REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.               OF 2008 (Arising out of S.L.P. (C) No.11713 of 2007)

Dharam Singh …Appellant

Vs.

Karnail Singh and Ors. …Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.   

1. Leave granted.     

2. Challenge in this appeal is to the judgment of a learned

Single Judge of the Punjab and Haryana High Court allowing the second

appeal filed in terms of Section 100 of the Code of Civil Procedure,

1908  (in  short  ‘the  Code’).  The  second  appeal  was  filed  by  the

respondents  before  the  High  Court  questioning  correctness  of  the

judgment  and  decree  dated 25.10.1999  passed  by  learned  Additional

District Judge, Ropar.  The learned Additional District Judge had

dismissed the appeal against the judgment and decree dated 25.09.1997 1

passed by learned Civil Judge (Senior Division), Kharar, vide which

the Suit of the present appellant, who was the defendant in the Suit

was decreed.  The Suit was filed for a declaration to the effect that

plaintiff  had  become  owner  of  the  suit  property  by  way  of

extinguishment  of  equity  of  redemption  qua  the  rights  of  the

defendants and further with consequential relief of restraining the

defendants from transferring the suit property in favour of any body,

as detailed in the head note of the plaint. The respondents contested

the suit and filed written statements. Four issues were framed and

evidence was laid.  After considering the evidence brought on record,

learned  Additional  Civil  Judge  (Senior  Division),  Kharar,  vide

judgment and decree dated 25.09.1997 decreed the Suit. Aggrieved by

the  said  judgment  and  decree,  appeal  was  filed  before  the  First

Appellate Court, which was dismissed by learned Additional District

Judge by judgment and decree dated 25.10.1999.

3. As noted above, the defendants filed the second appeal.  By

the  impugned  judgment, the High  Court allowed the  appeal and set

aside the judgments and decrees of the courts below and the Suit was

dismissed.   In  support  of  the  appeal,  learned  counsel  for  the

appellant  submitted  that  the  second  appeal  was  dismissed  without

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formulating any question of law, which is a mandatory requirement of

Section 100 of the CPC. Several other points on the merits of the

case were also urged.

4. In response, learned counsel for the respondents submitted

that  on  considering  the  memorandum  of  appeal  and  the  grounds

indicated therein, the High Court had allowed the second appeal and,

therefore,  there  was  nothing  wrong.   It  is  stated  that  after

considering the materials on record, the High Court had recorded its

findings that the suit deserves to be dismissed.      

5. It is further submitted that though no substantial question

of law was formulated before the Second Appeal was adjudicated, yet

that is permissible, because proviso to sub Section (5) of Section

100 of the Code permits the High Court to decide a second appeal on a

different  substantial  question  of  law  subject  to  recording  of

reasons.

6. Section  100  of  the  Code  deals  with  "second  appeal".  The

provision reads as follows:

"100 (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court

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from  every  decree  passed  in  appeal  by  any  court subordinate to the High Court, if the High Court is satisfied  that  the  case  involves  a  substantial question of law.

(2)  An  appeal  may  lie  under  this  section  from  an appellate decree passed ex-parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4)  Where  the  High  Court  is  satisfied  that  a substantial question of law is involved in any case, it shall formulate that question.

(5)  The  appeal  shall  be  heard  on  the  question  so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided  that  nothing  in  this  sub-section  shall  be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial  question  of  law,  not  formulated  by  it,  if  it  is satisfied that the case involves such question."

7. A perusal of the impugned judgment passed by the High Court

does  not  show  that  any  substantial  question  of  law  has  been

formulated or that the second appeal was heard on the question, if

any, so formulated. That being so, the judgment cannot be maintained.

8. In Ishwar Dass Jain v. Sohan Lal [2000 (1) SCC 434]  

this Court in para 10 has stated thus:

"10.  Now  under  Section  100  CPC,  after  the  1976 amendment,  it  is  essential  for  the  High  Court  to formulate a substantial question of law and it is not permissible  to  reverse  the  judgment  of  the  first appellate court without  doing so."

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9. Yet again in Roop Singh v. Ram Singh [2000 (3) SCC 708] this

Court has expressed that the jurisdiction of a High Court is confined

to appeals involving substantial question of law. Para 7 of the said

judgment reads:

"7. It is to be reiterated that under Section 100 CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure  questions  of  fact  while  exercising  its jurisdiction under Section 100 CPC.”

10. The position has been reiterated in Kanhaiyalal v. Anupkumar

[2003 (1) SCC 430].

11. In Chadat Singh v. Bahadur Ram and Ors. [2004 (6) SCC 359],

it was observed thus:

"6. In view of Section 100 of the Code the memorandum of appeal shall precisely state substantial question or questions involved in the appeal as required under Sub-section (3) of Section 100. Where the High Court is satisfied that in any case any substantial question of law is involved, it shall formulate that question under Sub-section (4) and the second appeal has to be heard on the question so formulated as stated in Sub- section (5) of Section 100."

12. The position was highlighted by this Court in Joseph Severane

and Others  v.  Benny Mathew and Others [2005 (7) SCC 667], Sasikumar

and Others v. Kunnath Chellappan Nair and Others [2005 (12) SCC 588]

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and in  Gian Dass v.  Gram Panchayat, Village Sunnder Kalan and Ors.

[2006 (6) SCC 271].

13. The plea about proviso to sub-section (5) of Section 100

instead of supporting the stand of the respondent rather goes against

them. The proviso is applicable only when any substantial question of

law has already been formulated and it empowers the High Court to

hear, for reasons to be recorded, the appeal on any other substantial

question of law. The expression "on any other substantial question of

law" clearly shows that there must be some substantial question of

law already formulated and then only another substantial question of

law which was not formulated earlier can be taken up by the High

Court  for reasons to be recorded, if it is of the view that the

case involves such question.

14. Under the circumstances, the impugned judgment is set aside,

we remit the matter to the High Court so far as it relates to Second

Appeal No.285 of 2000 for disposal in accordance with law. The appeal

is disposed of on the aforesaid terms with no order as to costs.      

...........................J. (Dr. ARIJIT PASAYAT)  

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...........................J. (J.M. PANCHAL)

New Delhi: October 13, 2008

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