Supreme Court of India
SURESH LATARUJI RAMTEKEversusSAU. SUMANBAI PANDURANG PETKAR & ORS.
- Citation
- 2023 INSC 846
- Decided
- 21 September 2023
- Disposal
- Appeal(s) allowed
Holding
A second appeal under Section 100 CPC is decidable only after substantial questions of law are framed at admission and the parties are given adequate opportunity to be heard; reversal of findings of fact is permissible only after the court has perused the trial record and in exceptional circumstances.
Summary
The appellant Suresh Ramteke sought specific performance of a sale deed against the respondents Sumanbai Petkar, alleging that the respondents failed to execute the deed despite his readiness and payment of consideration. The trial court and the first appellate court upheld the appellant's claim, finding that the respondents had entered into a valid agreement and that the appellant was ready to perform. The High Court, exercising jurisdiction under Section 100 of the CPC in a second appeal, framed substantial questions of law on the day of hearing, heard the parties briefly, and reversed the lower courts' findings of fact without calling for the trial record. The Supreme Court held that a second appeal must first frame substantial questions of law at the time of admission and give the parties adequate opportunity to be heard on those questions before deciding the appeal, and that reversal of factual findings is permissible only after perusing the trial record and in exceptional circumstances. Consequently, the Supreme Court set aside the High Court's judgment, remanded the matter for fresh consideration, and allowed the appeal.
Issues considered
- Whether the High Court could decide a second appeal under Section 100 CPC without affording the parties adequate opportunity to be heard on the framed substantial questions of law.
- Whether the High Court could reverse findings of fact without summoning and perusing the trial court record in a second appeal.
- Whether substantial questions of law must be framed at the time of admission of a second appeal and any later framing requires a hearing.
Legislation cited
Subjects
Section 100 CPCsecond appealsubstantial question of lawreversal of findings of factprocedural fairnesshearingappellate jurisdictioncivil procedure
Judgment
[2023] 12 S.C.R. 488 : 2023 INSC 846
CASE DETAILS
SURESH LATARUJI RAMTEKE
v.
SAU. SUMANBAI PANDURANG PETKAR & ORS.
(Civil Appeal No. 6070 of 2023)
SEPTEMBER 21, 2023
[B. R. GAVAI AND SANJAY KAROL, JJ.]
HEADNOTES
Issue for consideration: Whether in the absence of affording adequate
opportunity of hearing to the parties on addressing the framed substantial
questions of law, the High Court could have proceeded to decide the same
in an appeal u/s.100, CPC particularly, when the findings of fact rendered
by two Courts, were sought to be reversed; and further, whether without
summoning and perusing the trial record, findings of fact could have been
reversed by High Court in exercise of its appellate jurisdiction u/s.100, CPC.
Code of Civil Procedure, 1908 – s.100 – Scope:
Held: A Court sitting in second appellate jurisdiction is to frame
substantial question of law at the time of admission, save and except in
exceptional circumstances – Post such framing of questions, the Court shall
proceed to hear the parties on such questions after giving them adequate
time to meet and address them – It is only after such hearing subsequent
to the framing that a second appeal shall come to be decided – Further, in
ordinary course, the High Court in such jurisdiction does not interfere with
finding of fact, however, if it does find any compelling reason to do so as
regard in law, it can do but only after perusing the records of the Trial Court,
on analysis of which the conclusion arrived at by such a Court is sought
to be upturned – s.100(5) suggests that there is a gap between framing of
the questions at admission and hearing, as the proviso thereto gives an
opportunity to the Court to frame additional questions at the time of hearing,
on which the parties would have to be heard as well – Meaning thereby, that
the questions framed at the time of admission, at such point of subsequent
framing of questions are already known to the parties and they have had time
488
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI 489
PANDURANG PETKAR
to prepare to address arguments on the same – It is during the arguments
that a further important issue is discovered and a question in that regard is
framed, with the parties then being granted time to meet that question as
well – In the present case, the parties were not given the requisite time to
meet the questions framed by the Court – Questions of law were framed
on the second date of hearing, the parties were heard right then and there,
and the second appeal was disposed of with the judgment being dictated
and findings of fact reversed – Further, impugned judgment overturned
concurrent findings of fact in respect of readiness and willingness on the
part of plaintiff to perform the contract, without pointing out the exceptional
circumstance or the perversity in the findings which were returned by the
Courts below – For the Court to have done so, the actual evidence which
was before the Courts below had to be called for – Impugned Judgement set
aside – Matter remanded to High Court. [Paras 21, 23-25, 27, 28]
Code of Civil Procedure, 1908 – s.100 – Second appeal – Principles
reiterated.
