Code of Civil Procedure, 1908: s.100 – Non-framing of substantial questions of law at the time of dictation of the judgment – Held: This procedure is not fair to the parties – The parties must know what are the substantial questions of law which the Court is required to answer in a particular case – It is only then that the parties and their counsel can properly assist the Court – As per s.100, an appeal can only lie if there is a substantial question of law involved in the appeal – Sub-section (3) states that the memorandum of appeal filed under s.100 should precisely state the substantial question of law involved in the appeal – It is only if the High Court is satisfied that a substantial question of law is involved in the case that it shall formulate that question – A duty is cast upon High Court to formulate the substantial questions of law in terms of sub-section (4) of s.100 – Therefore, normally the order of admission of the appeal should clearly indicate on what substantial questions of law the appeal has been admitted – Even if High Court is of the view that the substantial questions of law, as framed in the memorandum of appeal, are substantial questions of law, the order admitting the appeal should specifically state what are the questions of law on which the appeal is admitted – Thus, hearing of the appeal should revolve around the substantial questions of law and the Court at the final hearing cannot go beyond the substantial questions of law – If at the time of final hearing, the Court feels that there is some other substantial question(s) of law involved, it is not debarred from formulating that question even at that stage but hearing will have to be limited to substantial questions of law – Sub-section (5) also clearly lays down that the respondent has a right to urge that the substantial question(s) of law, as formulated, do not actually arise for consideration or that they are not substantial questions of law.
Code of Civil Procedure, 1908: s.100, proviso – The proviso to s.100 makes it clear that the Court has the power to hear the appeal from any substantial questions of law not formulated by it, if it is satisfied that the case involves such questions – However, in such eventuality, the Court has to record its reasons for formulating such questions of law – This obviously means that the Court will pass a reasoned order while formulating the substantial question(s) of law at this stage – The natural corollary is that the parties have to be heard after the framing of such substantial questions of law – The hearing cannot be prior to the substantial questions of law.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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