Summary
The Supreme Court remitted a second appeal because the High Court first formulated and answered a substantial question of law in the concluding part of its final judgment. Section 100 CPC required prior formulation and a fair opportunity for the respondent to contest the question. The High Court also should have granted rehearing to the absent contesting purchaser in the circumstances. The underlying land dispute was left entirely open.
Issues
- Whether a substantial question of law could first be formulated and answered in the final judgment of a second appeal.
- What opportunity Section 100 conferred on the respondent.
- Whether rehearing and remand were required on these facts.
Provisions considered
- Section 100, Code of Civil Procedure, 1908Required formulation of substantial questions before final decision and hearing on those questions, subject to the reasoned additional-question power in subsection (5). (¶¶ 20, 21, 25, 29)
Held
- The High Court had not formulated a substantial question at admission or before final hearing, but did so for the first time in the concluding paragraph while allowing the appeal. That procedure violated the mandatory scheme of Section 100 and caused prejudice. (¶¶ 18, 19, 22, 23, 24, 25, 26, 29, 33)
- Prior formulation informs the respondent of the case to meet and permits an objection that the question does not arise. Final adjudication is confined to the formulated questions; additional substantial questions require recorded reasons under the proviso to subsection (5). The procedural requirements apply even if the respondent is absent. (¶¶ 21, 25, 27, 28, 29, 31)
- A second appeal involving no substantial question may be dismissed at admission without notice, but the High Court must record reasons. If a substantial question arises, it must be formulated and the appeal heard in the prescribed manner. (¶¶ 21, 29, 30, 35, 37)
- Given the controversy and grounds of the rehearing application, the absent contesting respondent should have received an opportunity to oppose the appeal. The refusal to restore the matter for rehearing was also erroneous on these facts. (¶¶ 12, 13, 14, 15)
- The Court remitted the second appeal for fresh consideration and formulation of proper questions if they arose, without expressing an opinion on the merits. Expeditious disposal was requested, preferably within six months of receipt of the judgment. (¶¶ 37, 38, 39)
Result
Appeals allowed; impugned judgment set aside. Second appeal remitted for fresh decision under Section 100 CPC, preferably within six months of receipt of the judgment; merits left open.