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        REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.9118-9119 OF 2010

Surat Singh (Dead)       ….Appellant(s)

VERSUS

Siri Bhagwan & Ors.       …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1. These  appeals  are  directed  against  the  final

judgment  and  order  dated  13.12.2006  passed  by

the High Court of Punjab & Haryana at Chandigarh

in  Civil  Regular  Second  Appeal  No.382  of  1992

whereby the High Court allowed the appeal filed by

respondent  No.1  herein,  set  aside  the  judgment

dated 13.11.1986 of the District Judge, Narnaul in

Civil  Appeal  No.83  of  1984  and  reversed  the

judgment  dated  16.05.1984  of  the  Trial  Court  in

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Civil  Suit  No.  315  of  1981.   By  order  dated

22.01.2007,  the  High  Court  also  dismissed  the

application  (C.M.  No.448-C  of  2007  in  RSA

No.382/1992)  filed  by  the  appellant  herein  for

recalling the judgment dated 13.12.2006.

2. In order to appreciate the short issue involved

in  the  appeals,  few  relevant  facts  need  mention

infra.

3. One Murti Devi (since dead) and her daughter

Smt.  Bholi  Devi  filed Civil  Suit  No.315/81 in  the

Court of Sub-Judge, IInd Class, Rewari against one

Siri  Bhagwan  (respondent  No.1  herein).  The  suit

was for  a declaration that the decree obtained by

Siri Bhagwan against Murti Devi on 11.11.1980 in

Civil  Suit  No.  638/1980  in  relation  to  the  land

measuring 37 Kanals 14 Marlas situated at Village

Alampur, Tahsil Rewari, District Mahendergarh be

declared  null  and  void  and  not  binding  on  the

plaintiffs  because  it  was  obtained  by  defendant

No.1-Siri  Bhagwan  by  playing  fraud  and

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misrepresentation  on  the  plaintiff-Murti  Devi  by

taking advantage of her illiteracy and poverty.  The

defendant No.1-Siri Bhagwan contested the suit.  

4. The  Trial  Court,  by  judgment/decree  dated

16.05.1984 in C.S.  No.315 of  1981 dismissed the

suit.  Felt  aggrieved,  the  plaintiff-Murti  Devi,  filed

first appeal (C.A. No.83 of 1984) before the District

Judge. By Judgment/decree dated 13.11.1986, the

first Appellate Court allowed the appeal, set aside

the judgment/decree of the Trial Court and decreed

the plaintiff's suit.  

5. Felt aggrieved, defendant No. 1- Siri Bhagwan

filed Second Appeal under Section 100 of the Code

of Civil Procedure, 1908 (hereinafter referred to as

“the Code”) in the High Court of Punjab & Haryana

out  of  which  these  appeals  arise.  During  the

pendency  of  the  second  appeal,  the  appellant

herein-Surat  Singh  purchased  the  suit  land  from

Murti  Devi  vide  registered  sale  deed  dated

30.07.1988 for Rs.80,000/-.

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6. The  appellant-Surat  Singh  then  filed  an

application under Order 1 Rule 10 read with Order

22 Rule 10 of the Code praying therein to become a

party  respondent  along  with  original

plaintiff/respondent No.1 in the second appeal as a

subsequent  purchaser  of  the  suit  land  from  the

plaintiff/respondent No.1, pending litigation.

7.  By  order  dated  04.01.1989,  Surat  Singh’s

application  was  allowed  and  he  was  allowed  to

become a party-respondent in the second appeal. In

the  meantime,  Murti  Devi  expired.  Since  one

daughter  of  Murti  Devi  was already  on record  as

plaintiff No.2 and the other daughter was on record

as proforma defendant No. 2, the Lis involved in the

appeal continued.  

