HEMAVATHI AND ORS.versusV. HOMBEGOWDA AND ANR.

                  [2023] 12 S.C.R. 477 : 2023 INSC 848



                             CASE DETAILS

                        HEMAVATHI AND ORS.
                                      v.
                    V. HOMBEGOWDA AND ANR.
                  (Civil Appeal Nos. 5780-5781 of 2023)
                          SEPTEMBER 11, 2023
         [B.V. NAGARATHNA AND UJJAL BHUYAN, JJ.]

                              HEADNOTES


     Issue for consideration: High Court whether justified in allowing
Regular Second Appeal filed u/s.100, Code of Civil Procedure, 1908 without
framing the substantial question of law.
     Code of Civil Procedure, 1908 – s.100 – Second Appeal – Substantial
question of law not framed – Impropriety:
       Held: First appellate court is the final Court insofar as the question of
facts are concerned and it is only when substantial questions of law would
arise in a case that the High Court can entertain a Regular Second Appeal – If
at the stage of admission such substantial questions of law are discerned by
the High Court the same would have to be framed and the appeal(s) would
have to be admitted – It is only thereafter that the parties have to be heard
on the substantial questions of law framed by the High Court at the stage
of admission – However, the CPC gives power to the High Court to frame
additional substantial questions of law or to mould the substantial questions
of law already framed on hearing the parties at the time of final hearing of
a Second Appeal – In the event the respondents before the High Court are
on record even at the stage of admission of a Regular Second Appeal and
the same is to be disposed of finally even at this stage substantial questions
of law must be framed and answered before the Regular Second Appeal is
admitted and disposed – In the present case, the same was not framed – Said
error is compounded by the Judge stating in the order passed in the review
petition that no such substantial question of law arose in the appeal(s) – If

                                     477
478          SUPREME COURT REPORTS                          [2023] 12 S.C.R.


no substantial question of law arose in the case then the appeal could not
have been entertained and ought to have been dismissed at the stage of
admission – But on the other hand, in the absence of framing any substantial
question of law the appeal was allowed, that too, at the stage of admission,
without issuance of notice to the other respondents Nos.1, 3 and 4 and
by hearing only counsel for respondent No.2 before the High Court who
was on caveat – Impugned judgment and order passed in Regular Second
Appeal as well as Review Petition set aside – Matters remanded to High
Court. [Paras 13-16, 18]
      Code of Civil Procedure, 1908 – s.100 – Regular second appeal,
practice to be followed – Law – Discussed.

     Practice and Procedure – First appellate court had not considered
the Regular Appeal on merits, matter was remanded to trial court for
fresh consideration – Legality:
      Held: If the High Court thought it fit to condone the delay in filing
the Regular Appeal then the matter had to be remanded to the first appellate
court to consider the Regular Appeal on merits and not just set aside the trial
court decree and remand the case to the trial court for a fresh adjudication
– Code of Civil Procedure, 1908. [Para 12]
       LIST OF CITATIONS AND OTHER REFERENCES
     Bhagyashree Anant Gaonkar vs. Narendra @ Nagesh Bharma Holkar
and Anr. Judgment dated 07.08.2023 in C.A. No. 4935 of 2023; Roop Singh
v. Ram Singh (2000) 3 SCC 708: [2000] 2 SCR 605; C.A. Sulaiman vs. State
Bank of Travancore, Alwayee (2006) 6 SCC 392: [2006] 4 Suppl. SCR
152; State Bank of India vs. S.N. Goyal (2008) 8 SCC 9215; Municipal
Committee, Hoshiarpur v. Punjab SEB (2010) 13 SCC 216: [2010] 13
SCR 658; Umerkhan v. Bismillabi (2011) 9 SCC 684: [2011] 9 SCR 551;
Raghavendra Swamy Mutt v. Uttaradi Mutt (2016) 11 SCC 235: [2016] 3
SCR 11 – relied on.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
         HEMAVATHI AND ORS. v. V. HOMBEGOWDA                              479


