Kalliani, K.T. and Others vs Thottiledath Balagopalan

V. Ramkumar, J.—The Registry has recorded an objection that this memorandum of Second Appeal is defective for the reason that grounds of appeal have not been set forth therein.

I heard Senior Advocate Sri A.P. Chandrasekharan, appearing for the Appellant.

The objection of the Registry is evidently in view of Sub-rule (2) of Rule 1 of Order XLI CPC which reads as follows:

Contents of memorandum.- The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.

By virtue of Order XLII, Rule 1 CPC the Rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees. It is in view of the applicability of the provisions of Order XLI CPC to Second Appeals that the Registry has raised the objection founded on Sub-rule (2) of Rule 1 of Order XLI Code of Civil Procedure.

I do not think that the objection raised by the Registry is well-founded. Unlike a first appeal to which the provisions of Order XLI CPC are mainly intended, a Second Appeal u/s 100 CPC as amended w.e.f. 1-2-1977 lies only on a substantial question of law to be precisely stated in the memorandum of appeal as provided under Sub-Section 3 of Section 100. Such a substantial question of law is to be formulated by the court while hearing the Second Appeal for admission under Rule 11 of Order XLI CPC as provided under Sub-Section 4 of Section 100 and Order XLII, Rule 2 Code of Civil Procedure. Section 100 CPC reads as follows:

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 substantial question of law, not formulated by it, if it is satisfied that the case involves such question.

Order XLII CPC reads as follows,-

Order XLII

Appeals from Appellate Decrees

Procedure. -The Rules of Order XLI as modified by Order XLI A shall apply, so far as may be, to appeals from appellate decrees.

Power of Court to direct that the appeal be heard on the question formulated by it.- At the time of making an order under Rule 11 of Order XLI for the hearing of a second appeal; the Court shall formulate the substantial question of law as required by Section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the Appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of Section 100.

Application of Rule 14 of Order XLI- Reference in Sub-rule (4) of Rule 14 of Order XLI to the Court of first instance shall, in the case of an appeal from an appellate decree or order, be construed as a reference to the Court to which the appeal was preferred from the original decree or order.

It can thus be seen that a Second Appeal lies only if the High Court is satisfied that the case involves a substantial question of law and not on the grounds, if any, set forth in the memorandum of appeal. At the time of hearing of the Second Appeal for admission under Order XLI, Rule 11 CPC also, the court will be justified in admitting the appeal only if it is satisfied that the appeal involves a substantial question of law and the substantial question of law has to be formulated by the Court. However, at the time of final hearing of the appeal, if the Court is of the view that any other substantial question of law not formulated by the court at the time of hearing for admission is also involved in the appeal, the Court can in view of the proviso to Section 100 (5) and 2 of Order XLII CPC grant leave to the Appellant to raise such other substantial question of law. The words "it shall not be open to the Appellant to urge any other ground in the appeal without the leave of the Court given in accordance with the provision of Section 100" occurring in Rule 2 of Order XLII CPC cannot be understood to mean that a memorandum of Second Appeal should set forth the grounds of objection. This is because the leave of the Court envisaged u/s 100 CPC is for hearing the appeal on a substantial question of law not formulated earlier and not for raising any new ground. Sub-Section 3 of Section 100 enjoins that the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. Thus, the Second Appeal can be heard, admitted and allowed only on a substantial question of law either formulated by the court at the time of hearing for admission or formulated by the Court at the time of final hearing after giving both sides an opportunity of being heard on such substantial question of law.

The provision made in Sub-rule (1) of Order XLII CPC also indicate that the Rules of Order XLI CPC have not been made applicable as they are or mutatis mutandis to a Second Appeal. The framers of the Code have carefully used the phraseology to indicate that the Rules of Order XLI CPC shall apply, so far as may be to Second Appeals. Thus, the failure to set forth the grounds of appeal in the memorandum of Second Appeal cannot render the memorandum of Second Appeal defective. It is enough if the memorandum of Second Appeal sets out the synopsis and narrates a statement of facts indicating as to how the substantial questions of law stated in the memorandum of appeal arise for consideration. It is, therefore not compulsory that a memorandum of Second Appeal should raise grounds of objection to the decree appealed from. The practice of raising grounds in a memorandum of Second Appeal has come to stay more out of a habit than a legal prescription. Old habits die hard. The objection raised by the Registry was not well taken. The Registry shall number the Second Appeal and send it for hearing on admission on 13-1-2009.