Himachal Pradesh High Court
Rajinder Kaur & Another vs Smt. Yashoda Devi & Ors on 19 October, 2023
Author: Virender Singh
Bench: Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMP No. 13476 of 2023 in RSA No. 114 of 2020 .
Reserved on: 4.10.2023 Decided on: 19.10.2023 Rajinder Kaur & another ...Applicants/Appellants of Versus Smt. Yashoda Devi & ors.
rt ...Non-applicants/Respondents ___________________________________________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting? yes ________________________________________________ For the Applicants: Mr. Rajneesh K. Lal, Advocate For the Respondents: Mr. Divya Raj Singh, Advocate, for Respondents/non-
applicants No. 1(a) and 1(b).
Mr. Sunil Mohan Goel, Advocate, for Respondents/non-
applicants No. 3 to 10.
::: Downloaded on - 19/10/2023 20:44:48 :::CIS 2Virender Singh, Judge Applicants/Appellants have filed the present .
application, under Section 100 (5) of the CPC, for framing additional substantial question of law, in the present appeal.
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2. According to the averments, as made in the application, the present Regular Second Appeal, has rt been admitted, on substantial questions of law, framed, at the time of admission.
3. As per averments, made in the application, during pendency of the Regular Second Appeal, learned counsel, appearing for the appellants/applicants, has inspected the record of the case and found that an application, under Order 41 Rule 27 CPC, which was moved on 10.12.2013, before the Court of Additional District Judge-III, Kangra at Dharamshala, District Kangra (hereinafter referred to as 'the First Appellate Court'), has not been decided. In this regard, zimini ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 3 order, passed by the learned First Appellate Court, on 3.6.2013, has also been reproduced, in the application.
4. On the basis of above facts, a prayer has been .
made to frame the following additional substantial question of law:
"Whether the application under Order 41 Rule 27 CPC having been filed by the appellants has not of been considered and decided by the learned District Judge, therefore, the jurisdiction has not been exercised properly and the judgment and rt decree passed by the learned District Judge are liable to be set aside."
5. When put to notice, reply to the application, although has not been filed, by learned counsel appearing for the non-applicants, but, the prayer, as made, in the application, has been opposed, by tooth and nail.
6. The perusal of the record shows that the appellants/applicants have preferred the present appeal, against the judgment and decree, dated 30.9.2019, passed by the learned First Appellate Court.
::: Downloaded on - 19/10/2023 20:44:48 :::CIS 47. The present appeal was admitted by this Court on 22.10.2021, on the following substantial question of law:
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"Whether both the learned Courts below misread and mis-appreciated oral and documentary evidence, more especially statements of PW1 to PW-10 and documents, Ext. PW1/A to Ext. PN, thereby initiating the of impugned judgments & decrees?"
8. Thereafter, the matter was adjourned for rt 1.12.2021, at the joint request of the learned counsel for the parties, for hearing.
9. Thereafter, on 11.8.2023, by way of CMP No. 10024 of 2023, respondents No. 3 to 10 have prayed for early hearing of the appeal, which was considered and allowed and the hearing of the appeal was ordered to be expedited.
10. On 1.9.2023, the matter was fixed for arguments, consequent to allowing the application for early hearing. On that date, the matter was adjourned, enabling learned counsel for the appellants, to file his ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 5 power of attorney, as he was engaged by the appellants, on 1.9.2023, itself.
11. The prayer, so made, in the application, has .
been sought to be allowed, on the basis of powers, of this Court, under proviso 100 (5) of the CPC.
12. To buttress his contention, the learned counsel of for the appellants/applicants has drawn the attention of this Court to the fact that application for additional rt evidence was moved before the learned First Appellate Court, by the applicants, way back on 26.11.2012, which was ordered to be taken on 10.12.2012.
13. On 3.6.2013, the learned First Appellate Court has passed the following order:
"Application under Order 41 Rule 27 CPC shall be decided at the time of final disposal of the appeal. Be put up for final arguments on 7.6.2013."
