Source: Supreme Court

Why in News?

Recently, the Supreme Court (SC) in the matter of Suresh Lataruji Ramteke v. Sau. Sumanbai Pandurang Petkar stated that High Courts, while exercising their jurisdiction of Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) should ordinarily frame substantial questions at the stage of admission.

What is the Background of Rajesh v. State of MP Case?

• The respondent (Sumanbai Pandurang Petkar, defendant in the original suit) agreed to sell the property i.e., subject matter of dispute.
• The Divisional Commissioner, Nagpur, accorded necessary permissions for transfer for such sale.
• Various attempts were made for the execution subject to the above permission and the plaintiff issued notices to that effect, which were served on the respondents requiring them to be present at the office of the authority concerned on a given date.
• Notices, however, remained not complied with as the defendants allegedly tried to evade coming to the office of the authority for such purpose.
• Hence suit was filed which went through following stages:
  • The Trial Court framed certain issues and directed the plaintiff to deposit ₹ 6 lakh with the Court within 15 days and upon such deposit, the defendant was to necessarily execute the sale deed to be entitled to withdraw the said amount.
  • First Appellate Court in addition to the questions framed by the Trial Court, framed two additional issues - whether the suit is within limitation and whether the impugned judgement required interference?
    • The court found the suit within limitation and the findings of the trial court were not disturbed.
• In second appeal, High Court (HC) framed substantial questions and held that the concurrent findings of the trial courts were based on “complete misapplication of law” and “erroneous consideration” hence the concurrent judgements rendered by both the Courts below were set aside and appeal was dismissed.
• Thereafter, the present appeal was made to the SC.

What were the Court’s Observations?

• The SC expressed its disapproval towards the handling of the appeal by the HC, noting that it was done hastily and without affording the parties a sufficient opportunity for a hearing and stated “The haste with which the Court proceeded to dispose of the appeal without proper and adequate opportunity to address arguments cannot be appreciated. The governing statute lays considerable emphasis on hearing the parties on all questions and the same is reflected in various pronouncements of this Court. The approach adopted by a Court in disposing of such appeals must abide by the same.”
• The SC cited several judgments on this matter, described as follows:
  • Santosh Hazari v. Purushottam Tiwari (2001): A 3 judge Bench of SC, mentioned what constitutes a substantial question of law:­
    • A question not previously settled by law of land or a binding precedent.
    • Any material bearing on the decision of case.
    • A new point raised for the first time before the HC is not a question involved in the case unless it goes to the root of the matter.
  • Gurdev Kaur v. Kaki (2007): Division Bench of SC has held that the HC’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved.
  • In two cases namely Umerkhan v. Bimillabi (2011) and Shiv Cotex v. Tirgun Auto Plast Pvt Ltd. & Ors. (2011), SC held that non­-formulation of substantial question(s) of law renders proceedings “patently illegal”.
• SC opined that in the case at hand, the HC in Second Appeal has overturned concurrent findings of facts without pointing out the exceptional circumstance or the perversity in the findings of the courts below, accordingly the judgment of the HC passed in second appeal was set aside and remanded the matter to the HC for fresh consideration.

What are the Legal Provisions of CPC Involved?

Appeal

• The expression appeal as it is, is not defined under the Code. It though can be described as Judicial Examination of the decision by a Higher Court of the decision of a Lower Court.
• Basic Elements of Appeal:
  • A verdict
  • A person aggrieved
  • A reviewing body ready and willing to take such appeal.
• The right to appeal is not an inherent right and the appeal only lies where the statute provides for the same.
• An appeal is a continuation of a suit and a decree passed by the appellate court would be construed to be a decree passed by the court of first instance.
• Section 96 of the code provides for the situation where appeals may or may not lie from original decree as:
  • An appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
  • An appeal may lie from an original decree passed ex parte.
  • No appeal shall lie from a decree passed by the Court with the consent of the parties.
  • No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees.
• The provisions for second appeal is provided under Section 100 as:
  • Section 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.
• Section 102 provides that no second appeal lies, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.