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sub-section (4) of Section 100 of CPC – framing of substantial question of law at alter stage and decide the matter with out giving an opportunity to other side to hear – is the judgement of High court is liable to be set aside – Apex court held that we are of the opinion that substantial question of law can be formulated at the initial stage and in some exceptional cases, at a later point of time, even at the time of argument stage such substantial question of law can be formulated provided the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet out the point. Furthermore, the judgment of the High Court should only be set aside on the ground of non-compliance with sub-section (4) of Section 100 of CPC, if some prejudice has been caused to the appellants before us by not formulating such a substantial question of law.= Arsad Sk. & Anr. .… Appellants Vs. Bani Prosanna Kundu & Ors. ….Respondents = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41451

  sub-section (4) of Section 100 of CPC – framing of substantial question of law at alter stage and decide the matter with out giving an opportunity to other side to hear – is the judgement of High court is liable to be set aside –  Apex court held that we are of the opinion that  substantial  question of law can be formulated at the initial stage  and  in  some  exceptional cases, at a later point of time, even at the time of argument stage  such substantial question of law can be formulated provided the opposite party should be put on notice thereon and should be  given  a  fair  or  proper opportunity to meet out the point.  Furthermore, the judgment of the High Court should only be set aside on the ground of non-compliance with  sub-section (4) of Section 100 of CPC, if some prejudice has been  caused  to the appellants before us by not formulating such a  substantial  question of law.=

 

      In the present case it is true that the substantial question of law  was

   formulated by the High Court, though not at the admission stage but at  a

   later stage before the hearing, it does not follow  that  merely  because

   the “substantial question of law” was formulated by the High Court  at  a

   later stage, the judgment of the High Court becomes a nullity, liable  to

   be set aside by this Court on that ground alone  and  for  the  same  the

   appellants before us must also show prejudice to them  on  this  account.

   This Court in the case Kannan & Ors. v. V.S. Pandurangam[2]  even went on

   to hold  as under:

 

 

      “In our opinion, this Court should not take an over-technical view  of

      the matter to declare that every judgment of the High Court in  second

      appeal would be  illegal  and  void,  merely  because  no  substantial

      question of law was formulated  by  the  High  Court.  Such  an  over-

      technical view would only result in remitting the matter to  the  High

      Court for a fresh decision, and thereafter the matter may  again  some

      up before us in appeal.  The judiciary is already  over-burdened  with

      heavy arrears, and we should not take a view which would  add  to  the

      arrears.”

 

 

 

 

 

 

11. In light of the above, we are of the opinion that  substantial  question

   of law can be formulated at the initial stage  and  in  some  exceptional

   cases, at a later point of time, even at the time of argument stage  such

   substantial question of law can be formulated provided the opposite party

   should be put on notice thereon and should be  given  a  fair  or  proper

   opportunity to meet out the point.  Furthermore, the judgment of the High

   Court should only be set aside on the ground of non-compliance with  sub-

   section (4) of Section 100 of CPC, if some prejudice has been  caused  to

   the appellants before us by not formulating such a  substantial  question

   of law.

 

 

12. In the instant case, we have noticed that substantial  question  of  law

   was framed by the High Court  before  the  hearing  took  place  and  the

   appellants were put on notice and after  giving  an  opportunity  to  the

   appellants to meet the question, second appeal was decided  by  the  High

   Court. Therefore, in our opinion no prejudice  has  been  caused  to  the

   appellants.

 

 

13. In view of the discussion in the foregoing paragraphs, we find no  merit

   in this appeal and the same  is  dismissed  accordingly.  However,  there

   shall be no order as to costs.      

2014 ( April.Part ) judis.nic.in/supremecourt/filename=41451

CHANDRAMAULI KR. PRASAD, PINAKI CHANDRA GHOSE

IN THE SUPREME COURT OF INDIA Reportable

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4805 OF 2014
(Arising out of SLP (C) No.12773 of 2009)
Arsad Sk. & Anr. .… Appellants
Vs.

Bani Prosanna Kundu & Ors. ….Respondents

 

 

J U D G M E N T

 

 

