VIJAY ARJUN BHAGAT & ORS.versusNANA LAXMAN TAPKIRE & ORS.

452                      [2018]REPORTS
               SUPREME COURT    4 S.C.R. 452              [2018] 4 S.C.R.


A                     VIJAY ARJUN BHAGAT & ORS.
                                       v.
                     NANA LAXMAN TAPKIRE & ORS.
                        (Civil Appeal No. 6272 of 2010)
B                                MAY 11, 2018
      [ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]
             Code of Civil Procedure, 1908 – s.100 – Substantial question
      of law – High Court instead of deciding the second appeal on the
      six substantial questions of law which were framed at the time of
C
      admission, allowed the appeal on two additional substantial
      questions of law which were neither framed by the High Court at
      the time of admission of the second appeal nor at the time of hearing
      the second appeal – Manner in which the High Court proceeded to
      decide the second appeal is in conformity with the mandatory
D     procedure prescribed under s.100 of the Code – Matter remitted to
      High Court for consideration afresh.
           Allowing the appeal and remitting the case to the High
      Court, the Court
            HELD: 1. The need to remand the case to the High Court
E     has occasioned because the High Court while deciding and
      eventually allowing the second appeal did not follow the mandatory
      procedure prescribed under Section 100 of the Code of Civil
      Procedure, 1908. Sub-section (1) of Section 100 says that the
      second appeal would be entertained by the High Court only if the
F     High Court is “satisfied” that the case involves a “substantial
      question of law”. Sub- section (3) makes it obligatory upon the
      appellant to precisely state in memo of appeal the “substantial
      question of law” involved in the appeal. Sub-section (4) provides
      that where the High Court is satisfied that any substantial question
      of law is involved in the case, it shall formulate that question. In
G     other words, once the High Court is satisfied after hearing the
      appellant or his counsel, as the case may be, 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
H
                                     452
VIJAY ARJUN BHAGAT & ORS. v. NANA LAXMAN TAPKIRE                        453
                     & ORS.

High Court. Sub-section (5) provides that the appeal shall be           A
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
                                                                        B
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         C
other words, the question is framed behind the back of the
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 proviso to sub-section (5),
however, also recognizes the power of the High Court to hear
                                                                        D
the appeal on any other substantial question of law which was not
initially framed by the High Court under sub-section (4). However,
this power can be exercised by the High Court only after assigning
the reasons for framing such additional question of law at the
time of hearing of the appeal. [Paras 12, 15][456-D-E; 457-D-H;
458-A-B]                                                                E
      2. The High Court committed two jurisdictional errors while
deciding the second appeal. First, it erred in not answering the
six substantial questions of law framed at the time of admission
of the appeal. The High Court had the jurisdiction to decide the
second appeal only on the six substantial questions of law framed       F
at the time of admitting the appeal. Second, the High Court
though had the jurisdiction to frame additional question(s) by
taking recourse to proviso to sub-section(5) of Section 100 of
the Code but it was subject to fulfilling the three conditions, first
“such questions should arise in the appeal”, second, “assign the
                                                                        G
reasons for framing the additional questions” and third, “frame
the questions at the time of hearing the appeal”. This procedure
adopted by the High Court while deciding the second appeal
caused prejudice to the rights of the parties because the parties,
especially the appellants, who suffered the adverse order, had no
knowledge about framing of the two additional questions inasmuch        H
454            SUPREME COURT REPORTS                       [2018] 4 S.C.R.


A     as they were deprived of the opportunity to address the Court on
      the two additional questions on which the impugned judgment
      was founded. [Paras 20-25][459-B-F]
            Surat Singh (Dead) v. Siri Bhagwan & Ors. 2018 (3)
            SCALE 246 – relied on.
B
                              Case Law Reference
            2018 (3) SCALE 246             relied on          Para 15
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6272
      of 2010.
C
            From the Judgment and Order dated 19.07.2007 of the High Court
      of Judicature at Bombay, Bench at Aurangabad in Second Appeal
      No. 274 of 2002.
            B. H. Marlapalle, Sr. Adv., Sanjay Kharde, Samrat Shinde,
D     Chandan Ramamurthi, Pravin Satale, Rajiv Shankar Dvivedi, Advs. for
      the Appellants.
           Ms. Asha Gopalan Nair, Sunil Kumar Verma, Ravindra Keshavrao
      Adsure, Atul Babasaheb Dakh, Dr. Kailash Chand, Advs. for the
      Respondents.
E
            The Judgment of the Court was delivered by
            ABHAY MANOHAR SAPRE, J. 1. This appeal is directed
      against the final judgment and order dated 19.07.2007 passed by the
      High Court of Judicature at Bombay, Bench at Aurangabad in Second
F     Appeal No.274 of 2002 whereby the Single Judge of the High Court
      allowed the appeal filed by respondent Nos.1 & 2 herein and set aside
      the judgment/order dated 16.01.2002 passed by the District Judge,
      Ahmednagar in R.C.A. No.21 of 2000 and confirmed the judgment dated
      10.12.1999 passed by the Civil Judge, Junior Division, Ahmednagar in
      R.C.S. No.600 of 1982.
G
            2. In order to appreciate the issues involved in the appeal, few
      relevant facts need to be mentioned hereinbelow.
            3. The appellants are the plaintiffs whereas the respondents are
      the defendants in a civil suit out of which this appeal arises.
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VIJAY ARJUN BHAGAT & ORS. v. NANA LAXMAN TAPKIRE                             455
         & ORS. [ABHAY MANOHAR SAPRE, J.]