8. By impugned judgment dated 13.12.2006, the

Single Judge of the High Court allowed the second

appeal,  set  aside the  judgment/decree of  the first

Appellate Court and restored that of the Trial Court,

which resulted in dismissal of the suit filed by Murti

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Devi  and  her  daughter.  Since  the  impugned

judgment  dated  13.12.2006  was  passed  without

hearing the appellant herein(respondent No.4 in the

High Court), he filed an application under Section

151 read with  Order  21 Rule  21 of  the  Code  for

recalling the judgment dated 13.12.2006.  By order

dated  22.01.2007,  the  High  Court  dismissed  the

application.  Aggrieved by both the judgment/order

dated  13.12.2006  and  22.01.2007,  the  appellant

has filed these appeals by way of  special  leave in

this Court.

9. Therefore, the short question, which arises for

consideration in these appeals,  is whether the High

Court  was justified in  allowing the  second appeal

filed by defendant No. 1-Siri Bhagwan  (respondent

No.1 herein) and thereby was justified in dismissing

the plaintiff's suit by restoring the judgment/decree

of the Trial Court.

10. Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

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are constrained to allow the appeals, set aside the

impugned  judgment  and  remand  the  case  to  the

High Court for deciding the second appeal afresh on

merits in accordance with law.

11. The  reasons  for  remanding  the  case  to  the

High  Court  are  more  than  one  as  set  out

hereinbelow.

12. First,  we find that the High Court allowed the

second  appeal  filed  by  respondent  No.  1  herein

without  hearing  respondent  No.4  before  it,  i.e.,

(appellant herein).  In other words, the High Court

allowed  the  second  appeal  after  hearing  the

appellant of second appeal only and not respondent

No.4 of the second appeal, who was absent at the

time of hearing.  

13. When respondent No. 4 (appellant herein) filed

an application under Section 151 read with Order

41 Rule 21 of the Code praying for an opportunity of

hearing, his application was dismissed by the High

Court.

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14. In  our  opinion,  the  High  Court  erred  in

deciding  the  second appeal  much less  allowing  it

without  hearing  the  contesting  respondent  No.4

(appellant herein) and also erred in dismissing his

application filed under Section 151 read with Order

41 Rule 21 of the Code for rehearing of the second

appeal.  

15. Having  regard  to  the  nature  of  controversy

involved in the case and further in the light of the

grounds on which the application for rehearing of

the  appeal  was  founded,  the  High  Court  should

have  granted  one  opportunity  of  hearing  to

respondent  No.  4  for  opposing  the  second appeal

and  for  that  purpose  should  have  restored  the

second  appeal  for  its  re-hearing  on  merits  in

accordance with law.

16. Second and more important, this Court cannot

countenance the manner in which the High Court

decided the second appeal on merits.

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17. We  find  that  the  judgment  of  the   first

Appellate  Court,  which  was   impugned  in  the

second  appeal,  was  delivered  on  13.11.1986

whereas the second appeal was registered in 1992

(S.A. No.382/92) and the impugned judgment was

delivered on 13.12.2006.  

18. The High Court as it seems did not frame any

substantial  question  of  law  while  admitting  the

appeal as per sub-section(4) of Section 100 though

it remained pending for a long time. However, the

High Court  proceeded to  allow the  second appeal

and while doing so framed the substantial question

of  law  in  the  concluding  para  of  the  impugned

judgment.  It reads as under:

“The substantial question of law would, therefore,  be  whether  the  finding  of  the learned  lower  appellate  court  terming  the transfer on the basis of a consent decree as a gift  in  the  absence  of  any  pleadings  was perverse or not?  The question of law stands answered in the foregoing discussion.

In  view of  this,  the  appeal  is  allowed and  the  judgment  of  the  learned  lower appellate  court  dated  13.11.1986  is  set aside.”      

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19. In our considered opinion, the manner and the

procedure adopted by the High Court while allowing

the  second appeal  are  against  the  procedure  laid

down in Section 100.  

20. Section 100 of the Code 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  formulated  by  it,  if  it  is satisfied  that  the  case  involves  such question.”

