ARULMIGHU NELLUKADAI MARIAMMANversusTAMILARASI (DEAD) BY LRS.

                          [2019] 7 S.C.R. 361                             361


  ARULMIGHU NELLUKADAI MARIAMMAN TIRUKKOIL                                A
                                  v.
                 TAMILARASI (DEAD) BY LRS.
                   (Civil Appeal No. 4666 of 2019)
                            MAY 07, 2019                                  B
               [ABHAY MANOHAR SAPRE AND
                  DINESH MAHESHWARI, JJ.]
       Code of Civil Procedure, 1908 – s. 100 – Second appeal –
Appellant-Plaintiff filed a civil suit against the original respondent-   C
defendant for her eviction from the suit property – Trial court decreed
the suit – First appellate Court affirmed the judgment of the trial
court – However, in second appeal, the High Court set aside the
impugned order and dismissed the suit filed by the appellant – On
appeal, held: High Court failed to frame any substantial question
                                                                          D
of law arising in the case while admitting the appeal as required u/
s. 100(4) CPC and further failed to decide the appeal as provided
u/s.100(5) CPC – Instead, the High Court framed the questions for
the first time while delivering the impugned judgment – The procedure
and manner in which the High Court decided the second appeal
was not in conformity with the mandatory procedure laid down in           E
s.100 CPC – Thus, impugned judgment set aside – Case remanded
to the High Court for deciding the second appeal afresh in
accordance with law.
      Allowing the appeal, the Court
      HELD:1. The High Court failed to frame any substantial              F
question of law arising in the case while admitting the appeal as
required under Section 100 (4) of the Code of Civil Procedure,
1908 and further failed to decide the appeal as provided under
Section 100 (5) of the CPC. [Para 11] [363-H; 364-A]
      2. It is noticed that the High Court framed two substantial         G
questions of law for the first time in the impugned judgment itself.
In other words, what was required to be done by the High Court
at the time of admission of the appeal to formulate a question of
law after hearing the appellant as provided under Section 100 (4)
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                                 361
362            SUPREME COURT REPORTS                          [2019] 7 S.C.R.


A     of the CPC, but the High Court did it in the impugned judgment.
      Similarly, the High Court could have taken recourse to the powers
      conferred by proviso to Section 100 (5) of the CPC for framing
      any additional question of law at the time of final hearing of the
      appeal by assigning reasons for framing additional question, if it
      considered that any such question was involved. It was, however,
B
      not done. Instead, the High Court framed the questions for the
      first time while delivering the impugned judgment. [Para 12]
      [364-B-D]
            3. The procedure and the manner in which the High Court
      decided the second appeal regardless of the fact whether it was
C     allowed or dismissed cannot be countenanced. It is not in
      conformity with the mandatory procedure laid down in Section
      100 of the CPC. [Para 13] [362-C]
             4. In the light of the foregoing discussion, the impugned
      judgment cannot be sustained as it is not in conformity with the
D     mandatory requirements of Section 100 of the CPC and hence
      calls for interference in this appeal. [Para 15] [369-A-B]
            Surat Singh (Dead) v. Siri Bhagwan & Ors. (2018) 4
            SCC 562 : [2018] 1 SCR 1063 – relied on.
                              Case Law Reference
E
      [2018] 1 SCR 1063                relied on                 Para 14
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4666
      of 2019.
            From the Judgment and Order dated 30.09.2011 of the High Court
F     of Judicature at Madras in S.A. No. 365 of 2009.
           V. Prabhakar, Ms. Jyoti Parasher, N. J. Ramchandar, R.
      Chandrachud, Advs. for the Appellant.
            Mrs. B. Sunita Rao, Adv. for the Respondents.
            The Judgment of the Court was delivered by
G
            ABHAY MANOHAR SAPRE, J. 1. Leave granted.
            2. This appeal is filed against the final judgment and order dated
      30.09.2011 passed by the High Court of Judicature at Madras in Second
      Appeal No.365 of 2009 whereby the High Court allowed the said second
      appeal filed by the original respondent herein and set aside the judgment
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     ARULMIGHU NELLUKADAI MARIAMMAN TIRUKKOIL v.                              363
   TAMILARASI (DEAD) BY LRS. [ABHAY MANOHAR SAPRE, J.]

