[2023] 12 S.C.R. 488 : 2023 INSC 846
SURESH LATARUJI RAMTEKE
v.
SAU. SUMANBAI PANDURANG PETKAR & ORS.
(Civil Appeal No. 6070 of 2023)
SEPTEMBER 21, 2023
[B. R. GAVAI AND SANJAY KAROL*, JJ.]
Issue for consideration: Whether in the absence of affording
adequate opportunity of hearing to the parties on addressing
the framed substantial questions of law, the High Court could
have proceeded to decide the same in an appeal u/s.100, CPC
particularly, when the findings of fact rendered by two Courts, were
sought to be reversed; and further, whether without summoning and
perusing the trial record, findings of fact could have been reversed
by High Court in exercise of its appellate jurisdiction u/s.100, CPC.
Code of Civil Procedure, 1908 – s.100 – Scope:
Held: A Court sitting in second appellate jurisdiction is to frame
substantial question of law at the time of admission, save and except
in exceptional circumstances – Post such framing of questions,
the Court shall proceed to hear the parties on such questions
after giving them adequate time to meet and address them – It is
only after such hearing subsequent to the framing that a second
appeal shall come to be decided – Further, in ordinary course,
the High Court in such jurisdiction does not interfere with finding
of fact, however, if it does find any compelling reason to do so
as regard in law, it can do but only after perusing the records of
the Trial Court, on analysis of which the conclusion arrived at by
such a Court is sought to be upturned – s.100(5) suggests that
there is a gap between framing of the questions at admission and
hearing, as the proviso thereto gives an opportunity to the Court
to frame additional questions at the time of hearing, on which the
parties would have to be heard as well – Meaning thereby, that
the questions framed at the time of admission, at such point of
subsequent framing of questions are already known to the parties
and they have had time to prepare to address arguments on the
same – It is during the arguments that a further important issue
is discovered and a question in that regard is framed, with the
parties then being granted time to meet that question as well – In
* Author
[2023] 12 S.C.R. 489
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI PANDURANG
PETKAR & ORS.
the present case, the parties were not given the requisite time to
meet the questions framed by the Court – Questions of law were
framed on the second date of hearing, the parties were heard right
then and there, and the second appeal was disposed of with the
judgment being dictated and findings of fact reversed – Further,
impugned judgment overturned concurrent findings of fact in respect
of readiness and willingness on the part of plaintiff to perform the
contract, without pointing out the exceptional circumstance or
the perversity in the findings which were returned by the Courts
below – For the Court to have done so, the actual evidence which
was before the Courts below had to be called for – Impugned
Judgement set aside – Matter remanded to High Court. [Paras
21, 23-25, 27, 28]
Code of Civil Procedure, 1908 – s.100 – Second appeal –
Principles reiterated.
Panchugopal Barua v. Umesh Chandra Goswami and
Ors. (1997) 4 SCC 713:[1997] 2 SCR 12; Gurdev
Kaur v. Kaki (2007) 1 SCC 546:[2006] 1 Suppl. SCR
27; Randhir Kaur v. Prithvi Pal Singh & Ors. (2019)
17 SCC 71:[2019] 9 SCR 776; Santosh Hazari v.
Purushottam Tiwari (2001) 3 SCC 179:[2001] 1 SCR
948; Government of Kerala v. Joseph 2023 SCC
OnLine SC 961; Chandrabhan v. Saraswati 2022 SCC
OnLine SC 1273; Umerkhan v. Bimillabi (2011) 9 SCC
684:[2011] 9 SCR 551; Shiv Cotex v. Tirgun Auto Plast
Pvt Ltd. & Ors. (2011) 9 SCC 678:[2011] 10 SCR 787;
Gajaraba Bhikhubha Vadher v. Sumara Umar Amad
(2020) 11 SCC 114; Kichha Sugar Co. Ltd. v. Roofrite
(P) Ltd (2009) 16 SCC 280; U.R. Virupakshappa v.
Sarvamangala (2009) 2 SCC 177:[2008] 17 SCR 877;
Mehboob-Ur-Rehman v. Ahsanul Ghani (2019) 19 SCC
415; B.C. Shivashankara v. B.R. Nagaraj (2007) 15
SCC 387:[2007] 3 SCR 389; Govindbhai Chhotabhai
Patel v. Patel Ramanbhai Mathurbhai (2020) 16 SCC
255:[2019] 13 SCR 152; Kondiba Dagadu Kadam v.