       4. The appellants filed a civil suit (R.C.S. No. 600/1982) against    A
the respondents in the Court of Civil Judge, Junior Division, Ahmednagar
for declaration that, (1) the suit properties described in detail in the
schedule are ancestral properties of the plaintiffs (2) the plaintiffs are
the owners of the suit properties, and (3) the suit property described in
schedule 1(A) is not a Trust property and be declared as the plaintiffs’
                                                                             B
private property.
       5. Defendant No. 1 filed its written statement whereas defendant
Nos. 3 and 4 filed their joint written statement. The defendants raised
several objections about maintainability of the suit. They also denied
plaintiffs’ claim on merits.
                                                                             C
      6. The Trial Court framed issues. Parties adduced evidence in
support of their case. By judgment and decree dated 10.12.1999, the
Trial Judge though answered some issues in plaintiffs’ favour but
eventually dismissed the plaintiffs’ suit on merits.
      7. The plaintiffs felt aggrieved and filed First Appeal (R.C.A.        D
No.21/2000) in the Court of District Judge, Ahmednagar. By order dated
16.01.2002, the first Appellate Court allowed the appeal, set aside the
judgment and decree of the Trial Court and decreed the plaintiffs’ suit.
      8. Against the said judgment, Defendant Nos. 3 & 4 (respondent
Nos. 1 & 2 herein) filed appeal being Second Appeal No. 274/2002 in          E
the High Court of Bombay (Bench at Aurangabad). The High Court on
30.11.2002 admitted the second appeal on the following substantial
questions of law:
      “(A) Whether the first appellate court has misread the
      document of partition deed(Exh.81) and therefore the                   F
      finding in this behalf suffers from perversity.
      (B) Whether the first appellate Court has failed to consider
      the appropriate provisions of Order VII Rule 3 of C.P.C.
      (C) Whether the first appellate Court has erroneously relied
      upon Xerox copies of the mortgage deed which is not                    G
      registered.
      (D) Whether the first appellate Court has erroneously that
      the suit properties are the private properties of original
      plaintiffs.
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456             SUPREME COURT REPORTS                            [2018] 4 S.C.R.


A            (E) Whether the Civil Court has jurisdiction to decide the
             nature of the property which issue required to be dealt with
             by the Charity Commissioner.
             (F) Whether the suit is barred by limitation.”
              9. By impugned judgment, the Single Judge of the High Court
B     allowed the appeal and, in consequence, set aside the order passed by
      the District Judge in R.C.A. No.21 of 2000 and confirmed the judgment
      passed by the Civil Judge in R.C.S. No.600 of 1982 which has given
      rise to filing of the present appeal by way of special leave by the plaintiffs
      before this Court.
C           10. The short question, which arises for consideration in this appeal,
      is whether the High Court was justified in allowing the appeal.
             11. Having heard the learned counsel for the parties and on perusal
      of the record of the case, we are inclined to allow the appeal, set aside
      the impugned judgment and remand the case to the High Court for deciding
D     the appeal afresh on merits in accordance with law.
            12. In our considered view, the need to remand the case to the
      High Court has occasioned because the High Court while deciding and
      eventually allowing the second appeal did not follow the mandatory
      procedure prescribed under Section 100 of the Code of Civil Procedure,
E     1908 (hereinafter referred to as “the Code”).
             13. In other words, we find that the manner in which the High
      Court proceeded to decide the second appeal did not appear to be in
      conformity with the mandatory procedure prescribed under Section 100
      of the Code. It is clear from our reasoning given infra.
F
             14. Section 100 of the Code reads as under:
             “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
G            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.

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VIJAY ARJUN BHAGAT & ORS. v. NANA LAXMAN TAPKIRE                               457
         & ORS. [ABHAY MANOHAR SAPRE, J.]

