Ishwar Chand Sharma vs Satendra Kumar & Another

Sharad Kumar Sharma, J

Section 100 of the Code of Civil Procedure starts with the saving clause, which specifically confines the jurisdiction of the High Court to interfere in the second appeal where the court admits the appeal after framing the substantial question of law. Section 100 of Code of Civil Procedure reads as under:

"100. Second appeal.-(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section 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."

While going through the judgments impugned in the second appeal before the High Court. This second appeal was admitted by this court on 19.05.2014 framing a question of law to be answered at the stage of final hearing of the second appeal and the following order was passed:

"Admit.

Call for the records.

List for hearing in its turn.

The principal question to be decided is, whether after an amendment to a pleading has been allowed without any condition, the statements made in the original pleading remain on record or not?

Stay."

The Appeal was admitted. Records were summoned. It was directed to be heard on the substantial question of law as framed therein by the coordinate Bench of this Court.

The Appeal remains pending till it came for consideration before another Coordinate Bench of this Court on 17.05.2018. The court after accepting the fact that the appeal stands admitted has held that:

"In view of this Court, the question posed at the time of admitting the appeal in the order of this Court dated 19.05.2014 the principal question as stated in the order is not a substantial question of law in view of Section 100 of C.P.C."

In view of this court, the question posed at the time of admission of the appeal has been held by the order dated 17.05.2018 as to be not a substantial question of law in view of Section 100 of Code of Civil Procedure. After taking the aforesaid view, as a matter of fact, the order of admission of appeal dated 19.05.2014 was splitted into two parts. The order framing of substantial question of law was held out to be not a substantial question involved in the second appeal, meaning thereby, this Court had held the questions as framed on 19.05.2014, in fact was not involved in the second appeal, whereas the admission of the appeal was sustained, because by the later part of the order dated 17.05.2018, the appeal was directed to be listed for arguments due to this direction in fact the second appeal is being listed for argument was after deciding the question framed at the admission stage, i.e. on 19.05.2014. In fact there would have been an order to list for argument without any further framing of the substantial question of law by the court, which was not done. Thus, as a matter of fact, no question remained to be argued under the scope of section 100 of the Code of Civil Procedure after order dated 17.05.2018.

This court is of the view that in view of the language of Section 100 of the Code of Civil Procedure the second appeal could have been only admitted when the case involves a substantial question, since by the order dated 17.05.2018 the court has answered the substantial question of law as framed on 19.05.2014, holding thereof in the opinion of the court that it was not a substantial question of law under Section 100 of the Code of Civil Procedure involved in the appeal. This Court is of the opinion that no substantial question was left thereafter the order dated 17.05.2018, to be argued at a later stage, as it was not even framed by the Court exercising its power under Section 100(4) of the Code of Civil Procedure. Thus the Appeal couldn't have been directed to be heard at a later stage without there being any substantial question of law left, which was required to be answered by the Court. But, for the reasons, which are not deciphered in the order dated 17.05.2018 still the Appeal was directed to be listed for hearing. Hearing of second appeal could have been only on a substantial question and when the substantial question itself was answered on 17.05.2018 there subsisted no substantial question of law as framed by the Court, which was required to be heard on the subsequent date fixed by the Court, and this Court is of the view that as soon as the Court has answered the substantial question framed on 19.05.2014 the Appeal itself should have been decided on 17.05.2018 or if the Court was of the view that there is other substantial question of law involved, apart then what was framed by the court's order dated 19.05.2014, then the Court should have framed the substantial question of law while exercising the powers under Section 100 sub-section (4) of the Code of Civil Procedure, which was not done in the present case.

Rather to the contrary the appellant had filed an Application No. 6550/2018 thereafter on 21.05.2018 praying for framing of substantial question of law invoking section 100(4) of C.P.C. The said application was rejected on the ground that the prerogative to invoke sub-section (4) of Section 100 for framing of a substantial question of law is exclusively vested with the Court while hearing the appeal finally on substantial question of law, which already stands framed at the time of admission and was under consideration at the time of hearing. Section 100(4) is quoted herein below:

"(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question."

Since there was no substantial question of law in existence after the order dated 17.05.2018, there remains no substantial question of law on which the appeal could have been directed to be heard. Thus the application was rejected on 19.06.2018 for the following reasons.

Taking advantage of the subsequent observation made in the order dated 17.05.2018 directing to hear the appeal after having already answered the substantial question of law already thus framed the appellant cannot be granted liberty to the appellant to reargue on the formulation of substantial question already stood answered by the Court.

Hence, this Court is of the view that the appeal already stood decided as soon as the Court has answered the substantial question by passing an order dated 17.05.2018 and it could have been fixed for hearing without framing of a substantial question. Thus, in this second appeal under the peculiar circumstances, as such nothing is left to be adjudicated by this Court on any substantial question and the same is accordingly dismissed.