VIJAY ARJUN BHAGAT & ORS. versus NANA LAXMAN TAPKIRE & ORS.
[2018] 4 S.C.R. 452, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
A
B
C
D
E
F
G
H
452
SUPREME COURT REPORTS
[2018] 4 S.C.R.
VIJAY ARJUN BHAGAT & ORS.
v.
NANA LAXMAN TAPKIRE & ORS.
(Civil Appeal No. 6272 of 2010)
MAY 11, 2018
[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]
Code of Civil Procedure, 1908 – s.100 – Substantial question
of law – High Court instead of deciding the second appeal on the
six substantial questions of law which were framed at the time of
admission, allowed the appeal on two additional substantial
questions of law which were neither framed by the High Court at
the time of admission of the second appeal nor at the time of hearing
the second appeal – Manner in which the High Court proceeded to
decide the second appeal is in conformity with the mandatory
procedure prescribed under s.100 of the Code – Matter remitted to
High Court for consideration afresh.
Allowing the appeal and remitting the case to the High
Court, the Court
HELD: 1. 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 prescribed under Section 100 of the Code of Civil
Procedure, 1908.  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
  [2018] 4 S.C.R. 452
452
A
B
C
D
E
F
G
H
453
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. [Paras 12, 15][456-D-E; 457-D-H;
458-A-B]
2. The High Court committed two jurisdictional errors while
deciding the second appeal. First, it erred in not answering the
six substantial questions of law framed at the time of admission
of the appeal. 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.  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”.  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, who suffered the adverse order, had no
knowledge about framing of the two additional questions inasmuch
VIJAY ARJUN BHAGAT & ORS. v. NANA LAXMAN TAPKIRE
& ORS.
A
B
C
D
E
F
G
H
454
SUPREME COURT REPORTS
[2018] 4 S.C.R.
as they were deprived of the opportunity to address the Court on
the two additional questions on which the impugned judgment
was founded. [Paras 20-25][459-B-F]
Surat Singh (Dead) v. Siri Bhagwan & Ors. 2018 (3)
SCALE 246 – relied on.
Case Law Reference
2018 (3) SCALE 246
       relied on
Para 15
CIVIL APPELLATE JURISDICTION :  Civil Appeal No. 6272
of 2010.
From the Judgment and Order dated 19.07.2007 of the High Court
of Judicature at Bombay, Bench at Aurangabad in Second Appeal
No. 274 of 2002.
B. H. Marlapalle, Sr. Adv., Sanjay Kharde, Samrat Shinde,
Chandan Ramamurthi, Pravin Satale, Rajiv Shankar Dvivedi, Advs. for
the Appellants.
Ms. Asha Gopalan Nair, Sunil Kumar Verma, Ravindra Keshavrao
Adsure, Atul Babasaheb Dakh, Dr. Kailash Chand, Advs. for the
Respondents.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J. 1. This appeal is directed
against the final judgment and order dated 19.07.2007 passed by the
High Court of Judicature at Bombay, Bench at Aurangabad in Second
Appeal No.274 of 2002 whereby the Single Judge of the High Court
allowed the appeal filed by respondent Nos.1 & 2 herein and set aside
the judgment/order dated 16.01.2002 passed by the District Judge,
Ahmednagar in R.C.A. No.21 of 2000 and confirmed the judgment dated
10.12.1999 passed by the Civil Judge, Junior Division, Ahmednagar in
R.C.S. No.600 of 1982.
2. In order to appreciate the issues involved in the appeal, few
relevant facts need to be mentioned hereinbelow.
3. The appellants are the plaintiffs whereas the respondents are
the defendants in a civil suit out of which this appeal arises.
A
B
C
D
E
F
G
H
455
4. The appellants filed a civil suit (R.C.S. No. 600/1982) against
the respondents in the Court of Civil Judge, Junior Division, Ahmednagar
for declaration that, (1) the suit properties described in detail in the
schedule are ancestral properties of the plaintiffs (2)  the plaintiffs are
the owners of the suit properties,  and (3) the suit property described in
schedule 1(A) is not a Trust property and be declared as the plaintiffs’
private property.