      (3) In an appeal under this section, the memorandum of                   A
      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.                                                           B
      (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                C
      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.”
       15. Sub-section (1) of Section 100 says that the second appeal          D
would be entertained by the High Court only if the High Court is “satisfied”
that the case involves a “substantial question of law”. Sub- section (3)
makes it obligatory upon the appellant to precisely state in memo of
appeal the “substantial question of law” involved in the appeal. Sub-
section (4) provides that where the High Court is satisfied that any           E
substantial question of law is involved in the case, it shall formulate that
question. In other words, once the High Court is satisfied after hearing
the appellant or his counsel, as the case may be, 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)             F
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-      G
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

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458            SUPREME COURT REPORTS                           [2018] 4 S.C.R.


A     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
      the 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 proviso to sub-section (5), however, also recognizes
      the power of the High Court to hear the appeal on any other substantial
B
      question of law which was not initially framed by the High Court under
      sub-section (4). However, this power can be exercised by the High
      Court only after assigning the reasons for framing such additional question
      of law at the time of hearing of the appeal (See C.A. Nos.9118-9119
      of 2010 titled Surat Singh (Dead) vs. Siri Bhagwan & Ors. decided
C     on 19.02.2018).
            16. Adverting to the facts of the case at hand, we find that the
      High Court on 30.11.2002 admitted the second appeal and framed six
      substantial questions of law quoted supra as required under sub-sections
      (1) and (4) of Section 100 of the Code which, according to the High
D     Court, arose in the second appeal.
            17. The High Court was, therefore, required to decide the second
      appeal only on the six formulated substantial questions of law as provided
      under sub-section (5) of Section 100 of the Code.
            18. We, however, find that the High Court instead of deciding the
E     second appeal on these six substantial questions of law framed at the
      time of admission allowed the appeal on two additional substantial
      questions of law (see Para 10 of the impugned judgment) which were
      neither framed by the High Court at the time of admission of the second
      appeal on 30.11.2002 and nor at the time of hearing the second appeal.
F           19. In other words, the High Court allowed the appeal on the two
      questions, which were framed in the impugned judgment only. These
      two questions read as under:
            “In S.A. No.274/2002, following substantial questions of law
            arise:
G
            (i) Whether the Civil Court has jurisdiction to decide the
            question whether a particular property is that of a Public
            Trust or that it is not a property of the Public Trust and
            belongs to individual claimant?

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VIJAY ARJUN BHAGAT & ORS. v. NANA LAXMAN TAPKIRE                                 459
         & ORS. [ABHAY MANOHAR SAPRE, J.]

       (ii) Whether the suit for declaration that the properties                 A
       were not of the Public Trust was barred by limitation and,
       therefore, the impugned judgment of the first appellate
       Court deserves interference?”
      20. In our considered opinion, the High Court, therefore, committed
two jurisdictional errors while deciding the second appeal.                      B
       21. First, though it rightly framed six substantial questions of law
at the time of admission of the appeal on 30.11.2002 as arising in the
case but erred in not answering these questions.
       22. As mentioned above, the High Court had the jurisdiction to
decide the second appeal only on the six substantial questions of law            C
framed at the time of admitting the appeal. In other words, the jurisdiction
of the High Court to decide the second appeal was confined only to six
questions framed and not beyond it.
       23. Second, the High Court though had the jurisdiction to frame
additional question(s) by taking recourse to proviso to sub-section(5) of        D
Section 100 of the Code but it was subject to fulfilling the three conditions,
first “such questions should arise in the appeal”, second, “assign the
reasons for framing the additional questions” and third, “frame the
questions at the time of hearing the appeal”.
     24. In this case, the High Court committed an error because it
                                                                                 E
framed two additional questions in the judgment itself.
       25. This procedure adopted by the High Court while deciding the
second appeal caused prejudice to the rights of the parties because the
parties, especially the appellants herein, who suffered the adverse order,
had no knowledge about framing of the two additional questions inasmuch
as they were deprived of the opportunity to address the Court on the             F
two additional questions on which the impugned judgment was founded.
       26. Learned counsel for the respondents, however, made sincere
efforts to persuade the Court to uphold the impugned judgment on merits
but in the light of what we have held above, it is not possible to accept
the submissions of the learned counsel for the respondents much less             G
the submissions urged on the merits of the controversy.
       27. We, however, make it clear that having formed an opinion to
remand the case, we have refrained from applying our mind to the merits
of the case. It is now for the High Court to decide the appeal on merits.
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460              SUPREME COURT REPORTS                       [2018] 4 S.C.R.


A            28. In the light of the foregoing discussion, the appeal succeeds
      and is allowed. The impugned judgment is set aside. The case is remanded
      to the High Court for deciding the appeal afresh on merits in accordance
      with law without being influenced by any of our observations.
            29. Since the appeal is quite old, the same shall be decided
B     expeditiously.


      Devika Gujral                                             Appeal allowed.



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