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Saturday, April 26, 2014

sub-section (4) of Section 100 of CPC - framing of substantial question of law at alter stage and decide the matter with out giving an opportunity to other side to hear - is the judgement of High court is liable to be set aside - Apex court held that we are of the opinion that substantial question of law can be formulated at the initial stage 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 out the point. Furthermore, the judgment of 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.= Arsad Sk. & Anr. .… Appellants Vs. Bani Prosanna Kundu & Ors. ....Respondents = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41451

  sub-section (4) of Section 100 of CPC - framing of substantial question of law at alter stage and decide the matter with out giving an opportunity to other side to hear - is the judgement of High court is liable to be set aside -  Apex court held that we are of the opinion that  substantial  question of law can be formulated at the initial stage  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 out the point.  Furthermore, the judgment of 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.=

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 adverse possession. On July 12,1991, the Assistant District
   Judge, Malda 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  between  the  area  and  description  of
   boundary, the description of boundary would prevail and  also pointed out
    that the Court below had failed to  consider  the  question  of  adverse
   possession.

      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 not follow  that  merely  because
   the “substantial question of law” 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 Court in the case Kannan & Ors. v. V.S. Pandurangam[2]  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  illegal  and  void,  merely  because  no  substantial
      question of law was formulated  by  the  High  Court.  Such  an  over-
      technical view would only result in remitting 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, 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  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 out the point.  Furthermore, the judgment of 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  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 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  accordingly.  However,  there
   shall be no order as to costs.      
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41451
CHANDRAMAULI KR. PRASAD, PINAKI CHANDRA GHOSE


    IN THE SUPREME COURT OF INDIA          Reportable

                        CIVIL APPELLATE JURISDICTION


                      CIVIL APPEAL NO. 4805    OF  2014
                  (Arising out of SLP (C) No.12773 of 2009)


Arsad Sk. & Anr.                                             .… Appellants


                                     Vs.

Bani Prosanna Kundu  & Ors.                                 ....Respondents





                               J U D G M E N T





Pinaki Chandra Ghose, J.


1. Leave granted.


2. This appeal is directed against the judgment and 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.


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 Malda, praying, inter
   alia,  for  a  permanent  injunction  against  the  defendants  (who  are
   appellants herein) by declaring the title over 27  decimals  of  land  in
   R.S. Plot No.95/425 situated in Mouza Mahesh Mati, P.S. Engrej  Bazar  in
   District Malda, West Bengal. The Munsif Court, Malda, 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  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, Malda, 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 adverse possession. On July 12,1991, the Assistant District
   Judge, Malda 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  between  the  area  and  description  of
   boundary, the description 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 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
   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 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.


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 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 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 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 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  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
   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 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].


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.


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 not follow  that  merely  because
   the “substantial question of law” 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 Court in the case Kannan & Ors. v. V.S. Pandurangam[2]  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  illegal  and  void,  merely  because  no  substantial
      question of law was formulated  by  the  High  Court.  Such  an  over-
      technical view would only result in remitting 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, 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  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 out the point.  Furthermore, the judgment of 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  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 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  accordingly.  However,  there
   shall be no order as to costs.

                                             ….....…..…………………..J.
                                             (Chandramauli Kr. Prasad)


New Delhi;
...........…………………….J.
April 23, 2014.                                               (Pinaki
Chandra  Ghose)








-----------------------
[1]    (2005) 10 SCC 38
[2]    (2007) 15 SCC 157

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