Case Note & Summary
The Supreme Court dealt with a civil appeal arising from a second appeal under Section 100 of the Code of Civil Procedure, 1908. The second appeal was filed by the appellants (original defendants) against a decree passed by the first appellate court. The High Court admitted the appeal on 11.06.1990 without framing any substantial question of law, merely recording 'Heard. Admit'. The appeal was heard on 02.05.2009 and judgment reserved, again without any formulation of questions. The judgment delivered on 10.06.2009 mentioned certain substantial questions of law for the first time. The Supreme Court found this procedure contrary to the mandate of Section 100 CPC, which requires the High Court to formulate substantial questions of law at the time of admission or at least before hearing the appeal. The Court emphasized that parties must know the questions to effectively assist the court. Sub-section (4) casts a duty on the High Court to formulate questions, and sub-section (5) mandates that the appeal be heard on those questions. The proviso allows formulation of additional questions at final hearing but only after recording reasons and hearing parties. Since the High Court failed to frame questions before hearing, the Supreme Court set aside the judgment and remanded the matter to the High Court for fresh hearing after framing substantial questions of law. The Court also directed the High Court to treat the appeal as pending since 1990 and give it priority, and left the issue of abatement due to death of respondent no.2 to be decided by the High Court. The appeal was allowed in the aforesaid terms.
Headnote
A) Civil Procedure - Second Appeal - Substantial Questions of Law - Section 100 Code of Civil Procedure, 1908 - The High Court admitted a second appeal without framing any substantial question of law and later framed them only in the judgment after hearing arguments - The Supreme Court held that this procedure is unfair as parties must know the questions to assist the court - The appeal must be heard only on the questions formulated before hearing, and if new questions arise, reasons must be recorded and parties heard - The impugned judgment was set aside and the matter remanded for fresh hearing after framing questions (Paras 1-5).
Issue of Consideration
Whether the High Court can frame substantial questions of law for the first time in the judgment without having framed them before hearing the second appeal under Section 100 CPC
Final Decision
The Supreme Court set aside the High Court's judgment and remanded the matter to the High Court for fresh hearing after framing substantial questions of law. The High Court was directed to treat the appeal as pending since 1990 and give it priority. The issue of abatement due to death of respondent no.2 was left to the High Court. The appeal was allowed in the aforesaid terms.
Law Points
- Section 100 CPC mandates formulation of substantial questions of law before hearing second appeal
- failure to frame questions before hearing vitiates the proceeding
- parties must know the questions to assist court effectively
