REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.742 OF 2001

Narayanan Rajendran & Another .. Appellant

Versus

Lekshmy Sarojini & Others ..Respondent

J U D G M E N T

Dalveer Bhandari, J.

1. This appeal is directed against the judgment dated 23rd

March,  2000  passed  by  the  High  Court  of  Kerala  at

Ernakulam in Second Appeal No.518 of 1990  

2. The appellant is aggrieved by the order of the High Court

because the High Court in second appeal under section 100 of

Civil Procedure Code, 1908 reversed the concurrent findings

of the trial court and the first appellate court.  According to

the appellant, the second appeal did not involve any question

of law much less any substantial question of law warranting

interference by the High Court under section 100 of the Code

of Civil Procedure.

3. The facts which are necessary to dispose of the appeal

are recapitulated as under:

The  appellants  were  defendants  in  the  suit  and  the

respondents  were  the  plaintiffs.   The  plaintiffs  filed  a  suit

contending  that  the  property  in  question  is  a  subtarwad

property of defendant no.1 and, therefore, the members of the

subtarwad including the plaintiffs and defendants no.1 to 3

are  entitled  to  1/11  share  each  for  each  member  of  the

subtarwad under the customary law.  Defendant nos.1 to 3

and  defendant  nos.4  and  5  who  got  assignment  of  the

property for a valuable consideration from defendant nos.1 to

3 contended that the suit property is the personal property of

defendant no.1 who has exclusive right of title and possession

ever  since  1103  M.E.  under  registered  settlement  deed

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executed  by the grandfather  and grandmother  of  defendant

no.1, therefore, the suit property is not partible.  

4. Both the trial court as well as the first appellate court

concurrently  found  that  defendant  no.1  has  exclusive  right

and possession over the suit property and that the plaintiffs

have  failed  to  prove  that  the  suit  property  is  subtarwad

property or that the parties  are governed by the customary

marumakkathayam  law.   The  court  further  held  that  the

burden  is  on  the  plaintiffs  to  prove  the  customary  law  is

applicable which the plaintiffs have failed to prove. On  the

other hand, several documents executed in the family of the

parties prove that the parties are governed by makkathayam

law.

5. In  the  impugned  judgment,  the  High  Court  on  re-

appreciation  of  the  evidence  in  the  case  reversed  the

concurrent findings of the courts below and held that the suit

property  is  the  subtarwad  property  and  the  parties  are

governed  by  ezhava  marumakkathayam  customary  law.

According to the appellants, the findings of the High Court are

wholly unsustainable.  The burden of proof of the customary

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law is upon the person who alleges it.  In the instant case, the

respondents who were the plaintiffs before the trial court have

clearly failed to prove the customary law.  On the other hand,

the trial court and the first appellate court on evidence found

that the parties are following makkathayam system and not

marumakkathayam  system.   Under  the  marumakkathayam

law, every member is entitled to one share in the property.

The law of succession and inheritance followed by the parties

is makkathayam law.

6. The trial court on the documents and evidence on record

framed the following issues:  

i. Whether the suit is maintainable?

ii. Whether  the  Munsiff’s  Court  has  pecuniary jurisdiction to try this suit?

iii. Whether the plaintiffs have paid proper court fees?

iv. Whether  the  plaint  schedule  property  is  the subtarwad property of plaintiffs and defendants 1 to 3?

v. Whether the plaintiffs  are  entitled to get  share in the plaint schedule property and if so, what is the share due to the plaintiffs?

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vi. Whether  defendants  4  and  5  have  done  any improvements in the property and if so what is the quantum thereof?

vii. Whether the plaintiffs are entitled to get any mesne profits and if so, what is its extent?

viii. Reliefs and Costs?

Additional

ix. Are  plaintiffs  and  defendants  1  to  3 Marumakkathayee Ezhavas?  Are they governed by Marumakkathayam law?