     From the Judgment and Order dated 23.06.2022 and dated 13.04.2022
in RP No.536 of 2022 and RSA No.291 of 2022 respectively of the High
Court of Karnataka at Bengaluru.
     Appearances:
     M/s Nuli & Nuli, Anand Sanjay M Nuli, Agam Sharma, Dharm Singh,
Shiva Swaroop, Advs. for the Appellants.
     Ms. V. Mohana, Sr. Adv., Shanthakumar V. Mahale, Harisha S. R.,
Rajesh Mahale, Advs. for the Respondents.
       JUDGMENT / ORDER OF THE SUPREME COURT

                               JUDGMENT

     NAGARATHNA, J.
     Leave granted.
      These are two more appeals which arise from the High Court of
Karnataka within a short period of time wherein, without framing the
substantial question of law, Regular Second Appeal filed under Section
100 of the Code of Civil Procedure, 1908 (For short the “CPC”) is allowed.
Additionally notice to respondent Nos. 1, 3 and 4 may not have been issued
and served as the Second Appeal was allowed at the stage of admission and
if notice had been issued and served no counsel for the said respondents
had been heard. It is on the basis of the aforesaid two grounds alone, the
appeals would have to be allowed and the impugned order(s) of the High
Court passed in RSA No.291/2022 disposed of on 13.04.2022 and in Review
Petition No.536/2022 disposed on 23.06.2022 would have to be set aside.
      Briefly stated the facts are that the appellants herein had filed Original
Suit No.552/2003 before the Court of II Additional Senior Civil Judge,
Bengaluru Rural District, Bengaluru, Karnataka seeking the relief of partition
and separate possession of their respective shares in the suit schedule
property. By judgment and decree dated 07.02.2012, the suit was decreed
granting ¼ share to each of the plaintiffs (appellants herein).
    Being aggrieved, the defendants in the said suit preferred Regular
Appeal No. 1/2021 before the II Additional Senior Civil Judge, Bengaluru
480          SUPREME COURT REPORTS                      [2023] 12 S.C.R.


Rural District at Bengaluru seeking condonation of delay of 2945 days
in filing the appeal. By order dated 07.02.2022, the application seeking
condonation of delay was dismissed and consequently the appeal also stood
dismissed and as a result the judgment and decree of the Trial Court was
not interfered with.
     Being aggrieved by the dismissal of the Regular Appeal, the
defendants preferred the RSA No.291/2022. By the impugned judgment
dated 13.04.2022, the appeal filed by the defendant No.1 has been allowed
by condoning the delay of 2945 days in filing the Regular Appeal but
the matter has been remanded to the Trial Court for a fresh adjudication
reserving liberty to file additional written statement and directing the
Trial Court to frame additional issues, if necessary, and to take on
record the evidence of plaintiffs well as the defendant No.1 within a
period of six months and to dispose of the suit within a period of six
months thereafter. Further during the pendency of the suit, the parties
were directed to maintain status-quo in respect of the suit property as
regards possession and alienation while reserving all contentions to be
kept open to be urged before the Trial Court. At this stage itself, it may
be pointed out that the learned Judge of the High Court also lost sight
of the fact that the first appellate court had not considered the Regular
Appeal on merits but the matter has been remanded to the trial court by
passing the first appellate court.
      Being aggrieved by the judgment dated 13.04.2022 the appellants
herein, who were plaintiffs in the suit which had been decreed, preferred
Review Petition No.536/2022. By order dated 23.06.2022, the review
petition has been dismissed. Hence, these appeals.
     We have heard learned counsel for the appellants and learned senior
counsel for the contesting respondent No.1.
     Learned counsel for respondent No.2 submitted that respondent No.2
Venkataramanappa died during the pendency of the matter(s) before this
Court on 12.01.2023 and his legal representatives have not been brought on
record. He further submitted that the said Venkataramanappa had preferred
R.A. No.62/2012 but had withdrawn the same and the said appeal(s) was
dismissed as withdrawn on 10.08.2018.
         HEMAVATHI AND ORS. v. V. HOMBEGOWDA                               481
                [B.V. NAGARATHNA, J.]