LIST OF CITATIONS AND OTHER REFERENCES
Panchugopal Barua v. Umesh Chandra Goswami and Ors. (1997) 4
SCC 713:[1997] 2 SCR 12; Gurdev Kaur v. Kaki (2007) 1 SCC 546:[2006]
1 Suppl. SCR 27; Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17
SCC 71:[2019] 9 SCR 776; Santosh Hazari v. Purushottam Tiwari (2001)
3 SCC 179:[2001] 1 SCR 948; Government of Kerala v. Joseph 2023
SCC OnLine SC 961; Chandrabhan v. Saraswati 2022 SCC OnLine SC
1273; Umerkhan v. Bimillabi (2011) 9 SCC 684:[2011] 9 SCR 551; Shiv
Cotex v. Tirgun Auto Plast Pvt Ltd. & Ors. (2011) 9 SCC 678:[2011] 10
SCR 787; Gajaraba Bhikhubha Vadher v. Sumara Umar Amad (2020) 11
SCC 114; Kichha Sugar Co. Ltd. v. Roofrite (P) Ltd (2009) 16 SCC 280;
U.R. Virupakshappa v. Sarvamangala (2009) 2 SCC 177:[2008] 17 SCR
877; Mehboob-Ur-Rehman v. Ahsanul Ghani (2019) 19 SCC 415; B.C.
Shivashankara v. B.R. Nagaraj (2007) 15 SCC 387:[2007] 3 SCR 389;
Govindbhai Chhotabhai Patel v. Patel Ramanbhai Mathurbhai (2020) 16
SCC 255:[2019] 13 SCR 152; Kondiba Dagadu Kadam v. Savitribai Sopan
Gujar (1999) 3 SCC 722:[1999] 2 SCR 728; Dinesh Kumar v. Yusuf Ali
(2010) 12 SCC 740:[2010] 7 SCR 222; Hamida v. Mohd. Khalil (2001) 5
490 SUPREME COURT REPORTS [2023] 12 S.C.R.
SCC 30; Avtar Singh & Ors. v. Bimla Devi & Ors. (2021) 13 SCC 816;
Nazir Mohamed v. J. Kamala (2020) 19 SCC 57; Amar Singh v. Dalip
Singh (2012) 13 SCC 405 – relied on.
Ravi Setia v. Madan Lal (2019) 9 SCC 381; Sukhbir Singh v. Brij Pal
Singh (1997) 2 SCC 200:[1996] 2 Suppl. SCR 863 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION : Civil Appeal No.6070 of 2023
From the Judgment and Order dated 30.09.2022 of the High Court of
Judicature at Bombay at Nagpur in SA No.324 of 2021.
Appearances:
Prafulla S. Kubalkar, Satyajit A Desai, Siddharth Gautam, Abhinav K.
Mutyalwar, Gajanan N Tirthkar, Vijay Raj Singh Chouhan, Yougant Dhillon,
Ms. Aishwarya Shinde, Ms. Anagha S. Desai, Advs. for the Appellant.
Rajat Joseph, Hrishikesh Chitaley, Vijay Kari Singh, Advs. for the
Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
SANJAY KAROL J.
