Question: Once the High Court has already framed substantial questions of law in a second appeal under Section 100 of the Civil Procedure Code at the time of admission of such appeal, is it legally permissible for the High Court to frame additional / new substantial questions of law after admission of the appeal at the time of the final hearing of the case?
Answer: For answering this question, let me first reproduce Section 100 of the Civil Procedure Code (CPC):
“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.
(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.”
It is clear from the above provision that under subsection (4), the High Court is required to formulate the substantial questions of law in the second appeal if it is satisfied that such substantial questions of law are involved in the case (i.e., the second appeal).
Subsection (5) of Section 100 further provides that the High Court is required to hear the appeal on the substantial questions of law so formulated by it. However, the Proviso to this subsection permits the High Court to hear the appeal on any other substantial question of law which has not been formulated by it if it is satisfied that the case involves such other substantial question of law. For this purpose, the High Court is required to record the reasons.
The aforesaid legal provisions have been interpreted by the Supreme Court recently in the case of Vijay Arjun Bhagat v. Nana Laxman Tapkire, (2018) 6 SCC 727, wherein, it was held that:
“…The proviso to sub-section (5), however, also recognises 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.”
“…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”.”
In view of what has been held by the Supreme Court in the aforesaid judgement, it should be clear that it is possible for the High Court to frame additional / new substantial questions of law in a second appeal after its admission and at the time of hearing of the appeal. However, as held by the Supreme Court, it can be done subject to fulfilling the following three conditions:
(1) such questions should arise in the appeal;
(2) assign the reasons for framing the additional questions; and
(3) frame the questions at the time of hearing the appeal.
In the aforesaid case, on the facts of the case, it was held by the Supreme Court that the High Court committed an error because it framed two additional questions in the judgment itself, i.e., these additional conditions were not framed at the time of the hearing but they were framed directly in the judgement itself. The Supreme Court held that 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 as they were deprived of the opportunity to address the Court on the two additional questions on which the impugned judgment was founded.
Therefore, it should be clear that if any additional substantial questions of law are framed by the High Court at the time of hearing, parties to the second appeal should have knowledge about the same, and the parties should be given the opportunity to address the court on such additional questions of law.