Vs. Veerasekaran & ANR.  INSC 1576 (14 September 2009)
APPELLATE JURISDICTION CIVIL APPEAL NO.6249 OF 2009 (Arising out of S.L.P. (C)
No.23723 of 2008) Devarasu ...Appellant(s) Versus Veerasekaran & Anr.
O R D E R
filed by the appellant for declaration of title and permanent injunction was
decreed by the trial Court vide judgment dated 31.1.1995. The appeal preferred
by the respondents was dismissed by District Judge, Villupuram but the second
appeal filed by them has been allowed by the High Court and suit of the
plaintiff- appellant dismissed. Hence, this appeal by special leave.
heard learned counsel for the parties and scrutinized the records. In our opinion,
the impugned judgment is liable to be set aside only on the ground of violation
of Section 100 of the Code of Civil Procedure.
of Section 100 lays down that an appeal shall lie to the High Court from every
decree passed in appeal by any court subordinate to the High Court, if the High
Court is satisfied that the case involves a substantial question of law.
Sub-section(4) lays down that where the High Court is satisfied that a
substantial question of law is involved in any case, it shall formulate that
question. In terms of sub-section 5, the ...2/- - 2 - appeal is required to be
heard on the question so formulated and respondent at liberty to argue that the
case does not involve such question. Proviso to sub- section(5) empowers the High
Court, for reasons to be recorded, to hear the appeal on any other substantial
question of law which may not have been formulated in terms of sub-section(4).
In the present case, no substantial question of law was framed by the High
Court till the commencement of hearing. The substantial question enumerated in
para 8 of the impugned judgment was formulated only during the course of
argument. This is legally impermissible. Unless the question is formulated and
the respondent is put to notice in relation to such question, he/she is
deprived of the opportunity to make submissions with reference to the
substantial question of law formulated by the High Court and also show that the
case does not involve such question.
the appeal is allowed, impugned judgment is set aside and the matter is
remitted to the High Court. Now, the High Court shall consider whether any
substantial question of law arises in the second appeal or not. If it comes to
the conclusion that the same arises, in that eventuality, the same shall be
formulated. Thereafter, the appeal shall be heard and disposed of in accordance
with law after giving opportunity of hearing to the parties.
......................J. [B.N. AGRAWAL]
......................J. [G.S. SINGHVI]
September 14, 2009.