1. Leave granted.
2. The following questions arise for consideration of this Court:
2.1 Whether in the absence of affording adequate opportunity of
hearing to the parties on addressing the framed substantial
questions of law, the High Court could have proceeded to decide
the same in an appeal preferred under section 100 Code of Civil
Procedure (hereinafter “CPC”), particularly, when the findings
of fact rendered by two Courts, were sought to be reversed?
2.2 Whether in the absence of any trial record or without summoning
and perusing the trial record, findings of fact on the issue of
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI 491
PANDURANG PETKAR [SANJAY KAROL J.]
plaintiff’s readiness and willingness to execute the sale deed,
could have been reversed by the High Court in exercise of its
appellate jurisdiction under section 100 CPC?
3. Though, initially in the defendants’ appeal, which was listed firstly
th
on 26 April 2022, the High Court fixed the matter for preliminary hearing on
29th September 2022, but adjourned it for the next day, i.e., 30th September,
2022 when, after framing the substantial questions of law, proceeded to
hear the appeal and reversed the findings of fact concurrently recorded by
the two Courts in the plaintiff’s favour.
4. Hence, this appeal by special leave, seeks to assail a judgement and
order dated 30th September 2022 passed in Second Appeal No.324/2021
by the High Court of Judicature at Bombay (Nagpur Bench)1 whereby
concurrent findings returned by the Courts below vide judgement dated
3rd September, 20142 by the Civil Judge Senior Division, Gadchiroli and
vide judgement dated 1st October, 20213 by the Principal District Judge,
Gadchiroli, were overturned.
THE FACTUAL MATRIX
5. The respondent namely, Sumanbai Pandurang Petkar (defendant in
the original suit)4 had agreed to sell, for a consideration of ₹ 6,60,000/- the
property subject matter of dispute, i.e., 3 acres of land to the appellant herein
(plaintiff in the original suit)5.
6. For transfer, the Divisional Commissioner, Nagpur Division,
Nagpur, accorded necessary permissions. Despite various attempts at
execution, the same did not take place, and as such the plaintiff issued notices
to that effect, which were served on the respondents requiring them to be
present at the office of the concerned authority on 16 th December, 2009 at
11:30 AM to get the deed executed. Such notices remained not complied
with as the defendants allegedly, tried to evade coming to the office of the
authority for such purpose.
1 For Brevity, “Impugned Judgement”
2 Hereafter Referred to as “The Trial Court”
3 Hereinafter, “First Appellate Court”
4 Hereafter referred to as “the Defendants”
5 Hereafter, “the Plaintiff”
492 SUPREME COURT REPORTS [2023] 12 S.C.R.
7. It is as such that the case, subject matter of the present lis came to
be filed by the Plaintiff.
TRIAL COURT AND FIRST APPELLATE COURT
8. The Trial Court framed 5 issues. A tabular representation of the
issues, the corresponding findings and the reasons therefor, in short, is as
below: -
S. Issues Findings Reasons
No.
1. Does plaintiff prove YES PW-1 Suresh and PW-2
that defendant no. 1 Sudhakar have deposed
has entered into an that an agreement was
agr eement of sale entered into in respect
suit la nd Survey of the land and their
No. 236/2 area 1.19 testi monies remain
HR of Navegaon unshaken. Even though
in favor of plaintiff Ulhas Shriniwas Athaale
for consideration of (PW-3) has not positively
Rs.6,60,00/-? identified the thumb
impression as that being
the same one affixed by
defendant no. 1, namely
Sumanbai that does not
establish that she had
not affixed her thumb
impressions.
2 Does plaintiff prove YES It is clear that, as per the
that that on 29.03.2004 answer to issue one, the
defendant no. 1has agreement was entered
executed the agreement into, and it stating that
to sell in favour of the Rs.60,000/- stands
plaintiff and the earnest received by the defendant.
money of Rs.60,000/- Conclusively, said amount
was paid by the plaintiff was paid.
to the defendant on the
same day?
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI 493
PANDURANG PETKAR [SANJAY KAROL J.]
