NDLI: Hemavathi and Ors. Vs. V. Hombegowda and Anr.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Code of Civil Procedure 1908
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Code of Civil Procedure, 1908 (5 of 1908)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Issue for consideration: High Court whether justifi ed in allowing Regular Second Appeal fi led u/s.100, Code of Civil Procedure, 1908 without framing the substantial question of law.Code of Civil Procedure, 1908 – s.100 – Second Appeal – Substantial question of law not framed – Impropriety:Held: First appellate court is the fi nal Court insofar as the question of facts are concerned and it is only when substantial questions of law would arise in a case that the High Court can entertain a Regular Second Appeal – If at the stage of admission such substantial questions of law are discerned by the High Court the same would have to be framed and the appeal(s) would have to be admitted – It is only thereafter that the parties have to be heard on the substantial questions of law framed by the High Court at the stage of admission – However, the CPC gives power to the High Court to frame additional substantial questions of law or to mould the substantial questions of law already framed on hearing the parties at the time of fi nal hearing of a Second Appeal – In the event the respondents before the High Court are on record even at the stage of admission of a Regular Second Appeal and the same is to be disposed of fi nally even at this stage substantial questions of law must be framed and answered before the Regular Second Appeal is admitted and disposed – In the present case, the same was not framed – Said error is compounded by the Judge stating in the order passed in the review petition that no such substantial question of law arose in the appeal(s) – If no substantial question of law arose in the case then the appeal could not have been entertained and ought to have been dismissed at the stage of admission – But on the other hand, in the absence of framing any substantial question of law the appeal was allowed, that too, at the stage of admission, without issuance of notice to the other respondents Nos.1, 3 and 4 and by hearing only counsel for respondent No.2 before the High Court who was on caveat – Impugned judgment and order passed in Regular Second Appeal as well as Review Petition set aside – Matters remanded to High Court. [Paras 13-16, 18]Code of Civil Procedure, 1908 – s.100 – Regular second appeal, practice to be followed – Law – Discussed.Practice and Procedure – First appellate court had not considered the Regular Appeal on merits, matter was remanded to trial court for fresh consideration – Legality: Held: If the High Court thought it fi t to condone the delay in fi ling the Regular Appeal then the matter had to be remanded to the fi rst appellate court to consider the Regular Appeal on merits and not just set aside the trial court decree and remand the case to the trial court for a fresh adjudication – Code of Civil Procedure, 1908. [Para 12]
Judge	Hon'ble Ms. Justice B.V. Nagarathna
Neutral Citation	2023 INSC 848
Petitioner	Hemavathi And Ors.
Respondent	V. Hombegowda And Anr.
SCR	[2023] 12 S.C.R. 477
Judgement Date	2023-09-11
Case Number	5780-5781

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