A Bench of Justice J.B.Pardiwala and Justice R. Mahadevan while dealing with an Appeal against an Interim Order passed by the High Court of Andhra Pradesh in a Second Appeal without any substantial Law having being framed in the said appeal has held that High Court cannot grant an interim order, without framing substantial question of law as required to be framed u/s.100 CPC. The Court further held that the High Court acquires jurisdiction to deal with the second appeal on merits only when it frames a substantial question of law. If no substantial question of law arises, the second appeal cannot be entertained and ought to be dismissed, as the jurisdiction of the High Court itself is not yet invoked.
While Noticing the practice that in some High Courts who order Notice of Motion, where even before an appeal is admitted, the respondents are granted opportunity to contest the case. The bench held that the High Court even in exercise of its inherent power u/s.151 CPC cannot grant interim orders unless the substantial question of law is framed. The said practice is in violation of express mandates in other provisions of the Code.
The Court Observed “As per Section 100, a High Court can proceed to hear a Second Appeal only if the case involves a substantial question of law, implying that when the appeal is taken up for admission, it must satisfy itself that a substantial question of law is involved. Thereafter, the High Court must frame such question and direct the parties to submit their arguments on such question. The scheme of the Code also enables the High Court to hear the parties on any other substantial question of law, not framed by it at the first hearing, but during the course of hearing for the reasons to be recorded. Again, if the court is not satisfied at the first hearing that the case does not involve a substantial question of law, it cannot proceed further. Once such additional question of law is framed during the course of hearing, the parties must be given opportunity to submit their arguments on the other substantial question of law(s). We take cognizance of the fact, that in some High Courts, there is a practice to order Notice of Motion, whereby even before an appeal is admitted, an opportunity is granted to the respondents therein to contest the case. In such a case, it is implied that the High Court is not satisfied prima facie with the case. Such dissatisfaction could be either for a reason that the case does not involve a substantial question of law or for a reason that in the facts of the case, the question of law, though substantial, would not warrant interference. In such cases, though the High Court in
exercise of its power under Section 151 of CPC is generally empowered to grant interim orders to preserve the subject matter of the dispute and to avoid multiplicity of proceedings, we are of the opinion, the court cannot grant any interim protection to the appellant, unless the substantial question of law is framed under Section 100 (4) or as per the Proviso. On the other hand, if the High Court is prima facie of the view that the substantial question of law involved would not require much time for disposal, the court is bound to frame the substantial question of law at the stage of admission and then order short notice. The High Court cannot use its inherent power under Section 151 in violation of the express mandates in other provisions of the Code.”