7. According  to  the  trial  court,  issues  no.(iv),  (v)  and  (ix)

were main issues and they were decided together.  The trial

court  came  to  the  conclusion  that  the  plaintiffs  have  not

proved  that  they  are  Marumakkathayee  ezhavas.   The

defendants  have  succeeded  in showing  that  the  parties  are

governed by makkathayam law and that the plaint schedule

property  is  not  the  subtarwad  property  as  claimed  by  the

plaintiffs.  This necessarily follows that the plaintiffs are not

entitled  to  claim  partition  and  get  any  share  in  the  plaint

property.   The  issues,  therefore,  were  found  accordingly

against the plaintiffs and in favour of the defendants holding

that  the  plaint  schedule  property  is  not  the  subtarwad

property of the plaintiffs and defendant nos.1 to 3 and they

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are not  Marumakkathayee  ezhavas  and hence  the plaintiffs

are not entitled to get any share in the said property.

8. The  first  appellate  court  also  comprehensively  re-

evaluated and re-examined the entire evidence on record and

came to the conclusion that the evidence led by the side of the

plaintiffs  is  not  convincing  and  reliable  to  uphold  the  case

advanced by the plaintiffs and on the other hand, the evidence

pointed out by the defendants would lead to the inference that

the parties are makkathayee ezhavas.  Therefore, there is no

reason  to  interfere  with  the  reasoning  and  findings  of  the

lower  court  that  the  parties  are  governed  by makkathayam

system of inheritance, that there exists no subtarwad property

of  plaintiffs  and  defendant  nos.1  to  3  and  as  such  the

plaintiffs are not entitled to get any share in the suit property.

The  first  appellate  court  upheld  the  judgment  and  decree

passed by the trial court.

9. The  appellants  aggrieved  by  the  judgment  of  the  trial

court  and  the  first  appellate  court  preferred  second  appeal

before the High Court.

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10. In  the  impugned  judgment,  while  setting  aside  the

concurrent  findings  of  fact,  the  High  Court  observed  that

“parties to the suit being persons residing in Kollam District

and  the  property  over  which  they  claim  right  also  being

situated  in  Kollam  District,  they  were  following  misravazhi

system of inheritance which was essentially the principles of

Marumakkathayam system of inheritance with modifications

recognized by judicial pronouncement”.   

11. The entire basis of the aforesaid finding of the High Court

is  without  any  basis  and  unsustainable  in  law.   It  is

astonishing how the person residing  in a  particular district

would be governed by misravazhi system of inheritance.  The

customary laws cannot be applied on the yardstick as adopted

by the High Court.

12. The  appellants  submitted  that  it  is  the  settled  legal

position that the burden of proof was on the plaintiffs to prove

that  they  are  governed  by  the  customary  law  of

marumakkathayam  law  of  inheritance  which  the  plaintiffs

have failed to prove.

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13. The appellants are seriously aggrieved by the judgment

of the High Court.  According to them, the High Court was in

error in interfering with the findings of the fact of the courts

below,  particularly  when the  second  appeal  did  not  involve

any question of law much less than any substantial question

of law.

14. The  counsel  for  the  plaintiffs  placed  reliance  on  the

judgment  of  this  court  in  Radha Amma & Another  v.  C.

Balakrishnan Nair & Others (2006) 8 SCC 546 dealing with

marumakkathayam law.  The court observed as under:

“12. So far as the first submission is concerned it is not  disputed  before  us  that  the  question  as  to whether  those  items,  namely,  Items  8  to  16 belonged  to  the  puthravakasam  thavazhi,  never arose for consideration in the suit or in the appeal. Defendant  2  never  raised  such  a  plea.  No  such issue  was  framed.  Neither  any  evidence  was recorded on this aspect of the matter, nor were the courts  called  upon  to  record  a  finding  on  that question.  This  position  is  not  disputed  by  the counsel appearing for the respondents. If  such be the  legal  and  factual  position,  we  find  no justification for the High Court to interfere in appeal and  modify  the  decree  of  the  courts  below  on  a question which did not arise for its consideration…. ”

15. Similarly, in the instant case, the High Court set aside

the  concurrent  findings  of  fact  of  the  courts  below  on  the

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ground that the parties to the suit being persons residing in

Kollam district and the property over which they claim right

also  being  situated  in  Kollam  district,  they  were  following

misravazhi  system of  inheritance  which  was  essentially  the

principles of marumakkathayam system of inheritance.  This

was not the case of either of the parties.  No documents were

filed.  No evidence was led. No issues were framed by the trial

court. Therefore, the High Court was clearly in error in setting

aside the concurrent findings of fact on virtually non-existent

material.   According  to  the  appellants,  the  impugned

judgment is liable to be set aside and the findings of the trial

court and as affirmed by the first appellate court are liable to

be restored.

