In Second Appeal, High Court Must Frame Substantial Question Of Law At Admission Stage Itself Ordinarily: Supreme Court

The Supreme Court on Thursday (21.09.2023)held that High Courts while exercising their jurisdiction of Second Appeal under Section 100 of the Code of Civil Procedure, 1908 should ordinarily frame substantial questions at the stage of admission. However, if it is framed at a later stage, the Court must give parties adequate time to meet and address them before deciding the appeal. 

A bench of Justice BR Gavai and Justice Sanjay Karol was considering an appeal against an order passed in Second Appeal by the Nagpur Bench of the Bombay High Court. After framing substantial questions of law, the Court proceeded to hear the appeal on the same day and reversed the findings of fact concurrently recorded by the both courts below and dismissed the plaintiff’s suit for specific performance.

“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. “ the Apex Court pointed out, while remanding the order back to the High Court for fresh consideration.

The Court criticized the manner in which the appeal was disposed in haste without giving parties an adequate opportunity of hearing:

“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.” the Apex Court said.

The Court referred to a catena of judgments to hold that the second appeal is a step-­by-­step process, involving framing of substantial questions at the admission stage, the appeal will then be admitted for hearing, and after hearing a reasoned judgment is pronounced. However, in the case at hand, these steps were not followed properly, the Court observed.

The Apex Court observed that framing of a substantial question of law is essential for High Courts to exercise their jurisdiction of Second Appeal under Section 100 of the CPC. The Court made it clear that if such a question is altered, deleted or a new one is added, the Court must hear the parties before deciding the appeal.

“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" the Court observed.

The Apex Court observed that the parties were not given time to prepare and address arguments on the questions framed by the Court as required under Section 100 of the CPC.

“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 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.” the Court observed.

The Court also held that, only in exceptional circumstances can the High Court in a Second Appeal, interfere with a finding on fact. In such cases, the Court must do so only after going through the records of the Trial Court:

“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. “

In the case at hand, the High Court in Second Appeal overturned concurrent findings of fact without pointing out the exceptional circumstance or the perversity in the findings of the courts below, the Apex Court observed. The Court observed that finding on facts cannot be reversed, without appreciating the evidence on record, as done by the High Court in the said case:

“After all, a second appeal is not a “third trial on facts”, 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.”

The Apex Court accordingly set aside the judgment of the High Court passed in Second Appeal and remanded the matter to the High Court for fresh consideration.

Case Title: Suresh Lataruji Ramteke V. Sau. Sumanbai Pandurang Petkar, Civil Appeal No. 6070 Of 2023

Citation: 2023 LiveLaw (SC) 821

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