Case: ARULMIGHU NELLUKADAI MARIAMMAN TIRUKKOIL Vs. TAMILARASI (DEAD) BY LRS

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.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 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 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, 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.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.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.?15. In the light of the foregoing discussion, we cannot sustain the impugned judgment which, in our view, is not in conformity with the mandatory requirements of Section 100 of the CPC and hence calls for interference in this appeal.

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

Explanation:
1[ds]11. The need to remand the case has occasioned because we find that the High Court failed to frame any substantial question of law arising in the case while admitting the appeal as required under Section 100 (4) of the Code of Civil Procedure, 1908 (hereinafter referred to as ?CPC?) and further failed to decide the appeal as provided under Section 100 (5) of the CPC.12. It is noticed that the High Court framed two substantial questions of law (see Para 7 of the impugned judgment) for the first time in the impugned judgment itself. In other words, what was required to be done by the High Court at the time of admission of the appeal to formulate a question of law after hearing the appellant as provided under Section 100 (4) of the CPC, but the High Court did it in the impugned judgment. Similarly, the High Court could have taken recourse to the powers conferred by proviso to Section 100 (5) of the CPC for framing any additional question of law at the time of final hearing of the appeal by assigning reasons for framing additional question, if it considered that any such question was involved. It was, however, not done. Instead, the High Court framed the questions for the first time while delivering the impugned judgment.13. In our considered opinion, the procedure and the manner in which the High Court decided the second appeal regardless of the fact whether it was allowed or dismissed cannot be countenanced. It is not in conformity with the mandatory procedure laid down in Section 100 of the CPC.In the light of the foregoing discussion, we cannot sustain the impugned judgment which, in our view, is not in conformity with the mandatory requirements of Section 100 of the CPC and hence calls for interference in this appeal.