Savitribai Sopan Gujar (1999) 3 SCC 722:[1999] 2
SCR 728; Dinesh Kumar v. Yusuf Ali (2010) 12 SCC
740:[2010] 7 SCR 222; Hamida v. Mohd. Khalil (2001)
5 SCC 30; Avtar Singh & Ors. v. Bimla Devi & Ors.
(2021) 13 SCC 816; Nazir Mohamed v. J. Kamala (2020)
490 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
19 SCC 57; Amar Singh v. Dalip Singh (2012) 13
SCC 405 – relied on.
Ravi Setia v. Madan Lal (2019) 9 SCC 381; Sukhbir
Singh v. Brij Pal Singh (1997) 2 SCC 200:[1996] 2
Suppl. SCR 863 – referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.6070 of 2023
From the Judgment and Order dated 30.09.2022 of the High Court of
Judicature at Bombay at Nagpur in SA No.324 of 2021.
Prafulla S. Kubalkar, Satyajit A Desai, Siddharth Gautam, Abhinav K.
Mutyalwar, Gajanan N Tirthkar, Vijay Raj Singh Chouhan, Yougant
Dhillon, Ms. Aishwarya Shinde, Ms. Anagha S. Desai, Advs. for the
Appellant.
Rajat Joseph, Hrishikesh Chitaley, Vijay Kari Singh, Advs. for the
Respondents.
The Judgment of the Court was delivered by
SANJAY KAROL J.
1. Leave granted.
2. The following questions arise for consideration of this Court:
2.1 Whether in the absence of affording adequate opportunity of
hearing to the parties on addressing the framed substantial
questions of law, the High Court could have proceeded to decide
the same in an appeal preferred under section 100 Code of Civil
Procedure (hereinafter “CPC”), particularly, when the findings
of fact rendered by two Courts, were sought to be reversed?
2.2 Whether in the absence of any trial record or without summoning
and perusing the trial record, findings of fact on the issue of
plaintiff’s readiness and willingness to execute the sale deed,
could have been reversed by the High Court in exercise of its
appellate jurisdiction under section 100 CPC?
3. Though, initially in the defendants’ appeal, which was listed firstly
on 26th April 2022, the High Court fixed the matter for preliminary
hearing on 29th September 2022, but adjourned it for the next day, i.e.,
30th September, 2022 when, after framing the substantial questions
[2023] 12 S.C.R. 491
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI PANDURANG
PETKAR & ORS.
of law, proceeded to hear the appeal and reversed the findings of
fact concurrently recorded by the two Courts in the plaintiff’s favour.
4. Hence, this appeal by special leave, seeks to assail a judgement
and order dated 30th September 2022 passed in Second Appeal
No.324/2021 by the High Court of Judicature at Bombay (Nagpur
Bench)1
whereby concurrent findings returned by the Courts below
vide judgement dated 3rd September, 20142
by the Civil Judge Senior
Division, Gadchiroli and vide judgement dated 1st October, 20213
by
the Principal District Judge, Gadchiroli, were overturned.
THE FACTUAL MATRIX
5. The respondent namely, Sumanbai Pandurang Petkar (defendant
in the original suit)4
had agreed to sell, for a consideration of ₹
6,60,000/- the property subject matter of dispute, i.e., 3 acres of land
to the appellant herein (plaintiff in the original suit)5
.
6. For transfer, the Divisional Commissioner, Nagpur Division, Nagpur,
accorded necessary permissions. Despite various attempts at
execution, the same did not take place, and as such the plaintiff
issued notices to that effect, which were served on the respondents
requiring them to be present at the office of the concerned authority
on 16th December, 2009 at 11:30 AM to get the deed executed. Such
notices remained not complied with as the defendants allegedly,
tried to evade coming to the office of the authority for such purpose.
7. It is as such that the case, subject matter of the present lis came to
be filed by the Plaintiff.
TRIAL COURT AND FIRST APPELLATE COURT
8. The Trial Court framed 5 issues. A tabular representation of the
issues, the corresponding findings and the reasons therefor, in short,
is as below: -
1 For Brevity, “Impugned Judgement”
2 Hereafter Referred to as “The Trial Court”
3 Hereinafter, “First Appellate Court”
4 Hereafter referred to as “the Defendants”
5 Hereafter, “the Plaintiff”
492 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
S.
No.
