Code of Civil Procedure [CaseLaws]

Section 100 CPC – Second Appeal – 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 has been allowed, that too, at the stage of admission, without issuance of notice to the other respondents and by hearing only counsel for one respondent before the High Court who was on caveat – Hemavathi vs V Hombegowda 2023 INSC 848

Section 100 CPC – Second Appeal – 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 – 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 – Suresh Lataruji Ramteke vs Sumanbai Pandurang Petkar 2023 INSC 846

Order XLIII, Rule 1(u)“An appeal against an order of remand, properly presented, and otherwise in order, would not be rendered defunct or inconsequential by the passing of a final order giving effect to the terms of the remand order.” Yasmeen Zia vs Haneefa Khursheed FAO 1285 of 2023Allahabad HC.

Section 100 CPC What is the meaning of the phrase “substantial question of law” in Section 100 of Code of Civil Procedure ? The test is whether it is of general public importance or whether it directly or substantially affects the right of the parties or whether the question is still open i.e., it is not finally settled by the Supreme Court- The word substantial, as qualifying “question of law”, means — of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with — technical, of no substance or consequence, or academic merely-Legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance- A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law- To be “substantial” a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. 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- It will depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.-When court is called upon to interpret documents and examine their effect, depending upon the nature of controversy and the issues involved, it would constitute substantial question (s) of law –Appaiya vs Andimuthu@ Thangapandi 2023 INSC 835.

 Order XLIII Rule 1(u) CPC – Trial Court passed a decree. First Appellate Court passed a remand order. Against this, a party filed appeal before High Court as remand order is an appealable order under Order XLIII Rule 1(u) CPC – The said appeal before HC is not available as a matter of right. “This is consistent with the public policy.. For all purposes, an appeal under clause (u) of Rule 1 of Order XLIII of the CPC will be treated as a second appeal under Section 100 of the CPC.” So the appeal against a remand order can be heard provided a substantial question of law within the meaning of Section 100 of the CPC arises – Shahid Hussain vs Mahtaba Begum – SLP(C) 4698-4700 OF 2018

Order VII Rule 11 CPC – Res Judicata – Can the issue of res judicata be decided in an application seeking rejection of the plaint under Order VII Rule 11 CPC? Supreme Court observed that the issue of res judicata cannot be decided on an application under Order VII Rule 11 CPC. This is because: The reason is that the adjudication on this issue involves consideration of the pleadings in the earlier suit, the judgment of the Trial Court and the judgment of the Appellate Courts -The Court can look into only the averments made in the plaint and at the highest, documents produced along with the plaint. -The defence of a defendant and documents relied upon by him cannot be looked into while deciding such application – Keshav Sood vs Kirti Pradeep Sood – CA 5841 OF 2023

Order V Rule 2 CPC – Service contemplated in terms of Order V Rule 2 of the Code would imply service of summons along with the copy of the plaint – National Insurance Company Ltd vs National Building Construction India Ltd. SLP(C) 5383 of 2020

Section 100 CPC (second appeal)- High Court judgment in a second appeal set aside by the Supreme Court on the ground of non framing of substantial questions of law. In this case, Uttarakhand High Court framed a substantial question of law only to recall it later. Thereafter without framing a new substantial question of law, it disposed of the second appeal re-appreciating evidence. Supreme Court now set aside this HC judgment and directed it to consider the second appeal afresh. “if the appeal was entertained without framing substantial questions of law, then it would be illegal and would amount to failure or abdication of the duty cast on the court. Further, it was held that existence of substantial question of law is the sine qua non for exercise of power under Section 100, Code”, the court noted. –Ashok Kumar Goel vs Ram Niwas GoelSLP(C) .6474-6475/2019.

Preliminary Decree – In a suit for partition, every interested party is deemed to be a plaintiff. Law does not bar passing of numerous preliminary decrees.” A Krishna Shenoy vs Ganga Devi GSLP(C) 8080/2019

Section 96 CPC – If the application seeking condonation of delay in filing the written statement was rejected by the Trial Court and no written statement was taken on record by the trial Court, there was every opportunity for the respondents/defendants to assail the said order before the appropriate forum. Not doing so would mean that it had given up its claim to file the written statement before the Trial Court. When the matter stood thus in an appeal filed by the appellants/plaintiffs, the High Court could not have granted the relief to the respondents/defendants to file the written statement – Deepak Kapur vs Ashok D Mehta SLP(C) 11480 of 2021

Section 100 CPC (Second Appeal) – A decree can be passed under Section 100 of C.P.C. only on a substantial question of law, which if answered in favour of the appellant will 2 have the effect of reversing the decree of the court below – Ajay Kumar Sharma vs Asha Devi – SLP(C) 1654 of 2017

Section 100 CPC (Second Appeal)It is the practice and a mandatory requirement that at the time of admitting the regular second appeal, substantial question(s) of law must be framed, on the basis of which the arguments must be advanced and a decision given thereon.It is also permitted that once the arguments have been advanced, the court is at liberty to re-frame or frame fresh substantial questions of law and answer the same on hearing the learned counsel for the respective parties.” Bhagyashree Anant Gaonkar vs Narendra @ Nagesh Bharma Holkar

Order XVII Rule 2 CPC Explanation

Under Order XVII Rule 2, the Court would proceed to pass orders with respect to any of the parties being absent or both the parties being absent. Whereas the explanation is confined to record the presence of that party and that party alone, which has led evidence or substantial evidence and has thereafter failed to appear.Once the defendant had not led any evidence at all, the explanation could not be invoked as against the defendant – P Lele vs Maharashtra State Electricity Distribution Company Ltd. | 2023 INSC 732

Order IX –

Once the counsel had withdrawn his Vakalatnama, in normal course, the Trial Court ought to have issued notice to the defendant to engage another counsel, instead of proceeding ex parte.- P Lele vs Maharashtra State Electricity Distribution Company Ltd. | 2023 INSC 732