Case Note & Summary
The appellant, a temple (Arulmighu Nellukadai Mariamman Tirukkoil), filed a civil suit for eviction of the respondent (Tamilarasi) from suit property. The trial court (District Munsif, Nagapattinam) decreed the suit on 11.10.2007. The first appellate court (Subordinate Judge, Nagapattinam) dismissed the respondent's appeal (A.S. No.30/2008) on 08.12.2008, affirming the decree. The respondent then filed a second appeal (S.A. No.365 of 2009) in the Madras High Court. The High Court allowed the second appeal on 30.09.2011, setting aside the lower courts' judgments and dismissing the suit. The appellant appealed to the Supreme Court by special leave. During the appeal, the sole respondent died and her legal representatives were substituted. The Supreme Court heard counsel for both sides. The core legal issue was whether the High Court complied with the mandatory procedure under Section 100 of the Code of Civil Procedure, 1908 (CPC) for second appeals. The appellant argued that the High Court failed to frame a substantial question of law at the time of admission as required by Section 100(4) and instead framed questions for the first time in the final judgment. The respondent supported the High Court's judgment. The Supreme Court analyzed Section 100 and relied on its earlier decision in Surat Singh (Dead) vs. Siri Bhagwan & Ors., (2018) 4 SCC 562, which held that framing a substantial question of law at the admission stage is mandatory and that the High Court cannot frame such questions for the first time in the final judgment. The Court found that the High Court's procedure was contrary to the scheme of Section 100 and caused prejudice to the respondent, who was deprived of the opportunity to know the question on which the appeal was admitted. Consequently, the Supreme Court allowed the appeal, set aside the impugned judgment, and remanded the case to the High Court for fresh disposal in accordance with law, directing the High Court to first frame substantial questions of law under Section 100(4) and then decide the appeal under Section 100(5).
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100(4) and (5) of the Code of Civil Procedure, 1908 - The High Court framed substantial questions of law for the first time in the final judgment instead of at the admission stage - Held that the procedure adopted is contrary to the mandatory scheme of Section 100 and renders the judgment legally unsustainable - The appeal was remanded to the High Court for fresh disposal in accordance with law (Paras 11-14).
Issue of Consideration
Whether the High Court was justified in allowing the second appeal without framing a substantial question of law at the time of admission as required under Section 100(4) of the Code of Civil Procedure, 1908.
Final Decision
Appeal allowed; impugned judgment of High Court set aside; case remanded to High Court for fresh disposal in accordance with law, with direction to first frame substantial questions of law under Section 100(4) CPC and then decide appeal under Section 100(5) CPC.
Law Points
- Second appeal
- substantial question of law
- mandatory procedure
- Section 100 CPC
- framing of question at admission
- remand