2A Whether the plaintiff No document is placed on
proves that he paid record to show wherefrom
NO
Rs.1,00,000 on the said amounts were
17.01.2005, another withdrawn, nor w as
Rs.1,00,000/- o n the same paid in the
07.05.2005, Rs.2,000/- presence of any one of the
on 12.06.2008 and witnesses. The amount
Rs.8,000/- on 12.06.2008 paid on 07.05.2005 was
to defendant no. 1 apparently paid by cheque
through her husband but the cheque number is
defendant no. 2? If yes, absent from the receipt.
what is the legal effect No passbook or statement
of this payment on the is placed on record to
rights of the parties? show the payment of such
amount. The handwriting
in which the endorsement
on the last page of the
agreement was made in
respect of receipt of such
amount is unclear.
3. Does the plaintiff prove YES Suresh’s (PW 1) testimony
that he is ready and th at a ft er re cei vi ng
willing to perform his requisite permission from
part of the contract? the authority the plaintiff
had asked the defendant
to execute the deed by
way of serving notice and
also the fact that he has
placed on record cheque
for Rs.3,90,000/-, leads
to the conclusion that he
has always been ready
and willing to perform
his part of the contract.
494 SUPREME COURT REPORTS [2023] 12 S.C.R.
4. Is the plaintiff entitled YES Consequent to the
for specific relief as findings in the affirmative
sought for? in question Nos.1, 2 and
3, the question No.4 is
also in the affirmative.
5. What order and decree? Suit is partly
decreed with
proportionate
costs. -----
9. The Plaintiff was, in view of the above, directed to deposit ₹ 6 lakh
with the Court within 15 days and upon such deposit, the defendant was to
necessarily execute the sale deed to be entitled to withdraw the said amount.
10. The First Appellate Court in addition to the questions framed by
the Trial Court, further added two issues, i.e., (a) Whether the suit is within
limitation?; and (b) Whether the impugned judgement required interference?
While not disturbing the findings arrived at by the Trial court, resultantly
answering the second issue in the negative, also held the suit filed to be
within the period of limitation. The appeal was, therefore, dismissed.
IMPUGNED JUDGMENT
11. In the Second Appeal, the Court framed four questions, substantial
in nature, and held that the concurrent findings as returned by the trial
courts were based on “complete misapplication of law” and “erroneous
consideration” and appreciation of the evidence led by the parties. Reliance
was placed on Ravi Setia v. Madan Lal6 to state that in cases of perverse
findings/complete misappropriation/erroneous consideration of the evidence,
or failure to consider relevant evidence, a Court in Second Appeal could
re-appreciate the evidence. In view of the above, the judgement rendered
by both the Courts below was set aside and the plaintiff’s suit for specific
performance dismissed.
12. It has been urged before us, amongst other grounds, that the
judgement of the High Court is contrary to the law settled by various
6 (2019) 9 SCC 381 Two Judge Bench
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI 495
PANDURANG PETKAR [SANJAY KAROL J.]
judgments of this court as the substantial questions were framed on the
second date of hearing thereby contravening the provisions of Section 100
CPC; the High Court ought not to ordinarily reverse findings of fact, more
so concurrent, returned by the trial court until and unless findings returned
are perverse, which clearly was not the case; on the aspect of readiness and
willingness, reliance was placed on Sukhbir Singh v. Brij Pal Singh7 to
submit that compliance with those two factors of specific relief does not
entail the carrying of hard cash and instead it is the presence of the financial
capacity to do so. A cheque for ₹ 3,90,000/-8 has been placed on record
which was for the meeting which was slated to take place in the office of
the Sub-Registrar but in fact it was the Respondents who did not attend; The
High Court erred severely in overturning the findings of fact, particularly
in the absence of the record of the trial court.
OPINION OF THE COURT
13. The jurisprudence on Section 100, CPC is rich and varied. Time
and again this Court in numerous judgments has laid down, distilled and
further clarified the requirements that must necessarily be met in order for
a Second Appeal as laid down therein, to be maintainable, and thereafter
be adjudicated upon. Considering the fact that numerous cases are filed
before this Court which hinge on the application of this provision, we find
it necessary to reiterate the principles.
