K.K. KANNAN (D) BY LRS. v.

KOOLIVATHUKKAL KARIKKAN MANDI & ORS. (Civil Appeal No. 612 of 2003)

DECEMBER 10, 2009 [P. Sathasivam and Asok Kumar Ganguly, JJ.]

2009 (16 )  SCR 362

The Order of the Court was delivered  

ORDER  

Heard learned counsel for both sides.  

Legal  representatives  of  defendant  No.1  and  defendant  No.2  are  the  

appellants before us. Even at the outset, learned counsel appearing for the  

appellants  pointed  out  that  the  High Court  while  reversing the concurrent  

decisions of both the Courts below, committed an error in not adhereing the  

mandates prescribed in Section 100 of the Code of Civil  Procedure. Apart  

from the said contention, he also pointed out that the High Court went wrong  

in interfering with the factual decisions arrived at by both the Courts.

With regard to the first contention in para 3 of the impugned judgment, the  

High Court has merely referred the grounds A to F raised in the memorandum  

of  second  appeal  as  substantial  questions  of  law for  consideration.  After  

referring the same, the High Court without considering and formulating the  

substantial  question  of  law allowed the  second appeal  and  set  aside  the  

conclusion arrived at by the Courts below.  

It  is  useful  to refer  Section 100 of  the Code of  Civil  Procedure which  

reads as under:

“100.  Second appeal.-(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 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

(6) 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.”  

While considering the above provision this Court in series of decisions  

held that before entertaining the second appeal, the High Court has to satisfy  

that the case involves a substantial question of law. As per sub-section (3),  

the  memorandum  of  appeal  should  state  the  substantial  question  of  law  

involved in the second appeal. Sub-section (4) mandates that on satisfying  

that a substantial question of law is involved, the High Court should formulate  

the said question for consideration. As per sub-section (5), the High Court  

has to hear the question so formulated and take a decision one way or the  

other. (vide Kanhaiyalal & Ors. Versus Anupkumar & Ors., (2003) 1 SCC 430,  

Chadat Singh Versus Bahadur Ram & Ors., (2004) 6 SCC 359, Sasikumar &  

Ors. Versus Kunnath Chellappan Nair & Others, (2005) 12 SCC 588, Joseph  

Severance & Ors. Versus Benny Mathew & Ors., (2005) 7 SCC 667 and Gian  

Dass  Versus Gram Panchayat, Village Sunner Kalan &  

Ors., (2006) 6 SCC 271.

On going through the impugned order of the High Court, we are of the  

view that the High Court has not fulfilled the mandates as provided in Section  

100 C.P.C. The High Court has merely mentioned grounds A to F as stated in  

the memorandum of second appeal but has not formulated the question after  

satisfying that  a  substantial  question of  law involved in  that  appeal.  Mere  

reference to the grounds as stated in the memorandum of second appeal  

would not satisfy the mandates prescribed in Section 100 more particularly  

when  the High Court  allowed the second appeal  setting  aside concurrent  

decisions of the Courts below. In order to fulfill the conditions mentioned in  

Section 100 if the High Court is satisfied that the substantial question of law is  

involved, it is to formulate that question, then hear the second appeal on the  

question so formulated. In the event of formulating such question, it is also  

the duty of the Court to permit the respondent to argue that the case does not  

involve any such question. In the case on hand, such recourse has not been  

adopted by the High Court.  

We are satisfied that the procedure adopted by the High Court is not in accordance  

with Section 100 of the C.P.C. Without going into the merits of the claim made by  

both the parties, we set aside the impugned judgment of the High Court and remit the  

same for fresh disposal as indicated above. We make it clear that we have not  

expressed anything on the merits of the claim of both parties. We request the High  

Court to consider and pass fresh orders expeditiously. Both the appeals are allowed  

on the above terms. No costs.