     In the circumstances, in view of our proposed judgment, we do not
think at this stage the matter(s) would require the legal representatives of
the deceased-respondent No.2 to be brought on record.
      Learned counsel for the appellants submitted that there are two main
serious errors in the impugned judgment: firstly, the Regular Second Appeal
has been allowed at the stage of admission without framing a substantial
question of law which is contrary to the mandate of Section 100 of the CPC;
Secondly, it was submitted that all respondents before the High Court were
not heard in the matter(s) and this is evident on a reading of the cause title
of the impugned judgment wherein only respondent No.2 was represented
by a counsel as a caveator. Therefore, in the absence of hearing respondent
Nos.1, 3 and 4 before the High Court, the Second Appeal could not have
been allowed. Thirdly, it was contended that the High Court was not right
in condoning the delay of 2945 days in filing Regular Appeal No.1/2021
inasmuch as the first appellate court by a detailed order had dismissed the
said appeal on the ground of delay and laches. Therefore, the impugned
order/judgment of the High Court dated 13.04.2022 as well as the order
passed in the Review Petition dated 23.06.2022 may be set aside.
      Per contra, learned senior counsel appearing for the first respondent
who is the contesting respondent and appellant in R.A. No.1/2021 supported
the impugned order and submitted that since the matter(s) was being
remanded to the Trial Court reserving all contentions to be left open and by
giving additional opportunity to all parties the non-framing of the substantial
question of law and non-hearing of some of the respondents before the
High Court, is immaterial. She further submitted that ultimately pursuant
to the remand made by the High Court full opportunity will be given to all
parties and therefore, the impugned judgment and impugned order of the
High Court may not be interfered with.
      Learned counsel appearing for deceased-respondent No.2 submitted
that in the event this Court is to remand these matters to the High Court
for fresh consideration then an opportunity may be given to the legal
representatives of deceased Respondent No.2 to come on record so as to
contest the appeals in accordance with law.
      The aforesaid narration of facts and contentions would not require
reiteration. Learned counsel for the appellants has brought to our notice the
482           SUPREME COURT REPORTS                         [2023] 12 S.C.R.


following three serious lacunae in the impugned judgment as well as the
order passed in the review petition by the High Court:
      (i)   In the absence of framing any substantial questions of law, the
            Regular Second Appeal has been allowed. This is in breach of
            the mandate under Section 100 of the CPC;
      (ii) That the impugned judgment does not indicate that respondent
           Nos.1, 3 and 4 were heard by the High Court inasmuch as the
           cause title indicates that only the second respondent as caveator
           was heard and in the absence of the said respondents being heard,
           the order and judgment passed by the first appellate court in their
           favour has been set aside.
      (iii) That a delay of 2945 days has been condoned which has
            compounded the aforesaid serious infirmity in the impugned
            judgment of the High Court.
      (iv) We may also add that the matter has been remanded to the trial
           court for a fresh consideration when the first appellate court had
           not considered the Regular Appeal on merits. If the High Court
           thought it fit to condone the delay in filing the Regular Appeal
           then the matter had to be remanded to the first appellate court
           to consider the Regular Appeal on merits and not just set aside
           the trial court decree and remand the case to the trial court for a
           fresh adjudication.
      The jurisdiction of the High Court to entertain a Second Appeal is well-
known. It is a unique jurisdiction of the High Court where the High Court
can entertain a Regular Second Appeal purely on a “substantial” question of
law not even a question of law or a question of fact. It is a settled law that
the first appellate court is the final Court insofar as the question of facts are
concerned and it is only when substantial questions of law would arise in
a case that the High Court can entertain a Regular Second Appeal and if at
the stage of admission such substantial questions of law are discerned by
the High Court the same would have to be framed and the appeal(s) would
have to be admitted. It is only thereafter that the parties have to be heard
on the substantial questions of law that are framed by the High Court at the
stage of admission.
         HEMAVATHI AND ORS. v. V. HOMBEGOWDA                               483
                [B.V. NAGARATHNA, J.]

