Case Note & Summary
The litigation arose from a suit for declaration of ownership based on oral partition, possession, and ancillary reliefs. The trial court decided the suit on 11/10/2000, but its operative order omitted whether the suit was decreed or dismissed. Treating it as dismissal, the original plaintiff filed a first appeal, which was dismissed on 14/08/2012. The plaintiff then filed Second Appeal No.33/2013. On 04/09/2015, the High Court remanded the matter to the trial court for fresh consideration, noting two grounds: the trial court's failure to mention decree or dismissal in the operative order and the first appellate court's failure to discuss cited judgments. The review applicant, original defendant no.1, challenged that remand order on grounds including non-mention of his counsel's absence, absence of grievance in the second appeal memo about the operative order, failure to frame substantial questions of law, and availability of Section 152 CPC remedy. The court distinguished review jurisdiction from appellate jurisdiction and held that non-mention of counsel's absence did not constitute an error apparent on the face of the record. It also declined to entertain the ground regarding the first appellate court's failure to frame points for determination under Order 41 Rule 31 CPC as that would amount to appellate review. However, after examining the second appeal record, the court found that it had issued notice, called for the record, adjourned the matter for admission, and then on 04/09/2015 admitted the appeal and disposed of it by consent without framing any substantial question of law. Relying on Singaram v. Ramanathan, LL 2021 SC 445, the court held that framing of a substantial question of law is mandatory when a second appeal is admitted, even if no opinion on merits is expressed and the appeal is decided by remand. The omission to frame such question was held to be an error apparent on the face of the record, requiring exercise of review jurisdiction. Accordingly, the review application was allowed, the judgment dated 04/09/2015 in Second Appeal No.33/2013 was reviewed, and the second appeal was restored and listed for admission on 18/10/2021. Notice was waived by the counsel present, and the review applicant was directed to intimate the order to the Municipal Council.
Headnote
A) Civil Procedure - Review Jurisdiction - Error Apparent on Face of Record - Code of Civil Procedure, 1908, Order 47 Rule 1 - Review jurisdiction is narrower than appellate jurisdiction and can be exercised only when there is an error apparent on the face of the record. The review applicant contended that non-mention of his counsel's absence and failure to frame substantial questions of law were errors apparent. Held that non-mention of counsel's absence is not an error apparent, but failure to frame substantial question of law after admission is (Paras 9-10, 15-17). B) Civil Procedure - Second Appeal - Substantial Question of Law - Code of Civil Procedure, 1908, Section 100 - Framing a substantial question of law is mandatory when a second appeal is admitted, even if the appeal is disposed of by remand without expressing any opinion on merits. The court examined the second appeal record and found that notice was issued, record called, matter adjourned for admission, and appeal was decided on 04/09/2015 without framing any substantial question. Held that this omission is an error apparent on the face of the record requiring review and restoration of the second appeal (Paras 12-17). C) Civil Procedure - First Appeal - Points for Determination - Code of Civil Procedure, 1908, Order 41 Rule 31 - The First Appellate Court is required to frame proper points for determination. The court observed that the necessity of framing such points is undisputed, but entertaining that ground in review jurisdiction would amount to exercising appellate jurisdiction, which is impermissible. Held that the review applicant's complaint regarding the First Appellate Court's failure to frame points for determination could not be considered as an error apparent for review purposes (Paras 6, 11).
Issue of Consideration
Whether there was an error apparent on the face of the record in the judgment dated 04/09/2015 in Second Appeal No.33/2013, particularly regarding the failure to frame substantial questions of law while admitting and disposing of the second appeal.
Final Decision
The review application was allowed. The judgment dated 04/09/2015 passed in Second Appeal No.33/2013 was reviewed, and Second Appeal No.33/2013 was restored. The second appeal was directed to be listed for admission on 18/10/2021. Notice was waived by counsel for the parties, and the review applicant was directed to intimate the order to the Municipal Council.
Law Points
- Review jurisdiction limited to error apparent on face of record
- Substantial question of law must be framed when second appeal is admitted
- Non-mention of counsel's absence is not error apparent
- Remedy under Section 152 CPC not exhausted does not bar review
- Points for determination under Order 41 Rule 31 CPC are necessary but not reviewable ground
