SMT. NAMITA SEN Vs. NIKHIL DEY

JUDGEMENT

(1.) - At the time of admission of the appeal, the Division Bench did not formulate any substantive question of law. At the time of hearing Sri Roychowdhury, the Senior Counsel appearing for the appellant, sought to formulate such point when Mr. Banerjee appearing for the respondents opposed such attempt by arguing that this Court has no jurisdiction to hear the appeal as the same in non est in the eye of law. According to Mr. Banerjee under Sec. 100 of Civil Procedure Code, such point have to be formulated at the time of admission of the appeal and this Court can formulate any other substantive question of law not formulated by it, if it is satisfied that the case involves such question.

(2.) It is necessary to set the Sec. for convenience. It lays down :

(3.) The key note of the Sec. is that a Second Appeal can only be heard if the Court is satisfied that substantial question of law is involved. The admission of appeal by the Division Bench itself indicates that the Court was prima facie satisfied about the existence of substantial question of law being involved in the case. True, it is that the same was not expressly formulated. It is difficult to concede to argument of Mr. Banerjee. In my humble opinion, if such questions were not formulated by the Division Bench at the time of admission of appeal on hearing the appellant ex parte the Court at the time of hearing in the presence of both the sides must have jurisdiction to formulate the same on hearing both the sides, otherwise the appeal has to be either dismissed without hearing the parties although the same was admitted by the Division Bench for hearing or the appeal has to be sent back to the Chief Justice for assignment to the appropriate Bench once again for formulation of such questions. Such procedure cannot further the ends of Justice. If the substantive questions of law are formulated on hearing both the sides nobody can claim to be prejudiced by such formulation which, in my opinion, would be a sufficient compliance with the provision of Sec. 100 C.P.C. I, therefore, rejected the contention of Mr. Banerjee and heard the appeal by formulating such substantive question of law on hearing both the sides.