SONIBAI Vs. BANSILAL JAINARAYAN SARD

JUDGEMENT

(1.) Heard.

(2.) At the threshold, controversy arose to the extent, whether the respondent/caveator can be heard at the initial stage of the second appeal? The learned Counsel for appellant would submit that the scheme under Section 100 of the Code of Civil Procedure (herein after referred to as 'the Code') no where contemplates a stage to hear respondent even before formulating substantial question of law. According to him, after hearing appellant, it is for the satisfaction of the Court about existence of substantial questions of law, in which respondent has no role. The learned counsel for appellant would submit that in terms of Sub-clause (5) of Section 100 the of the Code, after issuance of notice, the respondent would get jurisdiction to advance submission to resist the appeal on the questions so formulated by the Court.

(3.) As against this, the learned counsel for respondent submitted that there is no prohibition in the Code so as to deny right of hearing to respondent at initial stage of the appeal. According to him, at initial stage, while entertaining second appeal, the Court has to formulate substantial questions of law before issuance of notice to the respondent. At this stage also respondent can assist the Court about existence or non-existence of substantial questions of law. He has also referred the commentary on the Code of Civil Procedure by Shri Justice C. K. Thakkar, Judge, Supreme Court of India (Retd.), First Edition 2012, Volume 6 pertaining to the admission of second appeal. It is his contention that the very legislative intention is to weed out uncalled second appeals at the initial stage.