Wherein, without framing the substantial question of law, Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (For short the “CPC”) is allowed. Additionally notice to respondent Nos. 1, 3 and 4 may not have been issued and served as the Second Appeal was allowed at the stage of admission and if notice had been issued and served no counsel for the said respondents had been heard. It is on the basis of the aforesaid two grounds alone, the appeals would have to be allowed and the impugned order(s) of the High Court passed in RSA No.291/2022 disposed of on 13.04.2022 and in Review Petition No.536/2022 disposed on 23.06.2022 would have to be set aside. (Para 1)
The aforesaid paragraph would speak for itself vis-a-vis the infirmities in the impugned judgment and order of the High Court. If no substantial question of law arose in the case then the appeal could not have been entertained and ought to have been dismissed at the stage of admission. But on the other hand, in the absence of framing any substantial question of law the appeal has been allowed, that too, at the stage of admission, without issuance of notice to the other respondents Nos.1, 3 and 4 and by hearing only learned counsel for the respondent No.2 before the High Court who was on caveat. The aforesaid errors are compounded by the fact that a sum of Rs.50,000/-(Rupees fifty thousand only) cost was awarded to the successful plaintiffs who were respondents before the High Court in lieu of any notice being issued to them! The aforesaid infirmities cannot be overlooked and compensated by ordering a sum of Rs.50,000/- to be paid by the first respondent herein (appellant in the Second Appeal before the High Court) to the respondent-plaintiff(s). (Para 15)
In the circumstances, the impugned judgment dated 13.04.2022 and impugned order dated 23.06.2022 passed in the Regular Second Appeal as well as the Review Petition are set aside. The matters are remanded to the High Court to consider the same in accordance with law and by being mindful of the aforementioned flaws in the impugned judgment and order. Since the parties are before the High Court, it is necessary to ensure that the legal representatives of the deceased-Respondent No.2 herein are brought on record (R-4 before the High court) by the first respondent herein who was the appellant in the High court by filing the necessary applications so as to bring his legal representatives on record and thereafter to dispose of the Regular Second Appeal in accordance with law. Appeals are allowed and disposed of in the aforesaid terms. No costs. (Para 16)
SUPREME COURT OF INDIA
2023 STPL(Web) 292 SC
[2023 INSC 848]
Hemavathi & Ors. Vs. V. Hombegowda & Anr.
Civil appeal no(s). 5780-5781/2023 (@ SLP (C) No(s). 19975-19976/2022)-Decided on 11-9-2023
https://stpllaw.in/wp-content/uploads/2023/10/2023-STPLWeb-292-SC.pdf
