2018 (5) TMI 1788 - SC - Indian Laws

Remand of the case to High Court - Section 100 of the Code of Civil Procedure, 1908 - whether the High Court was justified in allowing the appeal? - Held that - 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 - 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. 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 - Second, the High Court though had the jurisdiction to frame additional question(s) by taking recourse to proviso to subsection( 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 . The High Court committed an error because it framed two additional questions in the judgment itself. 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 - appeal allowed - The case is remanded to the High Court for deciding the appeal afresh on merits in accordance with law.

Summary

Issues:
Appeal against judgment by High Court of Judicature at Bombay - Interpretation of substantial questions of law under Section 100 of the Code of Civil Procedure - Jurisdictional errors in deciding the second appeal.

Analysis:
1. Background: The appeal before the Supreme Court challenged the judgment of the High Court of Judicature at Bombay, which set aside the judgment of the District Judge and confirmed the judgment of the Civil Judge in a civil suit regarding ancestral properties.

2. Substantial Questions of Law: The High Court admitted the second appeal based on six substantial questions of law, as required by Section 100 of the Code of Civil Procedure. However, the High Court erred in deciding the appeal on two additional substantial questions not framed at the time of admission or hearing.

3. Jurisdictional Errors: The Supreme Court found that the High Court committed jurisdictional errors by not answering the six questions framed at the time of admission and by framing two additional questions in the judgment itself. This procedural error deprived the parties of the opportunity to address the Court on these additional questions.

4. Remand to High Court: Due to the jurisdictional errors, the Supreme Court allowed the appeal, set aside the impugned judgment, and remanded the case to the High Court for fresh consideration on merits in accordance with the law. The Court refrained from delving into the merits of the case, leaving it for the High Court to decide.

5. Conclusion: The Supreme Court emphasized the importance of following the procedural requirements under Section 100 of the Code of Civil Procedure in deciding second appeals. The case was remanded to the High Court for a fresh decision, ensuring that the parties have the opportunity to address all substantial questions of law framed at the time of admission.

6. Expeditious Decision: Considering the age of the appeal, the Supreme Court directed the High Court to decide the case expeditiously once it is remanded for fresh consideration on merits.

This detailed analysis highlights the procedural errors in the High Court's decision and the Supreme Court's directive for a fresh consideration of the appeal based on the correctly framed substantial questions of law.