ARSAD SK. & ANR.versusBANI PROSANNA KUNDU & ORS.

                      [2014] 3 S.C.R. 847


                      ARSAD SK. & ANR.                                A
                                v.
              BANI PROSANNA KUNDU & ORS.
               (Civil Appeal No. 4805 of 2014)

                        APRIL 23, 2014
                                                                      B
           [CHANDRAMAULI KR. PRASAD AND
              PINAKI CHANDRA GHOSE, JJ.]

        CODE OF CIVIL PROCEDURE, 1908: s.100 - Second
  appeal - Substantial question of law - Non-framing of               C
  substantial question of law at the time of admission of second
  appeal but framing thereof after conclusion of the arguments
  - Correctness of - Held: The general rule regarding an appeal
  u/s. 100 is that the jurisdiction of High Court is limited to the
  substantial question of law framed at the time of the admission     o
  of appeal - However, omission of the High Court in
\ formulating the 'substantial question of law' (while admitting
  the appeal) does not preclude the same from being heard,
  as litigants should not be penalized for an omission of the
  Court - Substantial question of law can be formulated in some       E
  exceptional cases, at a later point of time, even at the time of
  argument stage provided the opposite party is put on notice
  thereon and is given a fair or proper opportunity to meet out
  the point - Furthermore, the judgment of High Court should
  be set aside on the ground of non-compliance with sub-              F
  section (4) of s.100, only if some prejudice has been caused
  to the appellants by not formulating such a substantial
  question of law.

     The question which arose for consideration in the
 instant appeal was whether the impugned judgment ·G
 passed by the High Court in second appeal suffered from
 patent error on the ground that the High Court did not
 frame the substantial question of law at the time of

                                847                                   H
    848      SUPREME COURT REPORTS            [2014] 3 S.C.R.

A admission of the second appeal but formulated a
  question only in the impugned judgment after conclusion
  of the arguments.

          Dismissing the appeal, the Court

B      HELD: 1. In the instant case, no substantial question
  of law was formulated at the time of admission of appeal
  and as such the question was understood to be
  regarding the correctness of judgments of the lower
  courts. Furthermore, if any such lapse in adhering to the
C procedure existed at the second appellate stage, the
  counsel for the parties should have pointed out the same
  at that stage only but they never did so. Moreover, the
  High Court basically framed the substantial question of
  law, though at a later stage, and then answered it. [Para
D 7] [852-C-D]

       2. The general rule regarding an appeal under
  Section 100 of CPC is that the jurisdiction of the High
  Court is limited to the substantial question of law framed
  at the time of the admission of appeal or at a subsequent
E later stage, if the High Court is satisfied that such a
  question of law arises from the facts found by the Courts
  below. [Para 8] [852-E-F]

      Manicka Poosali & Ors. v. Anjalai Ammal & Anr. (2005)
F 10 sec 38: 2005 (2) SCR 1027 - relied on.

      3. In light of the well accepted principle that rules of
  procedure is a handmaiden of justice, the omission of the
  Court in formulating the 'substantial question of law'
  (while admitting the appeal) does not preclude the same
G from being heard as litigants should not be penalized for
  an omission of the Court. In the instant case, the
  substantial question of law was formulated by the High
  C,ourt, though not at the admission stage but at a later
  stage before the hearing, it does not follow that merely
H
  ARSAD SK. & ANR. v. BANI PROSANNA KUNDU              849


because the "substantial question of law" was                 A
formulated by the High Court at a later stage, the
judgment of the High Court becomes a nullity, liable to
be set aside on that ground alone and for the same the
appellants must also show prejudice· to them on this
account. (Paras 9 and 1O] (852-F-H; 853-A-B]                  B
   Kannan & Ors. v. V. S. Pandurangam (2007) 15 SCC
157: 2007 (12) SCR 591 - relied on.