16. In Gurdev Kaur and Others v. Kaki and Others (2007)

1 SCC 546 in which one of us (Bhandari, J.) was party to that

judgment  crystallized  the  entire  legal  position  but

unfortunately even thereafter in the number of cases it  has

come to our notice that the law declared by this court is not

followed in a large number of cases by the High Courts.  Once

again  we  are  making  serious  endeavour  to  recapitulate  the

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legal position with the fond hope that the High Courts would

keep in mind the legal position before interfering in a case of

concurrent findings of facts arrived at by the trial court and

upheld by the first appellate court.

17. Section  100  of  the  Code  of  Civil  Procedure,  1908  (for

short,  C.P.C.)  corresponds  to  Section  584  of  the  old  Civil

Procedure  Code  of  1882.   The  Section  100  (prior  to  1976

amendment) reads as under:

“100.  Second  appeal –  (1)  “Save  where  otherwise 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 a High Court on any of the following grounds, namely :

(a)  the decision being contrary to law or to some usage having the force of law;

(b) the decision having failed to determine some material  issue of law or usage having the force of law;

(c) a substantial error or defect  in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.

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

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18.  A  reference  of  series  of  cases  decided  by  the  Privy

Council  and this court would reveal true import, scope and

ambit of Section 100 C.P.C.

Cases decided prior to 1976 amendment both by the Privy Council and the Supreme Court dealing with the scope of Section 100 C.P.C.

19. The  Privy  Council,  in  Luchman v.  Puna [(1889)  16

Calcutta  753 (P.C.)],  observed  that  a second  appeal  can lie

only  on  one  or  the  other  grounds  specified  in  the  present

section.

20. The Privy Council,  in another case  Pratap Chunder v.

Mohandranath [(1890)  ILR  17  Calcutta  291  (P.C.)],  the

limitation as to the power of the court imposed by sections

100 and 101 in a second appeal ought to be attended to, and

an appellant ought not to be allowed to question the finding of

the first appellate court upon a matter of fact.

21. In  Durga Chowdharani v.  Jawahar Singh (1891)  18

Cal 23 (PC), the Privy Council held that the High Court had no

jurisdiction  to  entertain  a  second  appeal  on  the  ground  of

erroneous  finding of  fact,  however  gross  or  inexcusable  the

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error may seem to be.  The clear declaration of law was made

in the said judgment as early as in 1891.  This judgment was

followed  in  the  case  of  Ramratan  Shukul v.  Mussumat

Nandu (1892) 19 Cal 249 (252) (PC) and many others.  The

court observed:

“It has now been conclusively settled that the third  court...cannot  entertain  an  appeal  upon question as to the soundness of findings of fact by the  second  court,  if  there  is  evidence  to  be considered,  the  decision  of  the  second  court, however  unsatisfactory  it  might  be  if  examined, must stand final.”

22. In the case of Ram Gopal v. Shakshaton [(1893) ILR 20

Calcutta  93  (P.C.)],  the  court  emphasized  that  a  court  of

second appeal is not competent to entertain questions as to

the soundness of a finding of facts by the courts below.

23. The same principle has been reiterated in Rudr Prasad

v.  Baij  Nath [(1893)  ILR  15  Allahabad  367].    The  court

observed  that  a  judge  to  whom a  memorandum  of  second

appeal  is  presented  for  admission  is  entitled  to  consider

whether any of the grounds specified in this section exist and

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apply  to  the  case,  and  if  they  do  not,  to  reject  the  appeal

summarily.   

