SURAT SINGH (DEAD) v. SIRI BHAGWAN & Ors.

1.3 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. The manner and the procedure adopted by the High Court while allowing the second appeal are against the procedure laid down in Section 100. [Paras 18, 19] [1071-B-E]

1.4 Sub-section (1) of Section 100 states 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. A B C D E F G H SURAT SINGH (DEAD) v. SIRI BHAGWAN & ORS. 1065 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 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. [Para 21] [1072-C-H]

1.5 On facts, it cannot be understood 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 Judge must have done it by taking recourse to sub-section (4) of Section 100 of the Code. 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. Such novel procedure adopted by the High Court, is wholly contrary to the scheme of Section 100 of the Code and renders the impugned judgment legally unsustainable. [Paras 22-24] [1073-A-C]

1.6 The High Court had no jurisdiction to frame the substantial question at the time of writing of its final judgment in A B C D E F G H 1066 SUPREME COURT REPORTS [2018] 1 S.C.R. 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. 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 final hearing. 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. [Paras 25-27] [1073-D-G]

1.7 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 would have no jurisdiction to decide such second appeal finally for want of any substantial question of law. [Para 28] [1073-H; 1074-A]

1.8 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, 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 A B C D E F G H SURAT SINGH (DEAD) v. SIRI BHAGWAN & ORS. 1067 after hearing the respondents under sub-section (5). 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. 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. [Paras 29-31] [1074-B-F]

1.9 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. The said principle applies to the instant case because, the High Court failed to follow the procedure prescribed under Section 100 while allowing the second appeal and thus committed a jurisdictional error calling for interference by this Court. [Paras 32-33] [1074-G-H; 1075-A]

1.10 The impugned judgment cannot be sustained as it does not conform to the requirements of Section 100 CPC. The impugned judgment is set aside. The case is remanded to the High Court for deciding the second appeal afresh on merits. The case is remanded due to the infirmity noticed in the manner in which the second appeal was decided. [Para 36, 37, 38] [1075-D- F]