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21. Sub-section (1)  of  Section 100 says  that  the

second  appeal  would  be  entertained  by  the  High

Court only if the High Court is "satisfied" that the

case involves a "substantial question of law". Sub-

section (3) makes it obligatory upon the appellant to

precisely state in memo of appeal the "substantial

question of law" involved in the appeal. Sub-section

(4) provides that where the High Court is satisfied

that any substantial question of law is involved in

the case, it shall formulate that question. In other

words, once the High Court is satisfied after hearing

the appellant or his counsel, as the case may be,

that the appeal  involves a substantial  question of

law,  it  has  to  formulate  that  question  and  then

direct issuance of  notice  to the respondent of  the

memo  of  appeal  along  with  the  question  of  law

framed by the High Court. Sub-section (5) provides

that the appeal shall be heard only on the question

formulated by the High Court under sub-section (4).

In other words, the jurisdiction of the High Court to

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decide  the  second  appeal  is  confined  only  to  the

question  framed  by  the  High  Court  under

sub-section(4).   The  respondent,  however,  at  the

time of hearing of the appeal is given a right under

sub-section  (5)  to  raise  an  objection  that  the

question  framed  by  the  High  Court  under

sub-section (4) does not involve in the appeal. The

reason  for  giving  this  right  to  the  respondent  for

raising  such  objection  at  the  time  of  hearing  is

because the High Court frames the question at the

admission stage which is  prior  to issuance of  the

notice of appeal to the respondent.  In other words,

the  question  is  framed  behind  the  back  of

respondent  and,  therefore,  sub-section(5)  enables

him  to raise such objection at the time of hearing

that  the  question  framed  does  not  arise  in  the

appeal.   The  proviso  to  sub-section  (5),  however,

also recognizes the power of the High Court to hear

the appeal on any other substantial question of law

which was not  initially  framed by the High Court

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under sub-section (4).  However, this power can be

exercised by the High Court only after assigning the

reasons for framing such additional question of law

at the time of hearing of the appeal.

22. Adverting to the facts of this case at hand, we

are  at  a  loss  to  understand  as  to  how  the  High

Court  while  passing  a  final  judgment  in  its

concluding  para  could  frame  the  substantial

question of law for the first time and simultaneously

answered  the  said  question  in  appellant’s  favour.

Obviously, the learned Judge must have done it by

taking recourse to sub-section (4) of Section 100 of

the Code.

23. Here  is  the  case  where  the  High  Court  was

under  a  legal  obligation  to  frame  the  substantial

question at the time of admission of the appeal after

hearing  the  appellant  or/and  his  counsel  under

sub-section (4) of Section 100 of the Code, but the

High Court did it while passing the final judgment

in its concluding para.

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24. Such  novel  procedure  adopted  by  the  High

Court, in our considered opinion, is wholly contrary

to  the  scheme  of  Section  100  of  the  Code  and

renders  the  impugned  judgment  legally

unsustainable.

25. In our considered opinion, the High Court had

no jurisdiction to frame the substantial question at

the  time  of  writing  of  its  final  judgment  in  the

appeal  except  to  the  extent  permitted  under

sub-section (5). The procedure adopted by the High

Court,  apart  from it  being  against  the  scheme of

Section 100 of  the Code, also resulted in causing

prejudice  to  the  respondents  because  the

respondents  could  not  object  to  the  framing  of

substantial question of law. Indeed, the respondents

could not come to know on which question of law,

the appeal was admitted for final hearing.  

26. In other words, since the High Court failed to

frame  any  substantial  question  of  law  under

sub-section(4)  of  Section  100  at  the  time  of

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admission of the appeal, the respondents could not

come to know on which question of law, the appeal

was admitted for hearing.  

27. It cannot be disputed that sub-section (5) gives

the  respondents  a  right  to  know  on  which

substantial  question  of  law,  the  appeal  was

admitted for final hearing.  Sub-section (5) enables

the respondents to raise an objection at the time of

final hearing that the question of law framed at the

instance of the appellant does not really arise in the

case.   

28. Yet, the other reason is that the respondents

are only required to reply while opposing the second

appeal to the question formulated by the High Court

under sub-section (4)  and not  beyond that.  If  the

question of law is not framed under sub-section (4)

at the time of admission or before the final hearing

of  the  appeal,  there  remains  nothing  for  the

respondent to oppose the second appeal at the time

of  hearing.   In this  situation,  the High Court will

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have no jurisdiction to decide such second appeal

finally for want of any substantial question(s) of law.

