Case: Vijay Arjun Bhagat and Ors Vs. Nana Laxman Tapkire and Ors

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."15. 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 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 the 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 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 (See C.A. Nos. 9118-9119 of 2010 titled Surat Singh (Dead) v. Siri Bhagwan and Ors. decided on 19.02.2018).16. Adverting to the facts of the case at hand, we find that the High Court on 30.11.2002 admitted the second appeal and framed six substantial questions of law quoted supra as required Under Sub-sections (1) and (4) of Section 100 of the Code which, according to the High Court, arose in the second appeal.17. The High Court was, therefore, required to decide the second appeal only on the six formulated substantial questions of law as provided Under Sub-section (5) of Section 100 of the Code.18. We, however, find that the High Court instead of deciding the second appeal on these six substantial questions of law framed at the time of admission allowed the appeal on two additional substantial questions of law (see Para 10 of the impugned judgment) which were neither framed by the High Court at the time of admission of the second appeal on 30.11.2002 and nor at the time of hearing the second appeal.19. In other words, the High Court allowed the appeal on the two questions, which were framed in the impugned judgment only. These two questions read as under:"In S.A. No. 274/2002, following substantial questions of law arise:(i) Whether the Civil Court has jurisdiction to decide the question whether a particular property is that of a Public Trust or that it is not a property of the Public Trust and belongs to individual claimant?(ii) Whether the suit for declaration that the properties were not of the Public Trust was barred by limitation and, therefore, the impugned judgment of the first appellate Court deserves interference?"20. In our considered opinion, the High Court, therefore, committed two jurisdictional errors while deciding the second appeal.21. First, though it rightly framed six substantial questions of law at the time of admission of the appeal on 30.11.2002 as arising in the case but erred in not answering these questions.22. As mentioned above, the High Court had the jurisdiction to decide the second appeal only on the six substantial questions of law framed at the time of admitting the appeal. In other words, the jurisdiction of the High Court to decide the second appeal was confined only to six questions framed and not beyond it.23. Second, the High Court though had the jurisdiction to frame additional question(s) by taking recourse to proviso to Sub-section (5) of Section 100 of the Code but it was subject to fulfilling the three conditions, first "such questions should arise in the appeal", second, "assign the reasons for framing the additional questions" and third, "frame the questions at the time of hearing the appeal".24. In this case, the High Court committed an error because it framed two additional questions in the judgment itself.25. This procedure adopted by the High Court while deciding the second appeal caused prejudice to the rights of the parties because the parties, especially the Appellants herein, who suffered the adverse order, had no knowledge about framing of the two additional questions inasmuch as they were deprived of the opportunity to address the Court on the two additional questions on which the impugned judgment was founded.26. Learned Counsel for the Respondents, however, made sincere efforts to persuade the Court to uphold the impugned judgment on merits but in the light of what we have held above, it is not possible to accept the submissions of the learned Counsel for the Respondents much less the submissions urged on the merits of the controversy.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. Having heard the learnedfor the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned judgment and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law.12. In our considered view, the need to remand the case to the High Court has occasioned because the High Court while deciding and eventually allowing the second appeal did not follow the mandatory procedure prescribedSection 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as. In other words, we find that the manner in which the High Court proceeded to decide the second appeal did not appear to be in conformity with the mandatory procedure prescribedSection 100 of the Code.16. Adverting to the facts of the case at hand, we find that the High Court on 30.11.2002 admitted the second appeal and framed six substantial questions of law quoted supra as requireds (1) and (4) of Section 100 of the Code which, according to the High Court, arose in the second appeal.17. The High Court was, therefore, required to decide the second appeal only on the six formulated substantial questions of law as providedWe, however, find that the High Court instead of deciding the second appeal on these six substantial questions of law framed at the time of admission allowed the appeal on two additional substantial questions of law (see Para 10 of the impugned judgment) which were neither framed by the High Court at the time of admission of the second appeal on 30.11.2002 and nor at the time of hearing the second appeal.19. In other words, the High Court allowed the appeal on the two questions, which were framed in the impugned judgment only. These two questions read as2, following substantial questions of law arise:(i) Whether the Civil Court has jurisdiction to decide the question whether a particular property is that of a Public Trust or that it is not a property of the Public Trust and belongs to individual claimant?(ii) Whether the suit for declaration that the properties were not of the Public Trust was barred by limitation and, therefore, the impugned judgment of the first appellate Court deservesIn our considered opinion, the High Court, therefore, committed two jurisdictional errors while deciding the second appeal.21. First, though it rightly framed six substantial questions of law at the time of admission of the appeal on 30.11.2002 as arising in the case but erred in not answering these questions.22. As mentioned above, the High Court had the jurisdiction to decide the second appeal only on the six substantial questions of law framed at the time of admitting the appeal. In other words, the jurisdiction of the High Court to decide the second appeal was confined only to six questions framed and not beyond it.23. Second, the High Court though had the jurisdiction to frame additional question(s) by taking recourse to proviso toof Section 100 of the Code but it was subject to fulfilling the three conditions, first "such questions should arise in the appeal", second, "assign the reasons for framing the additional questions" and third, "frame the questions at the time of hearing the appeal".24. In this case, the High Court committed an error because it framed two additional questions in the judgment itself.25. This procedure adopted by the High Court while deciding the second appeal caused prejudice to the rights of the parties because the parties, especially theherein, who suffered the adverse order, had no knowledge about framing of the two additional questions inasmuch as they were deprived of the opportunity to address the Court on the two additional questions on which the impugned judgment was founded.26. Learnedts, however, made sincere efforts to persuade the Court to uphold the impugned judgment on merits but in the light of what we have held above, it is not possible to accept the submissions of the learnednts much less the submissions urged on the merits of the controversy.