NEK PAL & ORS v. NAGAR PALIKA PARISHAD & ORS

Leave granted.

Our attention is invited to the impugned judgment of the High Court in a Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, “the CPC”). Following is the relevant part of the impugned judgment:

The aforesaid paragraph indicates that at the time of admitting the second appeal under Section 100 of the CPC, substantial questions of law were not formulated. Unless substantial questions of law are formulated at the time of admission of the appeal or any time subsequent thereto, a second appeal cannot be finally heard. The reason is that a second appeal can be finally heard only on a substantial question of law formulated earlier. In fact, the act of finally hearing a second appeal without framing any substantial question of law is itself illegal. There is nothing on record to show that the High Court formulated the substantial questions of law and gave an opportunity to the parties to argue on the basis of those substantial questions of law. All that the High Court says is the Court has confined itself to three substantial questions of law. The High Court did not put the rival Advocates to the notice before the commencement of hearing that it was proposing to hear the appeal on specific substantial questions of law. The High Court could have framed substantial questions of law and heard the appeal after few days so that the Advocates had a notice that the appeal will be heard on specific substantial questions of law. 2

Therefore, the procedure followed by the High Court is completely illegal and contrary to Section 100 of the CPC. Only on this ground, we set aside the impugned judgment dated 13th November, 2017 and restore Second Appeal Nos.34/2003 and 48/2003 to the file of the High Court of Uttarakhand at Nainital. All contentions of the parties on merits of the Second Appeals are kept open.

A copy of this order shall by forwarded by the Registry to the Registrar (Judicial) of the High Court of Uttarakhand. The Registrar (Judicial) of the High Court shall list the restored Second Appeals before the roster Bench on 27th August, 2024. The parties, who are appearing today, shall be under an obligation to appear before the High Court on that date. The High Court need not issue a notice to those parties.

If the High Court wants to frame substantial questions of law as indicated in the impugned judgment or if the High Court desires to frame additional substantial questions of law, it is open for the High Court to do so. After completing the said exercise, the High Court shall fix a date for hearing of the Second Appeals taking into consideration the fact that the Second Appeals are 21 years old.

We also clarify that till the date of the impugned judgment if any interim relief was operative in the restored Second Appeals, the same shall continue to operate. 3

The Civil Appeals are partly allowed on the above terms.

Pending applications, including the application for impleadment, stand disposed of accordingly. ..........................J. (ABHAY S. OKA) ..........................J. (AUGUSTINE GEORGE MASIH) NEW DELHI; JULY 26, 2024. 4