29. The  scheme of  Section 100 is  that  once  the

High Court  is  satisfied that  the  appeal  involves a

substantial  question  of  law,  such  question  shall

have to be framed under sub-section(4) of Section

100.   It  is  the  framing  of  the  question  which

empowers  the  High  Court  to  finally  decide the

appeal in accordance with the procedure prescribed

under  sub-section  (5).   Both  the  requirements

prescribed in sub-sections (4) and (5) are, therefore,

mandatory and have to be followed in the manner

prescribed therein.  Indeed, as mentioned supra, the

jurisdiction  to  decide  the  second  appeal  finally

arises only after the substantial question of law is

framed under sub-section (4).   There may be a case

and indeed there are cases where even after framing

a  substantial  question  of  law,  the  same  can  be

answered  against  the  appellant.   It  is,  however,

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done  only  after  hearing  the  respondents  under

sub-section (5).

30. If,  however,  the  High Court  is  satisfied  after

hearing the appellant at the time of admission that

the appeal does not involve any substantial question

of law, then such appeal is liable to be dismissed in

limine without any notice to the respondents after

recording a finding in the dismissal order that the

appeal does not involve any substantial question of

law  within  the  meaning  of  sub-section  (4).   It  is

needless  to  say  that  for  passing  such  order  in

limine,  the  High  Court  is  required  to  assign  the

reasons in support of its conclusion.

31. It is, however, of no significance, whether the

respondent has appeared at the time of final hearing

of the appeal or not. The High Court, in any case,

has  to  proceed  in  accordance  with  the  procedure

prescribed under Section 100 while disposing of the

appeal,  whether  in  limine or  at  the  final  hearing

stage.

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32. It is a settled principle of rule of interpretation

that whenever a statute requires a particular act to

be done in a particular manner then such act has to

be  done  in  that  manner  only  and  in  no  other

manner. (See- Interpretation of Statutes by G.P.

Singh, IXth Edition page 347 and Baru Ram vs.

Parsanni (Smt.), AIR 1959 SC 93).

33. The aforesaid principle applies to the case at

hand because, as discussed above, the High Court

failed  to  follow  the  procedure  prescribed  under

Section 100 of the Code while allowing the second

appeal  and  thus  committed  a  jurisdictional  error

calling  for  interference  by  this  Court  in  the

impugned judgment.

34. While  construing  Section  100,  this  Court  in

the  case  of  Santosh  Hazari vs.  Purushottam

Tiwari  (Deceased)  by  L.Rs., (2001)  3  SCC  179

succinctly explained the scope, the jurisdiction and

what  constitutes  a  substantial  questions  of  law

under Section 100 of the Code.

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35. It is, therefore, the duty of the High Court to

always keep in mind the law laid down in Santosh

Hazari (supra) while formulating the question and

deciding the second appeal.

36. In  the  light  of  the  foregoing  discussion,  we

cannot  sustain the  impugned judgment which,  in

our view, does not conform to the requirements of

Section  100  of  the  Code  and  hence  calls  for

interference in this appeal.

37. The appeals thus deserve to be allowed. They

are accordingly allowed. The impugned judgment is

set aside. The case is remanded to the High Court

for deciding the second appeal afresh on merits. The

High  Court  will  now  frame  proper  substantial

question(s) of law after hearing the appellant and if

it finds that any substantial question(s) of law arises

in the case, it will formulate such question(s) and

accordingly  hear  the  appeal  on  the  question(s)

framed finally in accordance with law.

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38. We, however, make it clear that we have not

applied our mind to the merits of  the controversy

involved in the appeals, but only formed an opinion

to remand the case due to the infirmity noticed in

the  manner  in  which  the  second  appeal  was

decided. The High Court will, therefore, decide the

second  appeal  uninfluenced  by  any  of  our

observations made in this order.

39. Since the matter is quite old, we request the

High  Court  to  decide  the  second  appeal

expeditiously preferable within six months from the

date of receipt of this judgment.       

                  ………...................................J.

[R.K. AGRAWAL]             

                         …...……..................................J.

        [ABHAY MANOHAR SAPRE]

New Delhi; February 19, 2018