     4. Substantial question of law can be formulated at
the initial stage and in some exceptional cases, at a later   C
point of time, even at the time of argument stage such
substantial question of law can be formulated provided
the opposite party should be put on notice thereon and
should be given a fair or proper opportunity to meet out
the point. Furthermore, the judgment of the High Court        D
should only be set aside on the ground of non-
compliance with sub-section (4) of Section 100 of CPC,
if some prejudice has been caused to the appellants by
not formulating such a substantial question of law. In the
instant case, substantial question of law was framed by       E
the High Court before the hearing took place and the
appellants were put on notice and after giving an
opportunity to the appellants to meet the question,
second appeal was decided by the High Court. Therefore,
no prejudice has been caused to the appellants. [Paras        F
11, 12] (853-E-H; 854-A]
                  CASE LAW REFERENCE
    2005 (2 ) SCR 1027       Relied on           Para 8
    2007 (12) SCR 591       Relied on            Para 10      G

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4805 of 2014.

    From the Judgment and Order dated 13.03.2008 of the       H
    850       SUPREME COURT REPORTS                  (2014] 3 S.C.R.


A   High Court at Calcutta in Second Appeal No. 490 of 2003.

          Uday Tiwari, Dharmendra Kumar Sinha for the appellants.

       Ranjan Mukherjee, Siddhartha Chowdhury, Snehasish
    Mukherjee for the Respondents.
B
          The Judgment of the Court was delivered by

          PINAKI CHANDRA GHOSE, J. 1. Leave granted.

      2. This appeal is directed against the judgment and
C decree dated March 13, 2008 passed by the High Court of
  Calcutta in Second Appeal No.490 of 1993 by which the High
  Court while allowing the second appeal filed by the respondents
  herein, set aside the concurrent judgments of the Trial Court
  and the First Appellate Court.
D
        3. The facts revealed in this case are that respondent
  Nos.1 to 6 herein filed a suit in the Court of First Munsif, District
  Maida, praying, inter alia, for a permanent injunction against the
  defendants (who are appellants herein) by declaring the title
E over 27 decimals of land in R.S. Plot No.95/425 situated in
  Mouza Mahesh Mati, P.S. Engrej Bazar in District Maida, West
  Bengal. The Munsif Court, Maida, by its judgment and order
  dated May 15, 1989 dismissed the said suit with the finding
  that the plaintiffs did not have any right, title or interest in the
F schedule property. Aggrieved by the dismissal of their suit, the
  respondents-plaintiffs preferred first appeal, being O.C. Appeal
  No. 25 of 1989, before the District Judge, Maida, wherein they
  specifically pleaded that they owned and possessed the suit
  land within the boundary through purchase and gifts.
  Simultaneously, further claimed the title to the whole area by
G adverse possession. On July 12,1991, the Assistant District
  Judge, Maida dismissed the First Appeal and upheld the
  findings of the Trial Court. Aggrieved thereby the respondents-
  plaintiffs preferred a second appeal before the Calcutta High
  Court stating, inter alia, that in a dispute in a conveyance deed
H
 ARSAD SK. & ANR. v. BANI PROSANNA KUNDU                     851
        [PINAKI CHANDRA GHOSE, J.]
between the area and description of boundary, the description        A
of boundary would prevail and also pointed out that the Court
below had failed to consider the question of adverse
possession.

      4. The High Court by its judgment and order dated March
                                                                     8
13, 2008 set aside the concurrent judgments of the Trial Court
and the First Appellate Court and allowed the second appeal
filed by the respondents, holding that where there is a dispute
in a conveyance deed between the area and the description
of the boundary, the description of the boundary shall prevail.
Aggrieved by the said judgment and order passed by the High          C
Court, the appellants have come up before this Court by filing
this appeal.

     5. Learned counsel appearing on behalf of the appellants
submitted that the impugned judgment passed by the High              o
Court in second appeal suffers from patent errors, both in law
and in fact. It was submitted that the High Court did not frame
the substantial question of law at the time of admission of the
second appeal but formulated a question only in the impugned
judgment after the arguments had been concluded.                     E

      6. Per contra, the case of the respondents is based on the
premise that under the proviso to sub-Section (5) of Section
100 of the Code of Civil Procedure, 1908 (hereinafter referred
to as "CPC"), nothing shall be deemed to take away or abridge
the power of the Court to hear, for reasons to be recorded, the      F
appeal on any other substantial question of law, not formulated
by it, if it is satisfied that the case involves such question and
the High Court has correctly proceeded to frame the question
of law set out in the impugned judgment. It is further submitted
that the question of law as set out by the High Court in the         G
impugned judgment is the appropriate and substantial question
of law arising in the facts and circumstances of this case and
that the appeal should be dismissed as the Second Appellate
Court has merely set right the apparent perversity in the
                                                                     H
    852      SUPREME COURT REPORTS                    [2014] 3 S.C.R.