13.1 The requirement, most fundamental under this section is the
presence and framing of a “substantial question of law”. In other
words, the existence of such a question is sine qua non for exercise
of this jurisdiction.9
13.2 The jurisdiction under this section has been described by this
Court in Gurdev Kaur v. Kaki10 (Two-Judge Bench) stating that post
1976 amendment, the scope of Section 100 CPC stands drastically
curtailed and narrowed down to be restrictive in nature. The High
7 (1997) 2 SCC 200 Two Judge Bench
8 Exhibit 73, as recorded by the Trial Court in issue No.3 of its judgment.
9 Panchugopal Barua v. Umesh Chandra Goswami and Ors. (1997) 4 SCC 713 Two
Judge Bench
10 (2007) 1 SCC 546 Two Judge Bench
496 SUPREME COURT REPORTS [2023] 12 S.C.R.
Court’s jurisdiction of interfering under Section 100 CPC is only in
a case where substantial questions of law are involved, also clearly
formulated/set out in the memorandum of appeal. It has been observed
that:
“At the time of admission of the second appeal, it is the bounden
duty and obligation of the High Court to formulate substantial
questions of law and then only the High Court is permitted to
proceed with the case to decide those questions of law. The
language used in the amended section specifically incorporates
the words as “substantial question of law” which is indicative of
the legislative intention. It must be clearly understood that the
legislative intention was very clear that legislature never wanted
second appeal to become “third trial on facts” or “one more dice
in the gamble”. The effect of the amendment mainly, according
to the amended section, was:
(i) The High Court would be justified in admitting the second
appeal only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such
question;
(iii) A duty has been cast on the High Court to formulate
substantial question of law before hearing the appeal;
(iv) Another part of the section is that the appeal shall be heard
only on that question.”
Gurdev Kaur (supra) was referred to and relied upon in Randhir
Kaur v. Prithvi Pal Singh & Ors.11
13.3 In Santosh Hazari v. Purushottam Tiwari12 a Bench of three
Judges, held as under in regard to what constitutes a substantial
question of law:-
a) Not previously settled by law of land or a binding precedent.
11 (2019) 17 SCC 71; Two Judge Bench
12 (2001) 3 SCC 179 Three Judge Bench
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI 497
PANDURANG PETKAR [SANJAY KAROL J.]
b) Material bearing on the decision of case; and (c) New
point raised for the fi rst time before the High Court is
not a question involved in the case unless it goes to the
root of the matter. Therefore, it will depend on facts of
each case.
Such principles stand followed in Government of Kerala v.
Joseph13 and Chandrabhan v. Saraswati14.
13.4 Non-formulation of substantial question(s) of law renders
proceedings “patently illegal”. This Court’s decisions in Umerkhan v.
Bimillabi15 and Shiv Cotex v. Tirgun Auto Plast Pvt Ltd. & Ors.16
indicate this position.
14. Substantial questions of law, as framed by the High Court must be
answered in light of the contentions raised therein.
14.1 If the Court is of the view that a question framed is to be altered,
deleted or a new question is to be added, then the Court must hear the parties.
14.2 For both the above principles, reference may be made to Gajaraba
Bhikhubha Vadher v. Sumara Umar Amad 17 where the following
principles were observed: -
a) The substantial question of law framed by the High Court must
be answered, with reasons. Disposing off the appeal without
answering the same cannot be justified.
b) If a need is felt to modify, alter or delete a question, a hearing
must be provided to the parties in respect thereof.
14.3 When the case is admitted, but upon hearing when it is found
that no substantial question of law arises for consideration, reasons should
be recorded in such dismissal.