14. By way of application, under Order 41 Rule 27 CPC, certain documents were sought to be produced.
::: Downloaded on - 19/10/2023 20:44:48 :::CIS 615. The learned First Appellate Court has dismissed the appeal, preferred by the present appellants, against the judgment and decree, dated 20.2.2008, passed by .
the Court of learned Civil Judge, Sr. Division, Palampur (hereinafter referred to as 'the trial Court').
16. Hence, a prayer has been made to allow the of application.
17. learned counsel for the appellants has relied rt upon the decision of Hon'ble Supreme Court in Seetakathi Trust Madras vs. Krishnaveni, reported in (2022) 3 Supreme Court Cases 150, Govindaraju versus Mariamman, reported in (2005) 2 Supreme Court Cases 500, Vijay Arjun Bhagat & others versus Nana Laxman Tapkire & ors, reported in (2018) 6 Supreme Court Cases 727 and G.Shashikala (died) through Legal Representatives vs. G. Kalawati Bai (died) through Legal representatives & others, reported in (2019) 15 Supreme Court Cases 201 and a decision of Coordinate Bench of this Court in Mani Devi ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 7 Vs. Suresh Chand & ors, reported in Latest HLJ 2021 (HP) (2) 874.
18. Perusal of the grounds of appeal shows that no .
ground, with regard to the application, under Order 41 Rule 27 CPC, has been taken. Even, in the proposed substantial questions of law, which were formulated by of the appellants/applicants, alongwith grounds of appeal, there is no reference, with regard to the prayer, rt made in the application. The appeal was decided by the learned First Appellate Court, after hearing learned counsel, representing the parties. It has specifically been mentioned in para-48 of the judgment that no other point has been urged.
19. Even otherwise, the record is totally silent with regard to this fact, as any application for review has been moved by the appellants/applicants, before the learned First Appellate Court, with regarding to not deciding the application under Order 41 Rule 27 CPC.
This point has also not been raised in the grounds of appeal.
::: Downloaded on - 19/10/2023 20:44:48 :::CIS 820. Not deciding the application by the learned First Appellate Court, can be taken, as a ground, in the appeal. In this regard, provisions of Section 105 of the .
CPC come into play, which are reproduced as under:
"105. Other orders: (1) Save as otherwise expressly provided, no appeal shall lie from any Order made by a Court in the exercise of its original or appellate jurisdiction; but. where a of decree is appealed from, any error, defect or irregularity in any Order, affecting the decision of rtthe case, may be set forth as ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in sub-
section (1), where any party aggrieved by an order of remand, from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."
21. The applicants were not precluded from challenging the order, by virtue of which, application under Order 41 Rule 27 CPC, has not allegedly been decided, in the present appeal, had, in fact, the said application, been pressed by the appellants .
22. The provisions of Section 100 of CPC are reproduced as under:
::: Downloaded on - 19/10/2023 20:44:48 :::CIS 9"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.
of (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the rt 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."::: Downloaded on - 19/10/2023 20:44:48 :::CIS 10
23. The powers of this Court, under Section 100(5) of the CPC are governed by the conditions, mentioned in Section 100(3) and Section 100 (4) of the CPC.
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24. The legislature, in its wisdom, has used the word "The appeal on any other substantial question of law not formulated by it." Meaning thereby, the of substantial question of law is to be formulated by the Court, under the provisions of Section 100 (4) of the CPC.
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25. As per Section 100(3) of the CPC, the substantial question of law, shall be precisely stated in the memorandum of appeal. Admittedly, in this case, no such substantial question of law has been stated in memorandum of appeal.
26. In this regard, the provisions of Order 41 Rule 1 and Order 41 Rule 2 CPC, assume significance. The provisions of Order 41 Rule 1 and Order 41 Rule 2 CPC, are reproduced as under:
"1. Form of appeal. What to accompany memorandum. -(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 11 officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the 'Judgment). 2[Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed .
against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.] (2) Contents of memorandum. -The memorandum shall set forth, concisely and under distinct heads, of the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively."
rt (Self-emphasis supplied)
27. Sub-rule 2 of Rule 1 of the memorandum of appeal, shall contain the ground of objection, to the decree/appeal from under-distinct head. The appellant, can only, succeed according to the pleadings and proof.
