'Not Necessary To Hear Respondents While Admitting Second Appeal Under CPC': Bombay High Court

The Aurangabad Bench of the Bombay High Court has held that it is not necessary to hear the respondents at the time of admission of the second appeal filed under Section 100 of the Civil Procedure Code (CPC).

Justice Vibha Kankanwadi observed that first, the Court has to see if the appeal raises substantial questions of law. It is only thereafter that the appeal can be admitted and notices need to be issued to the respondents.

The observation was made while relying on the decision Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015), where the Supreme Court laid down the following procedure to be observed at the time of hearing a second appeal:

(i) On the day when the second appeal is listed for hearing on admission, if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law ;

(ii) In cases where the High Court, after hearing the appeal, is satisfied that the substantial question of law is involved, it shall formulate that question, and then the appeal shall be heard on those substantial questions of law, after giving notice and opportunity of hearing to the respondent ;

(iii) In no circumstances the High Court can reverse the judgment of the Trial Court and the First Appellate Court without formulating the substantial question of law and complying with the mandatory requirements of section 100, Civil Procedure Code.

Accordingly, the High Court observed,

"It is not necessary to hear the respondents at the time of admission of the second appeal. If this Court comes to the conclusion that substantial questions of law are raised as contemplated under Section 100 of the Code of Civil Procedure, the appeal can be admitted and then only the notice is required to be issued to the respondents."

The development comes in a second appeal filed in pursuance to an initial suit for possession. After perusing the facts and background of the case, the Court was of the opinion that substantial questions of law as contemplated under Section 100 of CPC are arising in this case requiring admission of the second appeal.

Hence, it proceeded to frame five questions of law and passed a direction for issuance of notice to the Respondents concerned.

Case Title: Prakash Dattatray Kotambe & Ors v. Uttam Ramji Kotambe (Lad) & Ors.

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