5. Defendant No. 1 filed its written statement whereas defendant
Nos. 3 and 4 filed their joint written statement. The defendants raised
several objections about maintainability of the suit. They also denied
plaintiffs’ claim on merits.
6. The Trial Court framed issues. Parties adduced evidence in
support of their case. By judgment and decree dated 10.12.1999, the
Trial Judge though answered some issues in plaintiffs’ favour but
eventually dismissed the plaintiffs’ suit on merits.
7. The plaintiffs felt aggrieved and filed First Appeal (R.C.A.
No.21/2000) in the Court of District Judge, Ahmednagar. By order dated
16.01.2002, the first Appellate Court allowed the appeal, set aside the
judgment and decree of the Trial Court and decreed the plaintiffs’ suit.
8. Against the said judgment, Defendant Nos. 3 & 4 (respondent
Nos. 1 & 2 herein) filed appeal being Second Appeal No. 274/2002 in
the High Court of Bombay (Bench at Aurangabad). The High Court on
30.11.2002 admitted the second appeal on the following
substantial
questions of law:
“(A) Whether the first appellate court has misread the
document of partition deed(Exh.81) and therefore the
finding in this behalf suffers from perversity.
(B) Whether the first appellate Court has failed to consider
the appropriate provisions of Order VII Rule 3 of C.P.C.
(C) Whether the first appellate Court has erroneously relied
upon Xerox copies of the mortgage deed which is not
registered.
(D) Whether the first appellate Court has erroneously that
the suit properties are the private properties of original
plaintiffs.
VIJAY ARJUN BHAGAT & ORS. v. NANA LAXMAN TAPKIRE
& ORS. [ABHAY MANOHAR SAPRE, J.]
A
B
C
D
E
F
G
H
456
SUPREME COURT REPORTS
[2018] 4 S.C.R.
(E) Whether the Civil Court has jurisdiction to decide the
nature of the property which issue required to be dealt with
by the Charity Commissioner.
(F) Whether the suit is barred by limitation.”
9. By impugned judgment, the Single Judge of the High Court
allowed the appeal and, in consequence, set aside the order passed by
the District Judge in R.C.A. No.21 of 2000 and confirmed the judgment
passed by the Civil Judge in R.C.S. No.600 of 1982  which has given
rise to filing of the present appeal by way of special leave by the plaintiffs
before this Court.
10. The short question, which arises for consideration in this appeal,
is whether the High Court was justified in allowing the appeal.
11. Having heard the learned counsel for 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 prescribed under Section 100 of the Code of Civil Procedure,
1908 (hereinafter referred to as “the Code”).
13. 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 prescribed under Section 100
of the Code.  It is clear from our reasoning given infra.
14. 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.
A
B
C
D
E
F
G
H
457
(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, 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
VIJAY ARJUN BHAGAT & ORS. v. NANA LAXMAN TAPKIRE
& ORS. [ABHAY MANOHAR SAPRE, J.]
A
B
C
D
E
F
G
H
458
SUPREME COURT REPORTS
[2018] 4 S.C.R.
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) vs. Siri Bhagwan & 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?
A
B
C
D
E
F
G
H
459
(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.
27. We, however, make it clear that having formed an opinion to
remand the case, we have refrained from applying our mind to the merits
of the case. It is now for the High Court to decide the appeal on merits.
VIJAY ARJUN BHAGAT & ORS. v. NANA LAXMAN TAPKIRE
& ORS. [ABHAY MANOHAR SAPRE, J.]

A
B
C
D
E
F
G
H
460
SUPREME COURT REPORTS
[2018] 4 S.C.R.
28.  In the light of the foregoing discussion, the appeal succeeds
and is allowed. The impugned judgment is set aside. The case is remanded
to the High Court for deciding the appeal afresh on merits in accordance
with law without being influenced by any of our observations.
29. Since the appeal is quite old, the same shall be decided
expeditiously.
Devika Gujral
Appeal allowed.