and decree dated 08.12.2008 of the Subordinate Judge, Nagapattinam in         A
A.S. No.30/2008 and dismissed the suit filed by the appellant herein.
      3. A few facts need mention hereinbelow for the disposal of this
appeal, which involves a short question.
      4. This appeal is filed by the plaintiff, who succeeded in the Trial
Court and the first Appellate Court but lost in second appeal filed by the    B
defendant (original respondent herein) in the High Court.
      5. The appellant (plaintiff) filed a civil suit against the original
respondent (defendant) for her eviction from the suit property. The
respondent contested the suit.
                                                                              C
       6. By Judgment and decree dated 11.10.2007, the District Munsif,
Nagapattinam decreed the suit. The defendant (original respondent)
felt aggrieved and filed first appeal (AS No. 30/2008) before the
Subordinate Judge. By judgment and decree dated 08.12.2008, the first
Appellate Court dismissed the appeal and affirmed the judgment and
decree passed by the District Munsif. The defendant felt aggrieved and        D
filed second appeal in the High Court. By impugned judgment, the High
Court allowed the appeal filed by the defendant and while setting aside
the order impugned in the second appeal dismissed the suit filed by the
appellant(plaintiff), which has given rise to filing of the present appeal
by way of special leave in this Court.                                        E
      7. So, the short question, which arises for consideration in this
appeal, is whether the High Court was justified in allowing the second
appeal filed by the defendant (original respondent herein).
      8. During the pendency of this appeal, the sole respondent died
and her legal representatives were brought on record by this Court’s          F
order dated 29.07.2016.
      9. Heard Mr. V. Prabhakar, learned counsel for the appellant and
Mrs. B. Sunita Rao, learned counsel for the respondents.
       10. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are constrained to allow this appeal, set       G
aside the impugned judgment and remand the case to the High Court for
deciding the appeal afresh on merits in accordance with law.
       11. The need to remand the case has occasioned because we find
that the High Court failed to frame any substantial question of law arising
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364            SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A     in the case while admitting the appeal as required under Section 100 (4)
      of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”)
      and further failed to decide the appeal as provided under Section 100 (5)
      of the CPC.
             12. It is noticed that the High Court framed two substantial
B     questions of law (see Para 7 of the impugned judgment) for the first
      time in the impugned judgment itself. In other words, what was required
      to be done by the High Court at the time of admission of the appeal to
      formulate a question of law after hearing the appellant as provided under
      Section 100 (4) of the CPC, but the High Court did it in the impugned
      judgment. Similarly, the High Court could have taken recourse to the
C     powers conferred by proviso to Section 100 (5) of the CPC for framing
      any additional question of law at the time of final hearing of the appeal
      by assigning reasons for framing additional question, if it considered that
      any such question was involved. It was, however, not done. Instead, the
      High Court framed the questions for the first time while delivering the
D     impugned judgment.
            13. In our considered opinion, the procedure and the manner in
      which the High Court decided the second appeal regardless of the fact
      whether it was allowed or dismissed cannot be countenanced. It is not in
      conformity with the mandatory procedure laid down in Section 100 of
E     the CPC.
            14. Recently, this Court had an occasion to examine this very
      question in Surat Singh (Dead) vs. Siri Bhagwan & Ors., [(2018) 4
      SCC 562]. The law is explained in Paras 20 to 35 of this decision which
      read as under:
F           “20. 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
G           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
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  ARULMIGHU NELLUKADAI MARIAMMAN TIRUKKOIL v.                        365
TAMILARASI (DEAD) BY LRS. [ABHAY MANOHAR SAPRE, J.]

  Court is satisfied that a substantial question of law is           A
  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
                                                                     B
  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 formulated by it, if it is satisfied
  that the case involves such question.”
  21. Sub-section (1) of Section 100 says that the second
  appeal would be entertained by the High Court only if the          C
  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         D
  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        E
  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          F
  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         G
  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
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366     SUPREME COURT REPORTS                       [2019] 7 S.C.R.