      However, the CPC gives power to the High Court to frame additional
substantial questions of law or to mould the substantial questions of law
already framed on hearing the parties at the time of final hearing of a Second
Appeal. In the event the respondents before the High Court are on record
even at the stage of admission of a Regular Second Appeal and the same
is to be disposed of finally even at this stage substantial questions of law
must be framed and answered before the Regular Second Appeal is admitted
and disposed.
      On a perusal of the impugned order, we find that the same has not
been framed. The said error is compounded by the learned Judge stating
in the order passed in the review petition that no such substantial question
of law arose in the appeal(s). In fact, it is necessary to highlight this aspect
by quoting the learned judge by what he has stated in paragraph ‘3’ of the
order passed in the review petition as under:
     “3. A perusal of the Judgment dated 13.04.2022 in RSA No.291/2022
     shows that the respondent No.2 had entered Caveat. When the
     appeal was listed for admission, this Court held that the explanation
     offered by the appellant in not filing the written statement was not
     completely acceptable but was probable. This Court also found that
     the appeal filed by the appellant before the First Appellate Court was
     dismissed as barred by time. Hence this Court felt that the appellant
     was deprived of an opportunity to defend the action brought by the
     respondents therein. Hence cost of Rs.50,000/- was imposed and the
     case was remitted for disposal within six months. This Court did not
     express any opinion on the merits of the case. This Court was aware
     of the requirement to frame the substantial question of law before
     disposing a second appeal, as declared by the Hon’ble Apex Court in
     the decisions cited by the learned counsel. However, this was not a
     case where any substantial question was involved, as the Trial Court
     did not adjudicate question was involved, as the Trial Court did not
     adjudicate the dispute on merits.”
      The aforesaid paragraph would speak for itself vis-a-vis the infirmities
in the impugned judgment and order of the High Court. If no substantial
question of law arose in the case then the appeal could not have been
entertained and ought to have been dismissed at the stage of admission.
484          SUPREME COURT REPORTS                          [2023] 12 S.C.R.


But on the other hand, in the absence of framing any substantial question
of law the appeal has been allowed, that too, at the stage of admission,
without issuance of notice to the other respondents Nos.1, 3 and 4 and by
hearing only learned counsel for the respondent No.2 before the High Court
who was on caveat. The aforesaid errors are compounded by the fact that
a sum of Rs.50,000/-(Rupees fifty thousand only) cost was awarded to the
successful plaintiffs who were respondents before the High Court in lieu
of any notice being issued to them! The aforesaid infirmities cannot be
overlooked and compensated by ordering a sum of Rs.50,000/- to be paid
by the first respondent herein (appellant in the Second Appeal before the
High Court) to the respondent-plaintiff(s).
      In this context, the law on the practice to be followed while considering
a regular second appeal, has been re-iterated by this Court in C.A. No. 4935
of 2023 in Bhagyashree Anant Gaonkar vs. Narendra @ Nagesh Bharma
Holkar and Anr. dated 07.08.2023, and the relevant extracts in this regard are
exposited as under:
      a) Roop Singh v. Ram Singh, (2000) 3 SCC 708, as relied upon
      in C.A. Sulaiman vs. State Bank of Travancore, Alwayee (2006) 6
      SCC 392:
           “7. It is to be reiterated that under Section 100 CPC jurisdiction
           of the High Court to entertain a second appeal is confined only
           to such appeals which involve a substantial question of law and
           it does not confer any jurisdiction on the High Court to interfere
           with pure questions of fact while exercising its jurisdiction under
           Section 100 CPC.”

      b) State Bank of India vs. S.N. Goyal (2008) 8 SCC 9215:
           “15. It is a matter of concern that the scope of second appeals
           and as also the procedural aspects of second appeals are often
           ignored by the High Courts. Some of the oft-repeated errors are:
           (a) Admitting a second appeal when it does not give rise to a
           substantial question of law.
           (b) Admitting second appeals without formulating substantial
           question of law.
  HEMAVATHI AND ORS. v. V. HOMBEGOWDA                             485
         [B.V. NAGARATHNA, J.]