Issues Findings Reasons
1. Does plaintiff prove
that defendant no. 1
has entered into an
agreement of sale
s u i t l a n d S u r v e y
No. 236/2 area 1.19
HR of Navegaon in
favor of plaintiff for
c o n s i d e r a t i o n o f
Rs.6,60,00/-?
YES PW-1 Suresh and PW-2
Sudhakar have deposed
that an agreement was
entered into in respect
of the land and their
testimonies remain
unshaken. Even though
Ulhas Shriniwas Athaale
(PW-3) has not positively
identified the thumb
impression as that being
the same one affixed by
defendant no. 1, namely
Sumanbai that does not
establish that she had
not affixed her thumb
impressions.
2 Does plaintiff prove
that that on 29.03.2004
defendant no. 1has
executed the agreement
to sell in favour of the
plaintiff and the earnest
money of Rs.60,000/-
was paid by the plaintiff
to the defendant on the
same day?
YES It is clear that, as per
the answer to issue
one, the agreement was
entered into, and it stating
that Rs.60,000/- stands
received by the defendant.
Conclusively, said amount
was paid.
[2023] 12 S.C.R. 493
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI PANDURANG
PETKAR & ORS.
2A Whether the plaintiff
proves that he paid
R s . 1 , 0 0 , 0 0 0 o n
17.01.2005, another
Rs.1,00,000/- o n
07.05.2005, Rs.2,000/-
on 12.06.2008 and
Rs.8,000/- on 12.06.2008
to defendant no. 1
through her husband
defendant no. 2? If yes,
what is the legal effect
of this payment on the
rights of the parties?
NO
No document is placed on
record to show wherefrom
the said amounts were
withdrawn, nor was
the same paid in the
presence of any one of the
witnesses. The amount
paid on 07.05.2005 was
apparently paid by cheque
but the cheque number is
absent from the receipt.
No passbook or statement
is placed on record to
show the payment of such
amount. The handwriting
in which the endorsement
on the last page of the
agreement was made in
respect of receipt of such
amount is unclear.
3. Does the plaintiff prove
that he is ready and
willing to perform his
part of the contract?
YES Suresh’s (PW 1) testimony
that after receiving
requisite permission from
the authority the plaintiff
had asked the defendant
to execute the deed by
way of serving notice and
also the fact that he has
placed on record cheque
for Rs.3,90,000/-, leads
to the conclusion that he
has always been ready
and willing to perform his
part of the contract.
4. Is the plaintiff entitled
for specific relief as
sought for?
YES Consequent to the
findings in the affirmative
in question Nos.1, 2 and
3, the question No.4 is
also in the affirmative.
494 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
5. What order and decree? Suit is partly
decreed with
proportionate
costs. -----
9. The Plaintiff was, in view of the above, directed to deposit ₹ 6 lakh
with the Court within 15 days and upon such deposit, the defendant
was to necessarily execute the sale deed to be entitled to withdraw
the said amount.
10. The First Appellate Court in addition to the questions framed by the
Trial Court, further added two issues, i.e., (a) Whether the suit is
within limitation?; and (b) Whether the impugned judgement required
interference? While not disturbing the findings arrived at by the Trial
court, resultantly answering the second issue in the negative, also
held the suit filed to be within the period of limitation. The appeal
was, therefore, dismissed.
IMPUGNED JUDGMENT
11. In the Second Appeal, the Court framed four questions, substantial
in nature, and held that the concurrent findings as returned by the
trial courts were based on “complete misapplication of law” and
“erroneous consideration” and appreciation of the evidence led by
the parties. Reliance was placed on Ravi Setia v. Madan Lal6
to
state that in cases of perverse findings/complete misappropriation/
erroneous consideration of the evidence, or failure to consider
relevant evidence, a Court in Second Appeal could re-appreciate
the evidence. In view of the above, the judgement rendered by both
the Courts below was set aside and the plaintiff’s suit for specific
performance dismissed.
12. It has been urged before us, amongst other grounds, that the
judgement of the High Court is contrary to the law settled by various
judgments of this court as the substantial questions were framed
on the second date of hearing thereby contravening the provisions
of Section 100 CPC; the High Court ought not to ordinarily reverse
findings of fact, more so concurrent, returned by the trial court until
6 (2019) 9 SCC 381 Two Judge Bench
[2023] 12 S.C.R. 495
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI PANDURANG
PETKAR & ORS.
and unless findings returned are perverse, which clearly was not the
case; on the aspect of readiness and willingness, reliance was placed
on Sukhbir Singh v. Brij Pal Singh7 to submit that compliance with
those two factors of specific relief does not entail the carrying of
hard cash and instead it is the presence of the financial capacity to
do so. A cheque for ₹ 3,90,000/-8
has been placed on record which
was for the meeting which was slated to take place in the office of
the Sub-Registrar but in fact it was the Respondents who did not
attend; The High Court erred severely in overturning the findings of
fact, particularly in the absence of the record of the trial court.