13 2023 SCC OnLine SC 961 Two Judge Bench
14 2022 SCC OnLine SC 1273 Two Judge Bench
15 (2011) 9 SCC 684 Two Judge Bench
16 (2011) 9 SCC 678 Two Judge Bench
17 (2020) 11 SCC 114 (Three Judge Bench)
498 SUPREME COURT REPORTS [2023] 12 S.C.R.
15. In Kichha Sugar Co. Ltd. v. Roofrite (P) Ltd18 it was observed:
“4. Our attention is drawn by the learned counsel for the respondents
to the provisions of Section 100(5) of the Civil Procedure Code where
the respondent to a second appeal is permitted “to argue that the case
does not involve such question” i.e. the questions formulated earlier.
No doubt, but then the order on the second appeal should indicate,
howsoever briefly, why the questions formulated at the earlier stage
had, at the stage of final hearing, been found to be no questions of law.”
16. Substantial questions should ordinarily, not be framed at a later
stage. If done so, then parties must be given an opportunity to meet them.
This Court in U.R. Virupakshappa v. Sarvamangala 19 held :
“15. … It, furthermore, should not ordinarily frame a substantial
question of law at a subsequent stage without assigning any reason
therefor and without giving a reasonable opportunity of hearing to the
respondents. [See Nune Prasad v. Nune Ramakrishna [(2008) 8 SCC
258 : (2008) 10 Scale 523] ; Panchugopal Barua v. Umesh Chandra
Goswami [(1997) 4 SCC 713] (SCC paras 8 and 9); and Kshitish
Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438] (SCC
paras 10 and 12)].
16. The High Court, in this case, however, formulated a substantial
question of law while dictating the judgment in open court. Before such
a substantial question of law could be formulated, the parties should
have been put to notice. They should have been given an opportunity
to meet the same. Although the Court has the requisite jurisdiction to
formulate a substantial question of law at a subsequent stage which
was not formulated at the time of admission of the second appeal but
the requirements laid down in the proviso appended to Section 100 of
the Code of Civil Procedure were required to be met.”
16.1 This Court in Mehboob-Ur-Rehman v. Ahsanul Ghani20,
observed in respect of application of Section 100(5) CPC as under: -
18 (2009) 16 SCC 280 Three Judge Bench
19 (2009) 2 SCC 177 Two Judge Bench
20 (2019) 19 SCC 415 Two Judge Bench
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI 499
PANDURANG PETKAR [SANJAY KAROL J.]
a) It is not rule under proviso to sub-section (5) to hear any other
substantial question of law irrespective of the question(s)
formulated, so as to annul other requirements of S. 100, CPC.
b) Proviso to come in operation in exceptional cases where reasons
are to be recorded by High Court.
16.2 It has further been held that the application of this section is
only when some questions, substantial in law, already stand framed. (B.C.
Shivashankara v. B.R. Nagaraj21).
16.3 Wrong application of law laid down by the Privy Council, Federal
Court or the Supreme Court, will not qualify for substantial question of law
and neither wrong application of facts.
16.4 If on an issue, the trial court discusses the evidence but does not
return a finding thereon, High Court in jurisdiction under Section 100, CPC
may do so. Reference be made to Govindbhai Chhotabhai Patel v. Patel
Ramanbhai Mathurbhai.22
This Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar23,
observed-
“6. If the question of law termed as a substantial question stands
already decided by a larger Bench of the High Court concerned or by
the Privy Council or by the Federal Court or by the Supreme Court, its
merely wrong application on the facts of the case would not be termed
to be a substantial question of law. Where a point of law has not been
pleaded or is found to be arising between the parties in the absence
of any factual format, a litigant should not be allowed to raise that
question as a substantial question of law in second appeal. The mere
appreciation of the facts, the documentary evidence or the meaning of
entries and the contents of the document cannot be held to be raising
a substantial question of law…”
21 (2007) 15 SCC 387 Two Judge Bench
22 (2020) 16 SCC 255 Two Judge Bench
23 (1999) 3 SCC 722 Two Judge Bench
500 SUPREME COURT REPORTS [2023] 12 S.C.R.
16.5 Interference on findings of fact permitted in exceptional cases, i.e.,
when finding is based on either inadmissible or, no evidence. This Court in
Dinesh Kumar v. Yusuf Ali24 referring to various other cases held:-
a) It is not permissible for High Court to reappreciate evidence as
if it was the first appellate court unless findings were perverse.
b) Finding of fact can be interfered in exceptional circumstances
as rarity, rather than a regularity.
c) Scrutiny of evidence in second appeal is not prohibited but has
to be exercised upon proper circumspection.
