Summary
The High Court had allowed a second appeal ex parte, without serving the appellant personally (notice went only to his father) and without framing any substantial question of law. Fraud was also alleged against the plaintiff. The Supreme Court set aside the second appeal judgment, the review order and the order refusing recall, and restored the second appeal to the High Court, holding that its earlier dismissal of an SLP did not bar reconsideration because no merger occurs.
Issues
- Whether service of notice of the second appeal on the appellant's father was valid service on the appellant.
- Whether the High Court could allow a second appeal under Section 100 CPC without framing a substantial question of law.
- Whether the earlier dismissal of SLPs and a review petition by the Supreme Court barred reconsideration of the second appeal where fraud was alleged.
- Whether the High Court rightly rejected the appellant's recall application as a second review barred under Order XLVII Rule 9 CPC.
Provisions considered
- Section 100, Code of Civil Procedure, 1908The Court held that the High Court's jurisdiction in a second appeal rests on formulating a substantial question of law, and that reversing the lower courts' decrees without doing so is impermissible. The judgment allowing the second appeal without any such question was therefore erroneous. (¶¶ 27, 28)
- Order XLVII Rule 9, Code of Civil Procedure, 1908The High Court had rejected the recall application on the footing that this rule bars a second review. Given the denial of hearing, the absence of substantial questions of law and the allegation of fraud, the Supreme Court set that order aside and restored the second appeal. (¶¶ 17, 28, 30)
- Order XLI Rule 27, Code of Civil Procedure, 1908Responding to the appellant's request, the Court left both sides free to place additional evidence before the High Court in accordance with law in the restored second appeal. (¶¶ 22, 31)
- Article 136 (doctrine of merger), Constitution of IndiaFollowing Kunhayammed, an order refusing special leave, whether speaking or not, does not attract the doctrine of merger. The earlier dismissal of the SLP and the review petition therefore did not stand in the way of the High Court reconsidering the second appeal. (¶¶ 28, 29)
Held
- Serving notice of the second appeal on the appellant's father was not service on the appellant. The second appeal was therefore decided without giving the appellant, the successful defendant in both courts below, an opportunity of being heard. (¶¶ 27, 28)
- A second appeal can be entertained and decided only on a substantial question of law formulated under Section 100 CPC. A High Court that reverses the decrees of the courts below without framing any such question renders a judgment that cannot be sustained. (¶¶ 27, 28)
- Relying on A.V. Papayya Sastry, the Court held that a judgment obtained by fraud is a nullity and that the principle of finality cannot shield a fraudulent litigant. Where fraud is alleged, the High Court must be able to reconsider its orders. (¶¶ 28, 30)
- An order refusing special leave to appeal does not merge with or replace the order under challenge. The Supreme Court's dismissal of the SLP and the later review petition therefore did not bar reconsideration of the second appeal by the High Court. (¶ 29)
- Without deciding the merits, the Court held that the appellant deserved another opportunity before the High Court. It directed the High Court to frame substantial questions of law and decide the restored second appeal, taking into account any additional pleadings, applications and evidence. (¶¶ 30, 31)
Result
Appeal allowed. The High Court's orders dated 05.01.2021 and 11.10.2019 and its judgment dated 01.07.2019 were set aside, and the second appeal was restored. Parties were to appear before the High Court on 18.02.2025, which was to frame substantial questions of law and decide the appeal, with liberty to both sides to lead additional evidence in accordance with law. No order as to costs.