[2023] 12 S.C.R. 477 : 2023 INSC 848
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.]
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 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,
* Author
478 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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]
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.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.5780-5781 of
2023.
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.
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.
[2023] 12 S.C.R. 479
HEMAVATHI AND ORS. v.
V. HOMBEGOWDA AND ANR.
The Judgment of the Court was delivered by
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 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
480 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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.
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
[2023] 12 S.C.R. 481
HEMAVATHI AND ORS. v.
V. HOMBEGOWDA AND ANR.
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 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
482 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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.
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
[2023] 12 S.C.R. 483
HEMAVATHI AND ORS. v.
V. HOMBEGOWDA AND ANR.
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. 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
484 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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.
(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.
[2023] 12 S.C.R. 485
HEMAVATHI AND ORS. v.
V. HOMBEGOWDA AND ANR.
(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
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
486 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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 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
[2023] 12 S.C.R. 487
HEMAVATHI AND ORS. v.
V. HOMBEGOWDA AND ANR.
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: Divya Pandey Result of the case : Appeals allowed.
