Procedure for disposal of Second Appeal by High Court.

Framing of question of law:

High Court framed 6 questions of law at the time of admission of appeal but delivered no judgement on those questions. However it framed two other questions in the judgement and decided the appeal. Procedure if legal?

First, though it rightly framed six substantial questions of law at the time of admission of the appeal on 30.11.2002 as arising in the case but erred in not answering these questions.

The High Court had the jurisdiction to decide the second appeal only on the six substantial questions of law framed at the time of admitting the appeal. In other words, the jurisdiction of the High Court to decide the second appeal was confined only to six questions framed and not beyond it.

Second, the High Court though had the jurisdiction to frame additional question(s) by taking recourse to proviso to sub­section(5) of Section 100 of the Code but it was subject to fulfilling the three conditions, first “such questions should arise in the appeal”, second, “assign the reasons for framing the additional questions” and third, “frame the questions at the time of hearing the appeal”.

In this case, the High Court committed an error because it framed two additional questions in the judgement itself.

This procedure adopted by the High Court while deciding the second appeal caused prejudice to the rights of the parties because the parties, especially the appellants herein, who suffered the adverse order, had no knowledge about framing of the two additional questions inasmuch as they were deprived of the opportunity to address the Court on the two additional questions on which the impugned judgment was founded.

In our considered opinion, the High Court, therefore, committed two jurisdictional errors while deciding the second appeal.

[Source: Vijay  vs Nana, decided by SC on 11 May, 2018]

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