A judgments of the lower courts. It is submitted that the High Court
  has correctly decided the matter on the basis of the question
  of law framed in the impugned judgment by holding, inter alia,
  that where there is a dispute between the area of the transferred
  land indicated in the deed and the boundaries mentioned in the
8 deed,   boundaries mentioned in the conveyance deed shall
  prevail.

        7. In the present case, it appears from the impugned
  judgment that no substantial question of law was formulated at
  the time of admission of appeal and as such the question was
C understood to be regarding the correctness of judgments of the
  lower courts. Furthermore, if any such lapse in adhering to the
  procedure existed at the second appellate stage, the counsel
  for the parties should have pointed out the same at that stage
  only but they never did so. Moreover, it is clear that the High
D Court basically framed the substantial question of law, though
  at a later stage, and then answered it.

       8. The general rule regarding an appeal under Section 100
  of CPC is that the jurisdiction of the High Court is limited to
E the substantial question of law framed at the time of the
  admission of appeal or at a subsequent later stage, if the High
  Court is satisfied that such a question of law arises from the
  facts found by the Courts below. The same has been noted by
  this Court in Manicka Poosali & Ors. v. Anjalai Ammal & Anr. 1•

F         9. In light of the well accepted principle that rules of
    procedure is a handmaiden of justice, the omission of the Court
    in formulating the 'substantial question of law' (while admitting
    the appeal) does not preclude the same from being heard as
    litigants should not be penalized for an omission of the Court.
G
         10. In the present case it is true that the substantial question
    of law was formulated by the High Court, though not at the
    admission stage but at a later stage before the hearing, it does

H 1. (2005) 10 sec 38.
      ARSAD SK. & ANR. v. BANI PROSANNA KUNDU                  853
             [PINAKI CHANDRA GHOSE, J.]

 not follow that merely because the "substantial question of law"      A
 was formulated by the High Court at a later stage, the judgment
 of the High Court becomes a nullity, liable to be set aside by
 this Court on that ground alone and for the same the appellants
 before us must also show prejudice to them on this account.
 This Courttn the case Kannan & Ors. v. V.S. Pandurangam 2             B
 even went on to hold as under:

        "In our opinion, this Court should not take an over-
       technical view of the matter to declare that every
       judgment of the High Court in second appeal would be            C
       illegal and void, merely because no substantial question
        of Jaw was formulated by the High Court. Such an over-
        technical view would only result inremitting the matter to
        the High· Court for a fresh decision, and thereafter the
        matter may again some up before us in appeal. The
       judiciary is already over~burdened with heavy arrears,          D
        and we should not take a view which would add to the
        arrears."

       11. In light of the above, we are of the opinion that
  substantial question of law can be formulated at the initial stage   E
  and in some exceptional cases, at a later point of time, even
  at the time of argument stage such substantial question of law
  can be formulated provided the opposite party should be put
  on notice thereon and should be given a fair or proper
  opportunity to meet outthe point. Furthermore, the judgment of       F
  the High Court should only be set aside on the ground of non-
. compliance with sub-section (4) of Section 100 of CPC, if
  some prejudice has been caused to the appellants before us
  by not formulating such a substantial question of law.               /

      12. In the instant case, we have noticed that substantial        G
 question of law was framed by the High Court before the
 hearing took place and the appellants were put on notice and
 after giving an opportunity to the appellants to meet the

 2.    (2007) 15 sec 157.                                              H
    854      SUPREME COURT REPORTS                [2014] 3 S.C.R.


A   question, second appeal was decided by the High Court.
    Therefore, in our opinion no prejudice has been caused to the
    appellants.

         13. In view of the discussion in the foregoing paragraphs,
    we find no merit in this appeal and the same is dismissed
8
    accordingly. However, there shall be no order as to costs.

    D.G.                                       Appeal dismissed.