17. Jurisdiction under second appeal not to be exercised merely because
an alternate view is possible. It was observed in Hamida v. Mohd. Khalil25
7. …The High Court, it is well settled, while exercising jurisdiction
under Section 100 CPC, cannot reverse the findings of the lower
appellate court on facts merely on the ground that on the facts found
by the lower appellate court another view was possible.”
This position was reiterated by Avtar Singh & Ors. v. Bimla Devi
& Ors.26
17.1 In aid of such a restricted application, an essential aspect in
ensuring that it does not acquire the nature of a “third appeal” is the limited
possibility of appreciation of evidence and connectedly, the restriction on
upturning concurrent findings of fact. However, there are certain exceptions
to the rule as pointed out by this Court in Nazir Mohamed v. J. Kamala27,
as under:
“33.4. The general rule is, that the High Court will not interfere with
the concurrent findings of the courts below. But it is not an absolute
rule. Some of the well-recognised exceptions are where: (i) the courts
below have ignored material evidence or acted on no evidence; (ii) the
courts have drawn wrong inferences from proved facts by applying
24 (2010) 12 SCC 740 Two Judge Bench
25 (2001) 5 SCC 30 Two Judge Bench
26 (2021) 13 SCC 816 Two Judge Bench
27 (2020) 19 SCC 57 Two Judge Bench
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI 501
PANDURANG PETKAR [SANJAY KAROL J.]
the law erroneously; or (iii) the courts have wrongly cast the burden
of proof. A decision based on no evidence, does not refer only to
cases where there is a total dearth of evidence, but also refers to case,
where the evidence, taken as a whole, is not reasonably capable of
supporting the finding.”
17.2 The extent of the same may be underscored by the observation
that:
“32. In a second appeal, the jurisdiction of the High Court being
confined to substantial question of law, a finding of fact is not open
to challenge in second appeal, even if the appreciation of evidence
is palpably erroneous and the finding of fact incorrect as held in V.
Ramachandra Ayyar v. Ramalingam Chettiar [V. Ramachandra Ayyar
v. Ramalingam Chettiar, AIR 1963 SC 302] . An entirely new point,
raised for the first time, before the High Court, is not a question
involved in the case, unless it goes to the root of the matter.”
(Emphasis Supplied)
18. It is apparent from the above extracted principles and a perusal of
the respective judgments that the second appeal is envisioned, much like
any other process of the Court to be a step-by-step process, each step further
being a consequence of the previous one. Framing of substantial questions at
the stage of admission, the appeal then being admitted for hearing, hearing
thereon, and then a reasoned judgment.
19. However, as a reading of the impugned judgment reveals, these
steps came to be followed, only partially, more so, ignoring the time element,
inherent therein.
20. As Sumara Umar Ahmad (supra), Kichha Sugar (supra) and
Virupakshappa (supra) and also the ingredients identified by Gurdev Kaur
(supra) show, hearing the parties, on all questions, framed at the time of
admission as also the one framed, added or altered, is absolutely essential.
21. In the present case, the parties were not given the requisite time to
meet the questions framed by the Court. Section 100(5) CPC suggests that
there is a gap between framing of the questions at admission and hearing,
as the proviso thereto gives an opportunity to the Court to frame additional
502 SUPREME COURT REPORTS [2023] 12 S.C.R.
questions at the time of hearing, on which the parties would have to be heard
as well. Meaning thereby, that the questions framed at the time of admission,
at such point of subsequent framing of questions are already known to the
parties and they have had time to prepare to address arguments on the same.
