was cited before the High Court, the same was brushed aside by stating that the principle stated therein is not applicable to the facts of this case. We do not think so. The High Court ought not to have interfered with such an order.


Supreme Court of India

Nazir Mohamed vs J.Kamala And Ors. on 27 August, 2020



The principles for deciding when a question of law becomes a substantial question of law, have been enunciated by a Constitution Bench of this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. 1. AIR 1962 SC 1314, where this Court held:-


”The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.”


30. In Hero Vinoth v. Seshammal2, this Court referred to and relied upon Chunilal v. Mehta and Sons (supra) and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law.


31. The relevant paragraphs of the judgment of this Court in Hero Vinoth (supra) are set out hereinbelow:-


“21. The phrase ”substantial question of law”, as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying ”question of law”, means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words ”of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution.

The substantial question of law on which a second appeal 2(2006) 5 SCC 545 shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928 PC 172] the phrase substantial question of law as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557) “When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.”


32. To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.


33. To be a question of law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.


34. Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, as in this case, a second appeal cannot be entertained, as held by this Court in Panchagopal Barua v. Vinesh Chandra Goswami3.


35. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari4.


36. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of

evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam. An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter.


37. The principles relating to Section 100 CPC relevant for this case may be summarised thus :


(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.

(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.


(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence;


(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.


Bombay High Court

Sonubai Yeshwant Jadhay vs Bala Govinda Yadav And Ors. on 14 January, 1983

After all, the provisions of Section 100(4) are the parts of the procedural law and the mandate of that provisions to the Court though binding on all whose who seek to move the process of second appeal. Evident as it is that sub-section (4) enjoins the Court to frame the substantial question on which the appeal has been admitted. A failure on the part of the Court while admitting the appeal in this regard would allowed in law be the error of the Court though party affect thereby has to move diligently for its correction. However, failure to documents so cannot result in automatically affection the order of admission and making an order of dismissing the appeal for want of proper prosecution. This is not to observe that appellee has no duty nor any obligation. Even with regard to such errors he has to be diligent enough to bring the same to the notice of Court and get it corrected. In a given case if the contract of the party in this regard lacked bona fide such a result may be reached. But as a matter of law party cannot be pentalised for the error of Tanubai Court. it is pertinent to observe that under the proviso to sub-sec (5) of Section 100 additional substantial questions of law can well be permitted to be raised with the leave of the Court and along with the initial question firmed can partake and formulate the subject-matter of the debate in such appeal. This proviso in indicative of the legislative intention in this regard. It confers enabling power upon Court and consequent entitlement in favour of the party. The restrictive scheme of Section 100 conched in mandatory terms firstly cast a duty on the Court not to admit the appeals which documents not involve substantial question of law, for, such an appeal is not provided for and secondly, it requires the admission order to speak about the spell out such substantial question and thirdly on that question the notice has to be issued to the respondent, who are enabled to show that such a question is neither a substantial question of law, nor arises in a given appeal, but further at that stage with the leave of the Court the appellant is further enabled to rely on any other substantial question of law which can form the part of the debate at the final hearing stage. While working out this compact scheme, however, occasion like the present one may arise wherein though the Court admitted the appeal it failed to spell out the substantial question of law as enjoined by sub-section (4). Doubtless such a situation is regrettable. Nonetheless, such omission is the omission of the Court and not of the party. The principle that applies to the omission, errors or mistakes on the part of the Court should always be available in such an eventuality provided the course of justice is not prejudiced of affected to opponent's disadvantage. Once the litigant has diligently followed the procedural law, he cannot be punished for the omission of the Court. To act ex debito justitiae is the basis rule in matters of administration of justice and, particular when it arises out of the procedural laws. Failure on the part of the Court, therefore, though serious does not affect the process of appeal, which is set for final hearing, nor can the appeal be dismissed for that reason. There are ample complementary and supplementary inherent powers with which the Court is clothed to cure such defects and that is expressly recognised by the provisions of Section 151 of the Code of Civil Procedure. Drawing upon that power in a given case, the Court would be entitled to cure such a defect of Court failure to comply with the mandatory requirement of sub-section (4) of Section 100 even later stage.



Supreme Court of India

Kirpa Ram (D) Tr.Lrs. . vs Surender Deo Gaur on 16 November, 2020

In a judgment reported as Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar, this Court held that the second appeal can be dismissed without even formulating the substantial question of law. The Court held as under:


“18. In the light of the provision contained in Section 100 CPC and the ratio decided by this Court, we come to the following conclusion:

(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;

(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the respondent;

(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 CPC.”


Sudam Kisan Gavane (D) thr. L.Rs. and Ors v. Manik Ananta Shikketod (D) by L.Rs. and Ors decided on 29-08-2019

4. Section 100 of Code of Civil Procedure reads as under:


100. Second appeal - (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.


(2) An appeal may lie under this Section from an appellate decree passed ex parte.


(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.


(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.


(5) The appeal shall be heard on the question so formulated and the Respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:


Provided that nothing in this Sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.


5. A bare reading of Section 100 of Code of Civil Procedure makes it abundantly clear that an appeal can only lie if there is a substantial question of law involved in the appeal. Sub-section (3) makes it clear that the memorandum of appeal filed Under Section 100 of Code of Civil Procedure 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 the High Court to formulate the substantial questions of law in terms of Sub-section (4) of Section 100 of Code of Civil Procedure.


6. 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 the 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. Obviously, if no substantial question(s) of law arises then the appeal has to be dismissed at the threshold.


7. Sub-section (5) mandates that the appeal shall be heard on the questions so formulated. It is, thus, clear that the 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. We would, however, like to make it clear that 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.


8. The proviso to Section 100 of Code of Civil Procedure 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, it is important to note, that 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. We are clearly of the view that the High Court erred in hearing the appeal finally when questions of law have not been framed and formulated the questions of law only in the judgment.


9. Therefore, we set aside the order of the High Court on the short ground that the substantial questions of law were not framed before arguments were heard.


10. We remand the matter to the High Court and request, the High Court to decide the questions of law after hearing the parties. We give liberty to the High Court to reframe the questions of law after hearing the parties. We further request the High Court to treat this case as a second appeal having been filed in the year 1990 and give it priority accordingly.



Supreme Court - Daily Orders

Kirodi (Since Deceased) Through ... vs Ram Parkash on 10 May, 2019

Constitution Bench of this Court however in Pankajakshi (Dead) through L.Rs. & Ors. (supra) opined that Section 97 of the Amendment Act prohibited amendments made in the principal Act which were repugnant to the same and, therefore, if any state amendment to the Code was enacted by the state legislature or a rule was made by the High Court of State in respect of the provisions of the Code which ran counter to the Code, it would be hit by the provisions of the savings clause of the Amendment Act. The caveat, however, was that the legislation in question being the Punjab Act is a pre-Constitution Act and hence is not a legislation hit by the provisions of Article 254 of the Constitution of India which holds state enactments to be repugnant to the enactments when they run counter to the laws enacted by the centre through the concurrent list. The legislation was saved by Article 372(1) of the Constitution of India being a pre-Constitutional enactment which was to continue in to be force until altered or repealed or amended by a competent legislature. No such repeal took place, hence, the legislation continues to operate.

The effect of the judgment of the Constitution Bench is that insofar as the State of Punjab is concerned, a second appeal does not require formulation of a substantial question of law since the Punjab Act would be applicable for the State. Hence, Section 100 of the Code would not hold the field having supervening effect.

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