OPINION OF THE COURT
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 fact that numerous
cases are filed before this Court which hinge on the application of
this provision, we find it necessary to reiterate the principles.
13.1 The requirement, most fundamental under this section is the
presence and framing of a “substantial question of law”. In
other words, the existence of such a question is sine qua non
for exercise of this jurisdiction.9
13.2 The jurisdiction under this section has been described by
this Court in Gurdev Kaur v. Kaki10 (Two-Judge Bench)
stating that post 1976 amendment, the scope of Section 100
CPC stands drastically curtailed and narrowed down to be
restrictive in nature. The High Court’s jurisdiction of interfering
under Section 100 CPC is only in a case where substantial
questions of law are involved, also clearly formulated/set out
in the memorandum of appeal. It has been observed that:
7 (1997) 2 SCC 200 Two Judge Bench
8 Exhibit 73, as recorded by the Trial Court in issue No.3 of its judgment.
9 Panchugopal Barua v. Umesh Chandra Goswami and Ors. (1997) 4 SCC 713 Two Judge Bench
10 (2007) 1 SCC 546 Two Judge Bench
496 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
“At the time of admission of the second appeal, it is the bounden
duty and obligation of the High Court to formulate substantial
questions of law and then only the High Court is permitted to
proceed with the case to decide those questions of law. The
language used in the amended section specifically incorporates
the words as “substantial question of law” which is indicative
of the legislative intention. It must be clearly understood that
the legislative intention was very clear that legislature never
wanted second appeal to become “third trial on facts” or “one
more dice in the gamble”. The effect of the amendment mainly,
according to the amended section, was:
(i) The High Court would be justified in admitting the second
appeal only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such
question;
(iii) A duty has been cast on the High Court to formulate
substantial question of law before hearing the appeal;
(iv) Another part of the section is that the appeal shall be
heard only on that question.”
Gurdev Kaur (supra) was referred to and relied upon in Randhir
Kaur v. Prithvi Pal Singh & Ors.11
13.3 In Santosh Hazari v. Purushottam Tiwari12 a Bench of
three Judges, held as under in regard to what constitutes a
substantial question of law:-
a) Not previously settled by law of land or a binding precedent.
b) Material bearing on the decision of case; and (c) New
point raised for the first time before the High Court is
not a question involved in the case unless it goes to
the root of the matter. Therefore, it will depend on facts
of each case.
11 (2019) 17 SCC 71; Two Judge Bench
12 (2001) 3 SCC 179 Three Judge Bench
[2023] 12 S.C.R. 497
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI PANDURANG
PETKAR & ORS.
Such principles stand followed in Government of Kerala v. Joseph13
and Chandrabhan v. Saraswati14.
13.4 Non-formulation of substantial question(s) of law renders
proceedings “patently illegal”. This Court’s decisions in
Umerkhan v. Bimillabi15 and Shiv Cotex v. Tirgun Auto
Plast Pvt Ltd. & Ors.16 indicate this position.
14. Substantial questions of law, as framed by the High Court must be
answered in light of the contentions raised therein.
14.1 If the Court is of the view that a question framed is to be
altered, deleted or a new question is to be added, then the
Court must hear the parties.
14.2 For both the above principles, reference may be made to
Gajaraba Bhikhubha Vadher v. Sumara Umar Amad17 where
the following principles were observed: -
a) The substantial question of law framed by the High Court
must be answered, with reasons. Disposing off the appeal
without answering the same cannot be justified.
b) If a need is felt to modify, alter or delete a question, a
hearing must be provided to the parties in respect thereof.
14.3 When the case is admitted, but upon hearing when it is found
that no substantial question of law arises for consideration,
reasons should be recorded in such dismissal.