28. In such situation, learned counsel for the appellants/applicants could not satisfy the judicial conscience of this Court as to how the above-
mentioned substantial question of law can be framed, especially when, this ground has not been mentioned in the memorandum of appeal.
::: Downloaded on - 19/10/2023 20:44:48 :::CIS 1229. While holding so, the view of this Court is being guided by the decision of a three-Judges' Bench of Hon'ble Supreme Court in Wali Singh versus Sohan .
Singh, reported in AIR 1954 SC 263. Para-6 of the judgment is reproduced as under:
"6. But we notice that the above aspect has not at all been raised in the Courts below. There is of no mentioned of it in the grounds of appeal to the High Court or in the case filed for the respondent in this Court. The above-mentioned facts were rt relied on in the Courts below only to make out pleas of acquiescence, estoppel or ratification which have been found against. Besides, it appears from the record that when the issues were framed by the trial Court, it was expressly recorded as follows in a statement signed by counsel for both the parties.
"There is no other point in dispute or any issue to be framed. We give it up if a mentioned of its is made in the pleadings."
In these circumstances it is too late to allow this point to be raised at this stage. Besides, the plaintiff has a subsisting title and his legal right as three-fourth sharer has been denied at least in these proceedings. There is, therefore, no purpose served by dismissing this suit and by driving the parties to another litigation."
::: Downloaded on - 19/10/2023 20:44:48 :::CIS 1330. So far as the case law, as relied upon by learned counsel for the applicants/appellants is concerned, with due respect to the case law, as cited by learned .
counsel for the applicants/appellants, the same, in no way helps the case of the applicants.
31. A Coordinate Bench of this Court, in RSA No. of 257 of 2000, titled as "Vidya Devi & anr. Vs. Ram Lal & ors", decided on 5.12.2014, in para-4 of the rt judgment, has held as under:
4. At the outset, it may be pointed out that though this Court has framed the aforesaid substantial question of law at the time of admission of the appeal, but from the records, it appears that such point was not even raised before the learned first Appellate Court and therefore, to my mind, the appellant is now precluded and estopped from raising such contention. In taking this view, I am supported by the judgment of Hon'ble Supreme Court in Santosh Hazari Vs. Purushotam Tiwari (deceased) by Lrs., (2001) 3 SCC 179:-
"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 14 material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it, are concerned. To be a question of law "involving in the case" there must be first a .
foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before of the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances rt of each case whether paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
32. If the facts and circumstances of the present case are seen, in view of the decision of Vidya Devi's case (supra), then, the application deserves to be dismissed.
33. Scope of provisions of Section 100 of the CPC has elaborately been discussed by the Hon'ble Supreme Court in Suresh Lataruji Ramteke Vs. Sau Sumanbai Pandurang Petkar & ors, reported in 2023 ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 15 (13) SCALE 70. Relevant paragraphs 13,16, 16.1 to 16.5 are reproduced as under:
13. The jurisprudence on Section 100, CPC is rich .
and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the of fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the rt principles.
16. Substantial questions should ordinarily, not be framed at a later stage. If done so, then parties must be given an opportunity to meet them. This Court in U.R. Virupakashappa vs. Sarvamangala" held:
"15.... It, furthermore, should not ordinarily frame a substantial question of law at a subsequent stage without assigning any reason therefor and without giving a reasonable opportunity of hearing to the respondents. [See Nune Prasad v. Nune Ramakrishna [(2008) 8 SCC 258 (2008) 10 Scale 523] ; Panchugopal Barua v. Umesh Chandra Goswami [(1997) 4 SCC 713] (SCC paras 8 and 9); and Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438] (SCC paras 10 and 12)]. 16. The High Court, ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 16 in this case, however, formulated a substantial question of law while dictating the judgment in open court. Before such a substantial question of law could be .
formulated, the parties should have been put to notice. They should have been given an opportunity to meet the same. Although the Court has the requisite jurisdiction to formulate a substantial question of law at a subsequent stage which was not formulated of at the time of admission of the second appeal but the requirements laid down in the proviso appended to Section 100 of the Code of Civil rt Procedure were required to be met. 16.1 This Court in Mehboob-Ur-Rehman v.
