Smt. Dakshyani Amma & Ors. Vs. Vasudevan Namboodhiri & Ors.
EmailAppeal: Civil Appeal Nos. 12797-12798 of 1996
Petitioner: Smt. Dakshyani Amma & Ors.
Respondent: Vasudevan Namboodhiri & Ors.
Apeal: Civil Appeal Nos. 12797-12798 of 1996
Judges: U.C. BANERJEE & BRIJESH KUMAR, JJ.
Date of Judgment: Mar 22, 2001
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Sections 100, 103 – Second appeal – Requirements – High Court judgment not showing any formulation of substantial question of law – Need to formulate reiterated. Case law discussed. Held that judgment is set aside and matter remitted.
Held:
Section 100 C.P.C. has introduced a definite restriction on to the exercise of jurisdiction in the second appeal so far as the High Court is concerned. A second appeal would be in conformity with Section 100 CPC provided however the substantial question of law is framed and the court deals with the same. (Para 1)
The issue of perversity vis-a-vis the concept of justice in itself ought to be termed as a substantial question of law. The legality of finding of fact cannot but be termed to be a question of law. But there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with. Since the Amend-ment Act of 1976 question of entertaining a second appeal without there being a substantial question of law does not and cannot arise. (Paras 2, 6)
Cases Reffered:
1. Kulwant Kaur & Ors. v. Gurdial Singh Mann (dead) by LRs. & Ors. (JT 2001 (4) SC 158) (Para 2)
2. Hari Singh v. Kanhaiya Lal (JT 1999 (6) SC SC 489) (Para 5)
3. Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors. (JT 1997 (5) SC 202) (Para 4)
4. Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors. (JT 1997 (2) SC 554) (Para 4)
2. Hari Singh v. Kanhaiya Lal (JT 1999 (6) SC SC 489) (Para 5)
3. Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors. (JT 1997 (5) SC 202) (Para 4)
4. Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors. (JT 1997 (2) SC 554) (Para 4)
JUDGEMENT:
ORDER
1. A short while after the submissions commenced, it came to light that the High Court has not delved into the issues of substantial question of law at all in any part of the judgment. This Court for the last few years has been expressing its concern about the non-conformation of the requirements of the Code of Civil Procedure in particular Section 100. Admittedly, Section 100 C.P.C. has introduced a definite restriction on to the exer-cise of jurisdiction in the second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out the same but a second appeal would be in conformity with Section 100 CPC provid-ed however the substantial question of law is framed and the court deals with the same. Section 103 also lends credence to the essential requirement of framing and dealing with substantial question of law in second appeal.
2. This Court in a very recent judgment in Civil Appeal No. 1287 of 1990 Kulwant Kaur & Ors. v. Gurdial Singh Mann (dead) by LRs. & Ors. (JT 2001 (4) SC 158) pronounced on 21st March, 2001, has been pleased to record that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stand vitiated on a wrong test or on the basis of assumptions and conjectures and resultantly introduction of an element of perversity, the High Court would be within the jurisdiction to deal with the issue as the issue of perversity vis-a-vis the concept of justice in itself ought to be termed as a substantial question of law. This Court, however, was cautious enough to record that : “the requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, but there must be a defi-nite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands com-plied with”.
3. Incidentally be it noted that the amendment was effected in the year 1976 but still a large number of second appeals are being disposed of without conforming to the requirements of Section 100, CPC. We wish to emphasise that the requirement of Section 100 CPC is to be complied with more in its observance rather than in its breach which unfortunately has recently been the trend of the judgments.
4. In the case of Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors. (JT 1997 (5) SC 202), this Court followed and approved the decision of Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors. (JT 1997 (2) SC 554). In Purkait’s case (supra) this Court in Paragraph 10 observed as below:
“10. We would only add that (a) it is the duty cast upon the High Court to formulate the substantial question of law involved in the case even at the initial stage; and (b) that in (exceptional) cases, at a later point of time, when the court exercises its jurisdiction under the proviso to Sub-section (5) of Section 100 CPC in formulating the substantial question of law, the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the point. Proceeding to hear the appeal without formulating the substantial question of law in-volved in the appeal is illegal and is an abnegation or abdica-tion of the duty cast on court; and even after the formulation of the substantial question of law, if a fair or proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice. The above parameters within which the High Court has to exercise its jurisdiction under Section 100 CPC should always be borne in mind. We are sorry to state that the above aspects are seldom borne in mind in many cases and second appeals are entertained and/or disposed of, without conforming to the above discipline.”
5. The aforesaid decision has also been approved and followed by this Court in the case of Hari Singh v. Kanhaiya Lal (JT 1999 (6) SC SC 489).