A     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
B
      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.
      22. Adverting to the facts of this case at hand, we are at a
C     loss to understand 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 learned Judge must have done it by
D     taking recourse to sub-section (4) of Section 100 of the
      Code.
      23. Here is the case where 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/
E     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.
      24. Such novel procedure adopted by the High Court, in
      our considered opinion, is wholly contrary to the scheme
F     of Section 100 of the Code and renders the impugned
      judgment legally unsustainable.
      25. In our considered opinion, the High Court had no
      jurisdiction to frame the substantial question at the time of
      writing of its final judgment in the appeal except to the
G     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. Indeed, the respondents could not come to know on
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  ARULMIGHU NELLUKADAI MARIAMMAN TIRUKKOIL v.                      367
TAMILARASI (DEAD) BY LRS. [ABHAY MANOHAR SAPRE, J.]

  which question of law, the appeal was admitted for final         A
  hearing.
  26. In other words, 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          B
  law, the appeal was admitted for hearing.
  27. 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         C
  time of final hearing that the question of law framed at the
  instance of the appellant does not really arise in the case.
  28. Yet, the other reason is that the respondents are only
  required to reply while opposing the second appeal to the
  question formulated by the High Court under sub-section          D
  (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 will have no
  jurisdiction to decide such second appeal finally for want of    E
  any substantial question(s) of law.
  29. 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     F
  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, as         G
  mentioned supra, 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
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368     SUPREME COURT REPORTS                       [2019] 7 S.C.R.


A     against the appellant. It is, however, done only after hearing
      the respondents under sub-section (5).
      30. 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
B     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.
C
      31. 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
D     the final hearing stage.
      32. 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. (See- Interpretation
E     of Statutes by G.P. Singh, IXth Edition page 347 and Baru
      Ram vs. Parsanni (Smt.), AIR 1959 SC 93).
      33. The aforesaid principle applies to the case at hand
      because, as discussed above, the High Court failed to follow
      the procedure prescribed under Section 100 of the Code
F     while allowing the second appeal and thus committed a
      jurisdictional error calling for interference by this Court in
      the impugned judgment.
      34. While construing Section 100, this Court in the case of
      Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs.,
G     (2001) 3 SCC 179 succinctly explained the scope, the
      jurisdiction and what constitutes a substantial questions of
      law under Section 100 of the Code.
      35. It is, therefore, the duty of the High Court to always
      keep in mind the law laid down in Santosh Hazari (supra)
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     ARULMIGHU NELLUKADAI MARIAMMAN TIRUKKOIL v.                                   369
   TAMILARASI (DEAD) BY LRS. [ABHAY MANOHAR SAPRE, J.]

       while formulating the question and deciding the second                      A
       appeal.”
       15. In the light of the foregoing discussion, we cannot sustain the
impugned judgment which, in our view, is not in conformity with the
mandatory requirements of Section 100 of the CPC and hence calls for
interference in this appeal.                                                       B
      16. The appeal thus deserves to be allowed and it is accordingly
allowed. The impugned judgment is set aside. The case is remanded to
the High Court for deciding the second appeal afresh in accordance
with law. The High Court will frame proper substantial question(s) of
law after hearing the appellant and if it finds that any substantial               C
question(s) of law arises in the case, it will first formulate such question(s)
and then accordingly decide the appeal finally on the question(s) framed
in accordance with law.
      17. We, however, make it clear that we have not expressed any
opinion on the merits of the controversy involved in this appeal, but only         D
formed an opinion to remand the case due to the infirmity noticed in the
manner in which the second appeal was decided. The High Court will,
therefore, decide the second appeal uninfluenced by any of our
observations made in this order.
      18. Since the matter is quite old, we request the High Court to              E
decide the second appeal expeditiously, preferably within six months
from the date of receipt of this judgment.

Ankit Gyan                                                       Appeal allowed.

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