15. In Kichha Sugar Co. Ltd. v. Roofrite (P) Ltd18 it was observed:
“4. Our attention is drawn by the learned counsel for the respondents
to the provisions of Section 100(5) of the Civil Procedure Code where
the respondent to a second appeal is permitted “to argue that the
case does not involve such question” i.e. the questions formulated
13 2023 SCC OnLine SC 961 Two Judge Bench
14 2022 SCC OnLine SC 1273 Two Judge Bench
15 (2011) 9 SCC 684 Two Judge Bench
16 (2011) 9 SCC 678 Two Judge Bench
17 (2020) 11 SCC 114 (Three Judge Bench)
18 (2009) 16 SCC 280 Three Judge Bench
498 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
earlier. No doubt, but then the order on the second appeal should
indicate, howsoever briefly, why the questions formulated at the
earlier stage had, at the stage of final hearing, been found to be no
questions of law.”
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. Virupakshappa v. Sarvamangala19 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, 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 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 Procedure were required to be met.”
16.1 This Court in Mehboob-Ur-Rehman v. Ahsanul Ghani20,
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.
19 (2009) 2 SCC 177 Two Judge Bench
20 (2019) 19 SCC 415 Two Judge Bench
[2023] 12 S.C.R. 499
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI PANDURANG
PETKAR & ORS.
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. Nagaraj21).
16.3 Wrong application of law laid down by the Privy Council, Federal
Court or the Supreme 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. Savitribai Sopan
Gujar23, observed-
“6. If the question of law termed as a substantial question 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 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 or, no
evidence. This Court in Dinesh Kumar v. Yusuf Ali24 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.
21 (2007) 15 SCC 387 Two Judge Bench
22 (2020) 16 SCC 255 Two Judge Bench
23 (1999) 3 SCC 722 Two Judge Bench
24 (2010) 12 SCC 740 Two Judge Bench
500 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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.
17. Jurisdiction under second appeal not to be exercised merely because
an alternate view is possible. It was observed in Hamida v. Mohd.
Khalil25
7. …The High Court, it is well settled, while exercising jurisdiction
under Section 100 CPC, cannot reverse the findings of the lower
appellate court on facts merely on the ground that on the facts found
by the lower appellate court another view was possible.”
This position was reiterated by Avtar Singh & Ors. v. Bimla Devi
& Ors.26
17.1 In aid of such a restricted application, an essential aspect in
ensuring that it does not acquire the nature of a “third appeal”
is the limited possibility of appreciation of evidence and
connectedly, the restriction on upturning concurrent findings
of fact. However, there are certain exceptions to the rule as
pointed out by this Court in Nazir Mohamed v. J. Kamala27,
as under:
“33.4. The general rule is, that the High Court will not interfere
with the concurrent findings of the courts below. But it is not an
absolute rule. Some of the well-recognised exceptions are where:
(i) the courts below have ignored material evidence or acted on no
evidence; (ii) the courts have drawn wrong inferences from proved
facts by applying the law erroneously; or (iii) the courts have wrongly
cast the burden of proof. A decision based on no evidence, does
not refer only to cases where there is a total dearth of evidence, but
also refers to case, where the evidence, taken as a whole, is not
reasonably capable of supporting the finding.”
25 (2001) 5 SCC 30 Two Judge Bench
26 (2021) 13 SCC 816 Two Judge Bench
27 (2020) 19 SCC 57 Two Judge Bench
[2023] 12 S.C.R. 501
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI PANDURANG
PETKAR & ORS.
17.2 The extent of the same may be underscored by the observation
that:
“32. In a second appeal, the jurisdiction of the High Court being
confined to substantial question of law, a finding of fact is not open
to challenge in second appeal, even if the appreciation of evidence
is palpably erroneous and the finding of fact incorrect as held in V.
Ramachandra Ayyar v. Ramalingam Chettiar [V. Ramachandra Ayyar
v. Ramalingam Chettiar, AIR 1963 SC 302] . An entirely new point,
raised for the first time, before the High Court, is not a question
involved in the case, unless it goes to the root of the matter.”
(Emphasis Supplied)
18. It is apparent from the above extracted principles and a perusal of
the respective judgments that the second appeal is envisioned, much
like any other process of the Court to be a step-by-step process,
each step further being a consequence of the previous one. Framing
of substantial questions at the stage of admission, the appeal then
being admitted for hearing, hearing thereon, and then a reasoned
judgment.
19. However, as a reading of the impugned judgment reveals, these
steps came to be followed, only partially, more so, ignoring the time
element, inherent therein.