Pinaki Chandra Ghose, J.
1. Leave granted.
2. This appeal is directed against the judgment and decree dated March 13,
2008 passed by the High Court of Calcutta in Second Appeal No.490 of 1993
by which the High Court while allowing the second appeal filed by the
respondents herein, set aside the concurrent judgments of the Trial Court
and the First Appellate Court.
3. The facts revealed in this case are that respondent Nos.1 to 6 herein
filed a suit in the Court of First Munsif, District Malda, praying, inter
alia, for a permanent injunction against the defendants (who are
appellants herein) by declaring the title over 27 decimals of land in
R.S. Plot No.95/425 situated in Mouza Mahesh Mati, P.S. Engrej Bazar in
District Malda, West Bengal. The Munsif Court, Malda, by its judgment and
order dated May 15, 1989 dismissed the said suit with the finding that
the plaintiffs did not have any right, title or interest in the schedule
property. Aggrieved by the dismissal of their suit, the respondents-
plaintiffs preferred first appeal, being O.C. Appeal No. 25 of 1989,
before the District Judge, Malda, wherein they specifically pleaded that
they owned and possessed the suit land within the boundary through
purchase and gifts. Simultaneously, further claimed the title to the
whole area by adverse possession. On July 12,1991, the Assistant District
Judge, Malda dismissed the First Appeal and upheld the findings of the
Trial Court. Aggrieved thereby the respondents-plaintiffs preferred a
second appeal before the Calcutta High Court stating, inter alia, that in
a dispute in a conveyance deed between the area and description of
boundary, the description of boundary would prevail and also pointed out
that the Court below had failed to consider the question of adverse
possession.
4. The High Court by its judgment and order dated March 13, 2008 set aside
the concurrent judgments of the Trial Court and the First Appellate Court
and allowed the second appeal filed by the respondents, holding that
where there is a dispute in a conveyance deed between the area and the
description of the boundary, the description of the boundary shall
prevail. Aggrieved by the said judgment and order passed by the High
Court, the appellants have come up before this Court by filing this
appeal.
5. Learned counsel appearing on behalf of the appellants submitted that the
impugned judgment passed by the High Court in second appeal suffers from
patent errors, both in law and in fact. It was submitted that the High
Court did not frame the substantial question of law at the time of
admission of the second appeal but formulated a question only in the
impugned judgment after the arguments had been concluded.
6. Per contra, the case of the respondents is based on the premise that
under the proviso to sub-Section (5) of Section 100 of the Code of Civil
Procedure, 1908 (hereinafter referred to as “CPC”), nothing 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 and the High Court has correctly proceeded to frame the question
of law set out in the impugned judgment. It is further submitted that the
question of law as set out by the High Court in the impugned judgment is
the appropriate and substantial question of law arising in the facts and
circumstances of this case and that the appeal should be dismissed as the
Second Appellate Court has merely set right the apparent perversity in
the judgments of the lower courts. It is submitted that the High Court
has correctly decided the matter on the basis of the question of law
framed in the impugned judgment by holding, inter alia, that where there
is a dispute between the area of the transferred land indicated in the
deed and the boundaries mentioned in the deed, boundaries mentioned in
the conveyance deed shall prevail.
7. In the present case, it appears from the impugned judgment that no
substantial question of law was formulated at the time of admission of
appeal and as such the question was understood to be regarding the
correctness of judgments of the lower courts. Furthermore, if any such
lapse in adhering to the procedure existed at the second appellate stage,
the counsel for the parties should have pointed out the same at that
stage only but they never did so. Moreover, it is clear that the High
Court basically framed the substantial question of law, though at a later
stage, and then answered it.
8. The general rule regarding an appeal under Section 100 of CPC is that
the jurisdiction of the High Court is limited to the substantial question
of law framed at the time of the admission of appeal or at a subsequent
later stage, if the High Court is satisfied that such a question of law
arises from the facts found by the Courts below. The same has been noted
by this Court in Manicka Poosali & Ors. v. Anjalai Ammal & Anr.[1].
9. In light of the well accepted principle that rules of procedure is a
handmaiden of justice, the omission of the Court in formulating the
‘substantial question of law’ (while admitting the appeal) does not
preclude the same from being heard as litigants should not be penalized
for an omission of the Court.
10. In the present case it is true that the substantial question of law was
formulated by the High Court, though not at the admission stage but at a
later stage before the hearing, it does not follow that merely because
the “substantial question of law” was formulated by the High Court at a
later stage, the judgment of the High Court becomes a nullity, liable to
be set aside by this Court on that ground alone and for the same the
appellants before us must also show prejudice to them on this account.
This Court in the case Kannan & Ors. v. V.S. Pandurangam[2] even went on
to hold as under:
“In our opinion, this Court should not take an over-technical view of
the matter to declare that every judgment of the High Court in second
appeal would be illegal and void, merely because no substantial
question of law was formulated by the High Court. Such an over-
technical view would only result in remitting the matter to the High
Court for a fresh decision, and thereafter the matter may again some
up before us in appeal. The judiciary is already over-burdened with
heavy arrears, and we should not take a view which would add to the
arrears.”

 

 
11. In light of the above, we are of the opinion that substantial question
of law can be formulated at the initial stage and in some exceptional
cases, at a later point of time, even at the time of argument stage such
substantial question of law can be formulated provided the opposite party
should be put on notice thereon and should be given a fair or proper
opportunity to meet out the point. Furthermore, the judgment of the High
Court should only be set aside on the ground of non-compliance with sub-
section (4) of Section 100 of CPC, if some prejudice has been caused to
the appellants before us by not formulating such a substantial question
of law.
12. In the instant case, we have noticed that substantial question of law
was framed by the High Court before the hearing took place and the
appellants were put on notice and after giving an opportunity to the
appellants to meet the question, second appeal was decided by the High
Court. Therefore, in our opinion no prejudice has been caused to the
appellants.
13. In view of the discussion in the foregoing paragraphs, we find no merit
in this appeal and the same is dismissed accordingly. However, there
shall be no order as to costs.

……..…..…………………..J.
(Chandramauli Kr. Prasad)
New Delhi;
………..…………………….J.
April 23, 2014. (Pinaki
Chandra Ghose)

 

 

 
———————–
[1] (2005) 10 SCC 38
[2] (2007) 15 SCC 157

 

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