Ahsanul Ghani, observed in respect of application of Section 100(5) CPC as under:
a) It is not rule under proviso to sub-section (5) to hear any other substantial question of law irrespective of the question(s) formulated, so as to annul other requirements of S. 100, CPC.
b) Proviso to come in operation in exceptional cases where reasons are to be recorded by High Court.
16.2 It has further been held that the application of this section is only when some questions, substantial in law, already stand framed. (B.C. Shivashankara v. B.R. Nagaraj"¹). 16.3 Wrong application of law laid down by the Privy Council, Federal Court or the Supreme ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 17 Court, will not qualify for substantial question of law and neither wrong application of facts. 16.4 If on an issue, the trial court discusses the evidence but does not return a finding thereon, .
High Court in jurisdiction under Section 100, CPC may do so. Reference be made to Govindbhai Chhotabhai Patel v. Patel Ramanbhai Mathurbhai.22 This Court in Kondiba Dagadu Kadam v. Savitribal Sopan Gujar", observed-
"6. If the question of law termed as a substantial question of stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not rt be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law..."
16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible no evidence. This Court in Dinesh Kumar v. Yusuf A referring to various other cases held:
a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse.::: Downloaded on - 19/10/2023 20:44:48 :::CIS 18
b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity.
c) Scrutiny of evidence in second appeal is .
not prohibited but has to be exercised upon proper circumspection."
34. So far as decision of Hon'ble Apex Court in G. Shashikala (died) through Legal Representatives of vs. G. Kalawati Bai (died) through Legal representatives and others, reported in (2019) 15 rt SCC 201 is concerned, with due respect to the law laid down by Hon'ble Apex Court, the same, in no way, helps the case of the applicant, as the Hon'ble Apex Court, in said case, has summarized the principle of deciding application, under Order 41 Rule 27 CPC and Section 96 of the CPC.
35. Moreover, the dispute of Hon'ble Supreme Court, in the said case, was with regard to the fact that High Court has firstly allowed the application, under Order 41 Rule 27 CPC and thereafter, the appeals were ordered to be dismissed, even after permitting the ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 19 appellants to file additional evidence, in support of their case.
36. A three Judges' Bench of Hon'ble Supreme .
Court in Bhavanagar University versus Palitana Sugar Mill (P) Ltd. & others, (2003) 2 Supreme Court Cases 111, has held that a decision is an authority for of which it is decided and not what can logically be deduced therefrom. Relevant paragraph 59 of the rt judgment is reproduced as under:
"59. A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. [See Ram Rakhi v. Union of India, Delhi Admn. (NCT of Delhi) v. Manohar Lal, Haryana Financial Corpn.v. Jagdamba Oil Mills and Nalini Mahajan (Dr) v. Director of Income Tax (investigation).]"
37. Similar view has been taken by the Hon'ble Supreme Court in Bharat Petroleum Corpn.Ltd. & anr. Vs. N.R. Vairamani & anr., reported in (2004) 8 ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 20 SCC 579. Paras 9 to 11 of the judgment, are reproduced as under:
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"9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be rt construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."::: Downloaded on - 19/10/2023 20:44:48 :::CIS 21
10. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech.....is not to be treated as if it was a statute definition it will require qualification in new .
circumstances." Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
of "There is always peril in treating the words of a speech or judgment as though they are words in rt a legislative enactment, and it remembered that judicial utterances made in the is to be setting of the facts of a particular case."