20. As Sumara Umar Ahmad (supra), Kichha Sugar (supra) and
Virupakshappa (supra) and also the ingredients identified by Gurdev
Kaur (supra) show, hearing the parties, on all questions, framed at
the time of admission as also the one framed, added or altered, is
absolutely essential.
21. In the present case, the parties were not given the requisite time
to meet the questions framed by the Court. Section 100(5) CPC
suggests that there is a gap between framing of the questions at
admission and hearing, as the proviso thereto gives an opportunity
to the Court to frame additional questions at the time of hearing, on
which the parties would have to be heard as well. Meaning thereby,
that the questions framed at the time of admission, at such point of
subsequent framing of questions are already known to the parties
and they have had time to prepare to address arguments on the
502 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
same. It is during the arguments that a further important issue is
discovered and a question in that regard is framed, with the parties
then being granted time to meet that question as well.
22. Our view finds support in Amar Singh v. Dalip Singh28 wherein
this Court held: -
a) The purpose of framing of substantial question of law is to give
the parties an opportunity to come prepared on that particular
question.
b) When a substantial question of law is formulated by the Court
then the same must be made known to parties and thereafter
they have to be given an opportunity to advance arguments
thereon.
c) If any additional questions were framed at the time of hearing,
the Court must hear the parties on that question as well.
23. Here, the questions of law, were framed on the second date of
hearing, the parties were heard right then and there, and the second
appeal was disposed of with the judgment being dictated and findings
of fact reversed. That, as the above discussion points out, is not in
consonance with the manner set out for the disposal of a second
appeal.
24. The impugned judgment overturns concurrent findings of fact in
respect of readiness and willingness on the part of the plaintiff to
perform the contract, without pointing out the exceptional circumstance
or the perversity in the findings which were returned by the Courts
below.
25. For the Court to have done so, in accordance with law, the actual
evidence, which was before the Courts below, in our view, had to
be called for. This is so because, if the findings returned are to be
upturned on perversity, the same should unmistakably be reflected
from record. If this is not so done, the Court of first appeal being
the “final Court of fact”, would be reduced to a mere saying, of no
actual effect. After all, a second appeal is not a “third trial on facts”,
28 (2012) 13 SCC 405 Two Judge Bench
[2023] 12 S.C.R. 503
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI PANDURANG
PETKAR & ORS.
and so, for reappreciation of evidence to be justified, and for the
same to be required - as well as being demonstrably, at a different
threshold from merely, a “possible different view”, perversity or the
other conditions of “no evidence” or “inadmissible evidence” ought
to be urged, and subsequently, with the Court being satisfied on
the arguments advanced, of such a possibility, the Court would
then, proceed to call for the record. That is to say that accepting
the argument of perversity merely on the submissions made and
not having appreciated the record, would be unfair to the Court of
first appeal.
26. The haste with which the Court proceeded to dispose of the appeal
without proper and adequate opportunity to address arguments cannot
be appreciated. The governing statute lays considerable emphasis
on hearing the parties on all questions- and the same is reflected in
various pronouncements of this Court. The approach adopted by a
Court in disposing of such appeals must abide by the same.
27. The questions of law raised in the instant appeal are answered as
under :
27.1 A Court sitting in second appellate jurisdiction is to frame
substantial question of law at the time of admission, save
and except in exceptional circumstances. Post such framing
of questions the Court shall proceed to hear the parties on
such questions, i.e., after giving them adequate time to meet
and address them. It is only after such hearing subsequent
to the framing that a second appeal shall come to be decided.
27.2 In ordinary course, the High Court in such jurisdiction does
not interfere with finding of fact, however, if it does find any
compelling reason to do so as regard in law, it can do but
only after perusing the records of the Trial Court, on analysis
of which the conclusion arrived at by such a Court is sought
to be upturned. In other words, when overturning findings of
fact, the Court will be required to call for the records of the
Trial Court or if placed on record, peruse the same and only
then question the veracity of the conclusions drawn by the
Court below.
504 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
28. In view of the foregoing discussion we find it fit to remand the matter
to the High Court for consideration afresh in accordance with law.
Judgment and Order dated 30th September 2022 passed in Second
Appeal No.324/2021 by the High Court of Judicature at Bombay
(Nagpur Bench) is set aside and the case is restored to the file of
the High Court. Accordingly, the appeal is accepted and allowed
in such terms.
29. Pending application(s), if any, shall stand disposed of.
30. No costs.
Headnotes prepared by: Divya Pandey Result of the case : Appeal allowed.