6. Be it noticed here that prior to the amendment of Section 100 CPC though there was specific requirement but the amended re-quirement of substantial question of law was otherwise not thought of as a mandatory one but since the Amendment Act of 1976 question of entertaining a second appeal without there being a substantial question of law does not and cannot arise.
7. We may here place on record that on perusal of the High Court record we find that notice has in fact been issued in the second appeal but without, however, formulation of substantial question of law. We have been informed by both the learned Senior Advocates that in common practice notices do not contain the substantial question of law. Be it noted that compliance with the require-ments of Section 100 is a mandatory requirement of law and hence-forth the learned Chief Justice is requested to take appropriate step or steps in that regard. The above, however, is sent to the Chief Justice as a request for further steps to be taken in this matter.
8. In view of the above, the judgment of the High Court cannot be sustained and stands set aside and the appeals are remitted to the High Court for further consideration. We are not expressing any opinion as regards the merits of the case and the same would be dealt with in its entirety including the merits after formula-tion of the substantial question of law. The judgment of the High Court cannot be sustained and stands set aside. The appeals are disposed of accordingly. There shall be no order as to costs.
1. A short while after the submissions commenced, it came to light that the High Court has not delved into the issues of substantial question of law at all in any part of the judgment. This Court for the last few years has been expressing its concern about the non-conformation of the requirements of the Code of Civil Procedure in particular Section 100. Admittedly, Section 100 C.P.C. has introduced a definite restriction on to the exer-cise of jurisdiction in the second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out the same but a second appeal would be in conformity with Section 100 CPC provid-ed however the substantial question of law is framed and the court deals with the same. Section 103 also lends credence to the essential requirement of framing and dealing with substantial question of law in second appeal.
2. This Court in a very recent judgment in Civil Appeal No. 1287 of 1990 Kulwant Kaur & Ors. v. Gurdial Singh Mann (dead) by LRs. & Ors. (JT 2001 (4) SC 158) pronounced on 21st March, 2001, has been pleased to record that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stand vitiated on a wrong test or on the basis of assumptions and conjectures and resultantly introduction of an element of perversity, the High Court would be within the jurisdiction to deal with the issue as the issue of perversity vis-a-vis the concept of justice in itself ought to be termed as a substantial question of law. This Court, however, was cautious enough to record that : “the requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, but there must be a defi-nite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands com-plied with”.
3. Incidentally be it noted that the amendment was effected in the year 1976 but still a large number of second appeals are being disposed of without conforming to the requirements of Section 100, CPC. We wish to emphasise that the requirement of Section 100 CPC is to be complied with more in its observance rather than in its breach which unfortunately has recently been the trend of the judgments.
4. In the case of Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors. (JT 1997 (5) SC 202), this Court followed and approved the decision of Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors. (JT 1997 (2) SC 554). In Purkait’s case (supra) this Court in Paragraph 10 observed as below:
“10. We would only add that (a) it is the duty cast upon the High Court to formulate the substantial question of law involved in the case even at the initial stage; and (b) that in (exceptional) cases, at a later point of time, when the court exercises its jurisdiction under the proviso to Sub-section (5) of Section 100 CPC in formulating the substantial question of law, the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the point. Proceeding to hear the appeal without formulating the substantial question of law in-volved in the appeal is illegal and is an abnegation or abdica-tion of the duty cast on court; and even after the formulation of the substantial question of law, if a fair or proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice. The above parameters within which the High Court has to exercise its jurisdiction under Section 100 CPC should always be borne in mind. We are sorry to state that the above aspects are seldom borne in mind in many cases and second appeals are entertained and/or disposed of, without conforming to the above discipline.”
5. The aforesaid decision has also been approved and followed by this Court in the case of Hari Singh v. Kanhaiya Lal (JT 1999 (6) SC SC 489).
6. Be it noticed here that prior to the amendment of Section 100 CPC though there was specific requirement but the amended re-quirement of substantial question of law was otherwise not thought of as a mandatory one but since the Amendment Act of 1976 question of entertaining a second appeal without there being a substantial question of law does not and cannot arise.
7. We may here place on record that on perusal of the High Court record we find that notice has in fact been issued in the second appeal but without, however, formulation of substantial question of law. We have been informed by both the learned Senior Advocates that in common practice notices do not contain the substantial question of law. Be it noted that compliance with the require-ments of Section 100 is a mandatory requirement of law and hence-forth the learned Chief Justice is requested to take appropriate step or steps in that regard. The above, however, is sent to the Chief Justice as a request for further steps to be taken in this matter.
8. In view of the above, the judgment of the High Court cannot be sustained and stands set aside and the appeals are remitted to the High Court for further consideration. We are not expressing any opinion as regards the merits of the case and the same would be dealt with in its entirety including the merits after formula-tion of the substantial question of law. The judgment of the High Court cannot be sustained and stands set aside. The appeals are disposed of accordingly. There shall be no order as to costs.