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper."
38. The Hon'ble Supreme Court in Seethakathi Trust Madras vs. Krishnaveni, reported in (2022) 3 Supreme Court Cases 150, has held as under:
22. The first aspect to be taken note of is that the question of law ought to have been framed under Section 100 of the said Code. Even if the question of law had not been framed at the stage of admission, at least before the deciding the case ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 22 the said question of law ought to have been framed. We may refer usefully to the judicial view in this behalf in Surat Singh (Dead) v. Siri Bhagwan and Ors. 4, wherein this Court has held .
that:
"29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section 100. of It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under rt 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. Indeed, as mentioned (2018) 4 SCC 562 supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-
section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5)."
39. The learned counsel for the appellants/applicants could not satisfy the judicial conscience of this Court as to how the decision of Hon'ble Supreme Court in Seethakathi Trust ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 23 Madras's case (supra), is applicable in the facts and circumstances of the present case, as in this case, no such ground has been taken by the .
appellants/applicants, in the memorandum of appeal, with regard to non-decision of the application, under Order 41 Rule 27 of the CPC.
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40. As far as Hon'ble Apex Court in Govindaraju vs. Mariamman, reported in (2005) 2 SCC 500 is rt concerned, the same is not applicable to the facts and circumstances of the present case, as the substantial question of law, on the basis of memorandum of appeal, has already been framed by this Court on 22.10.2021.
41. The learned counsel for the applicants could not satisfy the judicial conscious of this Court as to how the decision of this case is applicable, to the present case, as no such ground has been taken in the memorandum of appeal.
42. So far as the decision of a Coordinate Bench of this Court in Mani Devi Vs. Suresh Chand, reported ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 24 in Latest HLJ (HP) 2021 (2) 874 is concerned, in para-
10 of the judgment, the Coordinate Bench of this Court has formulated the substantial questions of law, .
with regard to non-decision of the application, under Order 41 Rule 27 CPC, at the time of admission of the appeal, whereas nothing has been mentioned in the of grounds of appeal, regarding the aspect, upon which, a prayer has been made to formulate the additional rt substantial question of law
43. Hon'ble Apex Court in Vijay Arjun Bhagat & others vs. Nana Laxman Tapkire & others, reported in (2018) 6 SCC 727 has elaborately discussed the provisions of Section 100(5) of the CPC and held that rigors of provisions of Section 100(5) of the CPC, are subject to certain conditions. Relevant paragraphs 13, 19 and 20 are reproduced as under:
"13. Sub-section (1) of Section 100 says that the second appeal would be entertained by the High Court only if the High Court is "satisfied" that the case involves a "substantial question of law".
Subsection (3) makes it obligatory upon the appellant to precisely state in memo of appeal the ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 25 "substantial question of law" involved in the appeal. Subsection (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 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 of 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 rt 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 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 ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 26 proviso to sub-section (5), however, also recognizes the power of the High Court to hear 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 (See C.A. Nos.9118-9119 of 2010 titled Surat Singh (Dead) v. Siri Bhagwan & Ors. decided on of 19.02.2018)."
19. As mentioned above, the High Court had the rt jurisdiction to decide the second appeal only on the six substantial questions of law 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.
20. 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 reasons for framing the additional questions" and third, "frame the questions at the time of hearing the appeal".
(self-emphasis supplied) ::: Downloaded on - 19/10/2023 20:44:48 :::CIS 27
44. If the facts and circumstances of the present case are seen in the light of Vijay Arjun Bhagat's case (supra), the applicants have not been able to make out .
a case, in their favour, to allow the application. Above mentioned three conditions do not exist, in this case, as nothing is there, in the grounds of appeal, in this of regard.
45. Considering all these facts, there is no occasion rt for this Court to allow the application.
46. Consequently, the present application is dismissed.
(Virender Singh) Judge 19.10.2023 Kalpana ::: Downloaded on - 19/10/2023 20:44:48 :::CIS