The Supreme Court restated the import of Section 100 of CPC by ruling that the “substantial question of law” which is the very basis of maintainability of a second appeal, is to be framed by the High Court at the stage of admission itself.
The said decision was delivered by the Apex Court in the matter of Surat Singh (Dead) Vs. Siri Bhagwan, C.A. Nos.9118-9119 of 2010 decided on 19.02.2018
The controversial fact in the present case was that the High Court did not frame any substantial question of law while admitting the appeal as per sub-section(4) of Section 100, however, the High Court proceeded to allow the second appeal and while doing so framed the substantial question of law in the concluding para of the impugned judgment.
The Apex Court reiterated the import of Section 100 of the CPC and stated that the section requires that once the High Court is satisfied after hearing the appellant or his counsel 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 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 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 Court duly noted that in the present case also the High Court was under a legal obligation to frame the substantial question at the time of admission of the appeal after hearing the appellant or/and his counsel under sub-section (4) of Section 100 of the Code, but the High Court did it while passing the final judgment in its concluding para. The Court held that such procedure adopted by the High Court was contrary to the scheme of Section 100 of the Code and rendered the impugned judgment legally unsustainable.
The Court also observed that the procedure adopted by the High Court also resulted in causing prejudice to the respondents because the respondents could not object to the framing of substantial question of law. Indeed, the respondents could not come to know on which question of law, the appeal was admitted for final hearing. If the question of law is not framed under sub-section (4) at the time of admission or before the final hearing of the appeal, there remains nothing for the respondent to oppose the second appeal at the time of hearing.
The Court ruled that it is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. The jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4).