Summary
The Supreme Court remanded a second appeal allowed without framing any substantial question of law and without hearing all affected respondents. The High Court’s review order compounded the error by saying that no substantial question arose. Costs and a proposed fresh trial could not cure those defects. Moreover, after condoning delay in a first appeal dismissed only as time-barred, the proper course would have been merits consideration by the first appellate court, rather than bypassing it for a new trial.
Issues
- Whether a second appeal could be allowed without a substantial question of law and hearing all affected respondents.
- Whether condoning delay in the first appeal justified direct remand to the trial court.
Provisions considered
- Section 100, Code of Civil Procedure, 1908Substantial questions of law must be formulated and decided with an opportunity for the parties to address them. Absence of any such question requires rejection, not allowance of the second appeal on equitable grounds.
Held
- A second appeal requires a substantial question of law, not merely a factual or ordinary legal dispute. Questions must be framed before the appeal is decided, including when it is finally disposed of at admission. Additional or reformulated questions require a hearing; equitable considerations cannot replace this jurisdictional requirement.
- The High Court allowed the appeal without framing any question, then said on review that none arose. It also heard only the caveating respondent rather than all affected parties. A costs payment and the promise of later opportunity at a fresh trial could not cure those errors.
- The first appeal had been dismissed on delay without a merits decision. If that delay were properly condoned, the merits belonged before the first appellate court; setting aside the trial decree and ordering a fresh trial improperly bypassed that appellate stage.
- Fresh High Court consideration was required in accordance with Section 100 and after bringing the deceased respondent’s legal representatives on record through the necessary applications. The Supreme Court did not finally decide the partition merits or affirm condonation of the lengthy delay.
Result
Appeals allowed without costs. Second-appeal judgment and review order set aside; matters remanded to the High Court for lawful, expeditious consideration after substitution of the deceased respondent’s legal representatives.