    (c) Admitting second appeals by formulating a standard
    or mechanical question such as “whether on the facts and
    circumstances the judgment of the first appellate court calls for
    interference” as the substantial question of law.
    (d) Failing to consider and formulate relevant and appropriate
    substantial question(s) of law involved in the second appeal.
    (e) Rejecting second appeals on the ground that the case does
    not involve any substantial question of law, when the case in fact
    involves substantial questions of law.
    (f) Reformulating the substantial question of law after the
    conclusion of the hearing, while preparing the judgment, thereby
    denying an opportunity to the parties to make submissions on
    the reformulated substantial question of law.
    (g) Deciding second appeals by reappreciating evidence and
    interfering with findings of fact, ignoring the questions of law.
    These lapses or technical errors lead to injustice and also give
    rise to avoidable further appeals to this Court and remands by
    this Court, thereby prolonging the period of litigation. Care
    should be taken to ensure that the cases not involving substantial
    questions of law are not entertained, and at the same time ensure
    that cases involving substantial questions of law are not rejected
    as not involving substantial questions of law.”
c) Municipal Committee, Hoshiarpur v. Punjab SEB, (2010) 13
SCC 216:
    “16 A second appeal cannot be decided merely on equitable
    grounds as it lies only on a substantial question of law, which is
    something distinct from a substantial question of fact. The court
    cannot entertain a second appeal unless a substantial question of
    law is involved, as the second appeal does not lie on the ground
    of erroneous findings of fact based on an appreciation of the
    relevant evidence. The existence of a substantial question of
    law is a condition precedent for entertaining the second appeal;
    on failure to do so, the judgment cannot be maintained. The
486          SUPREME COURT REPORTS                          [2023] 12 S.C.R.


           existence of a substantial question of law is a sine qua non for
           the exercise of jurisdiction under the provisions of Section 100
           CPC. It is the obligation on the court to further clear the intent
           of the legislature and not to frustrate it by ignoring the same.”
      d) Umerkhan v. Bismillabi, (2011) 9 SCC 684:
           “11. In our view, the very jurisdiction of the High Court in
           hearing a second appeal is founded on the formulation of a
           substantial question of law. The judgment of the High Court
           is rendered patently illegal, if a second appeal is heard and
           judgment and decree appealed against is reversed without
           formulating a substantial question of law. The second appellate
           jurisdiction of the High Court under Section 100 is not akin to
           the appellate jurisdiction under Section 96 of the Code; it is
           restricted to such substantial question or questions of law that
           may arise from the judgment and decree appealed against. As
           a matter of law, a second appeal is entertainable by the High
           Court only upon its satisfaction that a substantial question
           of law is involved in the matter and its formulation thereof.
           Section 100 of the Code provides that the second appeal
           shall be heard on the question so formulated. It is, however,
           open to the High Court to reframe substantial question of law
           or frame substantial question of law afresh or hold that no
           substantial question of law is involved at the time of hearing
           the second appeal but reversal of the judgment and decree
           passed in appeal by a court subordinate to it in exercise of
           jurisdiction under Section 100 of the Code is impermissible
           without formulating substantial question of law and a decision
           on such question.”
      e) Raghavendra Swamy Mutt v. Uttaradi Mutt, (2016) 11 SCC 235
           “18. In the instant case, the High Court has not yet admitted the
           matter. It is not in dispute that no substantial question of law has
           been formulated as it could not have been when the appeal has
           not been admitted. We say so, as appeal under Section 100 CPC
           is required to be admitted only on substantial question/questions
           of law. It cannot be formal admission like an appeal under Section
          HEMAVATHI AND ORS. v. V. HOMBEGOWDA                               487
                 [B.V. NAGARATHNA, J.]

            96 CPC. That is the fundamental imperative. It is peremptory
            in character, and that makes the principle absolutely cardinal.”
     In the circumstances, the impugned judgment dated 13.04.2022 and
impugned order dated 23.06.2022 passed in the Regular Second Appeal
as well as the Review Petition are set aside. The matters are remanded to
the High Court to consider the same in accordance with law and by being
mindful of the aforementioned flaws in the impugned judgment and order.
      Since the parties are before the High Court, it is necessary to ensure
that the legal representatives of the deceased-Respondent No.2 herein are
brought on record (R-4 before the High court) by the first respondent herein
who was the appellant in the High court by filing the necessary applications
so as to bring his legal repres entatives on record and thereafter to dispose
of the Regular Second Appeal in accordance with law.
      Appeals are allowed and disposed of in the aforesaid terms.
      No costs.
     It is needless to observe that with the cooperation of the learned
counsel for respective parties, the Regular Second Appeal shall be disposed
of expeditiously.
      Pending application(s), if any, shall stand disposed of.


Headnotes prepared by:                                           Appeals allowed.
Divya Pandey