Litigants should not be penalized for an omission of the Court; SC

A two Judge Bench of the Supreme Court in Arsad Vs. Bani Prosanna Kundu  & Ors.  [CIVIL APPEAL NO. 4805    OF  2014] held that in the light of the well accepted principle that  'rules  of  procedure is a handmaiden of justice', the omission  of  the  Court  in  formulating  the    'substantial question of law'  (while  admitting  the  appeal)  does  not    preclude the same from being heard as litigants should not  be  penalized  for an omission of the Court.         

It was submitted  that  the  High Court did not frame the substantial  question  of  law  at  the  time  of admission of the second appeal but formulated  a  question  only  in  the    impugned judgment after the arguments had been concluded.  Rejecting the contention the Bench held that "In the present case it is true that the substantial question of law  was  formulated by the High Court, though not at the admission stage but at a later stage before the hearing, it does not follow  that  merely because the "substantial question of law" was formulated by the High Court  at  a    later stage, the judgment of the High Court becomes a nullity, liable  to be set aside by this Court on that ground alone  and  for  the  same  the   appellants before us must also show prejudice to them  on  this  account"

The Bench was of the opinion that substantial  question of law can be formulated at the initial stage  and  in  some  exceptional cases, at a later point of time, even at the time of argument stage  such substantial question of law can be formulated provided the opposite party should be put on notice thereon and should be  given  a  fair  or  proper    opportunity to meet out the point. Furthermore, the judgment of the High Court should only be set aside on the ground of non-compliance with  sub- section (4) of Section 100 of CPC, if some prejudice has been  caused  to   the appellants before us by not formulating such a  substantial  question  of law.

Dismissing the appeal it is held as follows; " In the instant case, we have noticed that substantial  question  of  law    was framed by the High Court  before  the  hearing  took  place  and  the    appellants were put on notice and after  giving  an  opportunity  to  the    appellants to meet the question, second appeal was decided  by  the  High    Court. Therefore, in our opinion no prejudice  has  been  caused  to  the appellants".

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