It is during the arguments that a further important issue is discovered and a
question in that regard is framed, with the parties then being granted time
to meet that question as well.
22. Our view finds support in Amar Singh v. Dalip Singh28 wherein
this Court held: -
a) The purpose of framing of substantial question of law is to give
the parties an opportunity to come prepared on that particular
question.
b) When a substantial question of law is formulated by the Court
then the same must be made known to parties and thereafter they
have to be given an opportunity to advance arguments thereon.
c) If any additional questions were framed at the time of hearing,
the Court must hear the parties on that question as well.
23. Here, the questions of law, were framed on the second date of
hearing, the parties were heard right then and there, and the second appeal
was disposed of with the judgment being dictated and findings of fact
reversed. That, as the above discussion points out, is not in consonance with
the manner set out for the disposal of a second appeal.
24. The impugned judgment overturns concurrent findings of fact in
respect of readiness and willingness on the part of the plaintiff to perform the
contract, without pointing out the exceptional circumstance or the perversity
in the findings which were returned by the Courts below.
25. For the Court to have done so, in accordance with law, the actual
evidence, which was before the Courts below, in our view, had to be
called for. This is so because, if the findings returned are to be upturned on
perversity, the same should unmistakably be reflected from record. If this is
not so done, the Court of first appeal being the “final Court of fact”, would
28 (2012) 13 SCC 405 Two Judge Bench
SURESH LATARUJI RAMTEKE v. SAU. SUMANBAI 503
PANDURANG PETKAR [SANJAY KAROL J.]
be reduced to a mere saying, of no actual effect. After all, a second appeal
is not a “third trial on facts”, and so, for reappreciation of evidence to be
justified, and for the same to be required - as well as being demonstrably, at
a different threshold from merely, a “possible different view”, perversity or
the other conditions of “no evidence” or “inadmissible evidence” ought to
be urged, and subsequently, with the Court being satisfied on the arguments
advanced, of such a possibility, the Court would then, proceed to call for
the record. That is to say that accepting the argument of perversity merely
on the submissions made and not having appreciated the record, would be
unfair to the Court of first appeal.
26. The haste with which the Court proceeded to dispose of the appeal
without proper and adequate opportunity to address arguments cannot be
appreciated. The governing statute lays considerable emphasis on hearing the
parties on all questions- and the same is reflected in various pronouncements
of this Court. The approach adopted by a Court in disposing of such appeals
must abide by the same.
27. The questions of law raised in the instant appeal are answered as
under :
27.1 A Court sitting in second appellate jurisdiction is to frame
substantial question of law at the time of admission, save and except
in exceptional circumstances. Post such framing of questions the Court
shall proceed to hear the parties on such questions, i.e., after giving
them adequate time to meet and address them. It is only after such
hearing subsequent to the framing that a second appeal shall come to
be decided.
27.2 In ordinary course, the High Court in such jurisdiction does not
interfere with finding of fact, however, if it does find any compelling
reason to do so as regard in law, it can do but only after perusing
the records of the Trial Court, on analysis of which the conclusion
arrived at by such a Court is sought to be upturned. In other words,
when overturning findings of fact, the Court will be required to call
for the records of the Trial Court or if placed on record, peruse the
same and only then question the veracity of the conclusions drawn
by the Court below.
504 SUPREME COURT REPORTS [2023] 12 S.C.R.
28. In view of the foregoing discussion we find it fit to remand the
matter to the High Court for consideration afresh in accordance with law.
Judgment and Order dated 30th September 2022 passed in Second Appeal
No.324/2021 by the High Court of Judicature at Bombay (Nagpur Bench) is
set aside and the case is restored to the file of the High Court. Accordingly,
the appeal is accepted and allowed in such terms.
29. Pending application(s), if any, shall stand disposed of.
30. No costs.
Headnotes prepared by: Appeal allowed.
Divya Pandey
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