Second Appeal, After Its Admission With Formulation Of Substantial Question Of Law, Cannot Be Disposed Of Summarily: Supreme Court

A second appeal, after its admission with formulation of substantial question of law, cannot be disposed of summarily, the Supreme Court observed in an order passed last week.

The bench of Justices Vineet Saran and Dinesh Maheshwari observed that once a second appeal is admitted, on the High Court being satisfied that a substantial question of law is involved in the case and with formulation of that question, the appeal is required to be heard in terms of Order XLII of Code of Civil Procedure.

In this case, the High Court had admitted the second appeal by the defendant (substituted by his legal representatives) and framed substantial questions of law. Later, the same was dismissed.

In appeal, the defendant contended that after having admitted the second appeal and having formulated substantial questions of law, was not justified in deciding the same in a summary manner by merely observing that the findings of the First Appellate Court called for no interference.

Agreeing with this contention, the bench said that a summary disposal of the second appeal and that cannot be approved, because the second appeal had been admitted on specific questions.

"We are clearly of the view that the High Court, after having admitted the second appeal and having formulated substantial questions of law, could not have disposed of the same by only stating its satisfaction on the findings of the First Appellate Court without examining the relevant points arising from the submissions of the parties and without examining as to whether the First Appellate Court was justified in reversing the findings of the Trial Court.", the bench said agreeing with the defendant's contention.

The court said that under Section 100 CPC. admission of a second appeal while formulating substantial questions of law for consideration is a matter entirely different because at that threshold stage, the High Court would be examining as to whether the case involves any substantial question of law or not.

"However, once a second appeal is admitted, on the High Court being satisfied that a substantial question of law is 8 involved in the case and with formulation of that question, the appeal is required to be heard in terms of Order XLII CPC. A look at Order XLII CPC makes it clear that except for the limitations envisaged by Rule 2 thereof read with Section 100, the rules of Order XLI do apply, so far as may be, for the purpose of hearing of the second appeal, i.e., an appeal from appellate decree..Obviously, a second appeal, after its admission with formulation of substantial question of law, cannot be disposed of summarily. The Court has further power to hear the appeal on any other substantial question of law if not formulated earlier for reasons to be recorded. Of course, at the time of hearing, the respondent is entitled to argue that the case does not involve the question or questions so formulated but, interestingly, in the present case, we do not find any indication in the impugned judgment and order of the High Court if the respondent even argued that the case did not involve the formulated questions or any of them. It has also not been the conclusion by the High Court that the questions so formulated were not involved in the case. That being the position, in our view, it was required of the High Court to examine the matter in necessary details and then, to determine the substantial questions of law formulated in the case.", the bench said while allowing the appeal and remanding the case back to High Court.

Case: Ramdas Waydhan Gadlinge (Since Deceased) Vs. Gyanchand Nanuram Kriplani (Dead) [SLP(C) 2933/2017]
Coram: Justices Vineet Saran and Dinesh Maheshwari
Citation: LL 2021 SC 340

Click here to Read/Download Judgment

https://main.sci.gov.in/supremecourt/2016/34444/34444_2016_41_7_28881_Order_28-Jul-2021.pdf