24. Similarly, before amendment in 1976, this court also had

an occasion to examine the scope of Section 100 C.P.C..  In

Deity Pattabhiramaswamy v.  S. Hanymayya and Others

[AIR  1959 SC 57],  the  High Court  of  Madras  set  aside  the

findings  of  the  District  Judge,  Guntur,  while  deciding  the

second appeal.  This court observed that notwithstanding the

clear and authoritative pronouncement of the Privy Council on

the limits and the scope of the High Court’s jurisdiction under

section 100,  Civil  Procedure Code,  “some learned Judges of

the High Courts are disposing of Second Appeals as if they

were first appeals.  This introduces, apart from the fact that

the High Court assumes and exercises a jurisdiction which it

does  not  possess,  a  gambling  element  in  the  litigation  and

confusion in the mind of the litigant public.  This case affords

a typical  illustration of such interference by a Judge of  the

High Court in excess  of  his jurisdiction under  Section 100,

Civil Procedure Code.  We have, therefore, no alternative but

to  set  aside  the  judgment  of  the High Court  which had no

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jurisdiction to interfere in second appeal with the findings of

fact  arrived  at  by  the  first  appellate  court  based  upon  an

appreciation of the relevant evidence.

25. In  M. Ramappa v.  M. Bojjappa [(1963) SCR 673],  the

Andhra  Pradesh  High  Court  interfered  with  the  finding

recorded  by  the  Appellate  Court  which,  in  turn,  had  itself

reversed the trial court’s finding on the same question of fact.

While setting aside the decree of the second Appellate Court,

this court observed:

“It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact  recorded  by  courts  of  fact,  but  on  such occasions it is necessary to remember that what is administered in courts  is  justice  according to law and considerations of fair play and equity however important  they  may  be,  must  yield  to  clear  and express  provisions  of  the  law.   If  in  reaching  its decisions  in  second  appeals,  the  High  Court contravenes the express provisions of section 100, it would  inevitably  introduce  in  such  decisions  an element  of  disconcerting  unpredictability  which is usually  associated  with  gambling;  and  that  is  a reproach  which  judicial  process  must  constantly and scrupulously endeavour to avoid.”

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26. It may be pertinent to mention that as early as in 1890

the Judicial Committee of the Privy Council stated that there

is no jurisdiction to entertain a second appeal on the ground

of an erroneous finding of fact, however, gross or inexcusable

the error may seem to be and they added a note of warning

that  no  Court  in  India  has  power  to  add,  or  enlarge,  the

grounds  specified  in  Section  100  of  the  Code  of  Civil

Procedure.

27. Even before the amendment, interference under Section

100 C.P.C. was limited, which has now been further curtailed,

which we would be dealing in cases decided by this court after

the amendment.   

28. We  have  given  reference  of  a  large  number  of  cases

decided  by  the  Privy  Council  and  this  court  to  clearly

understand  the  ambit  and  scope  of  Section  100  before

amendment.   

29. The  Amendment  Act  of  1976  has  introduced  drastic

changes  in  the  scope  and  ambit  of  Section  100  C.P.C.   A

second appeal  under Section 100 C.P.C. is now confined to

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cases where a question of law is involved and such question

must be a substantial one.  Section 100, as amended, 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 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.”

Cases decided after 1976 amendment

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30. In  Bholaram v.  Amirchand (1981) 2 SCC 414 a three-

Judge Bench of this court reiterated the statement of law.  The

High Court, however, seems to have justified its interference

in second appeal mainly on the ground that the judgments of

the  courts  below  were  perverse  and  were  given  in  utter

disregard of the important materials on the record particularly

misconstruction of the rent note.  Even if we accept the main

reason given by the High Court the utmost that could be said

was that the findings of fact by the courts below were wrong or

grossly  inexcusable  but  that  by  itself  would  not  entitle  the

High Court to interfere in the absence of a clear error of law.

31. In  Kshitish  Chandra  Purkait v.  Santosh  Kumar

Purkait [(1997) 5 SCC 438], a three judge Bench of this court

held: (a) that the High Court should be satisfied that the case

involved a substantial question of law and not mere question

of law; (b) reasons for permitting the plea to be raised should

also  be  recorded;  (c)  it  has  the  duty  to  formulate  the

substantial questions of law and to put the opposite party on

notice and give fair and proper opportunity to meet the point.

The  court  also  held  that  it  is  the duty  cast  upon  the  High

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Court to formulate substantial question of law involved in the

case even at the initial stage.   

32. This court had occasion to determine the same issue in

Dnyanoba Bhaurao Shemade v.  Maroti Bhaurao Marnor

(1999) 2 SCC 471.  The court stated that the High Court can

exercise its jurisdiction under Section 100 C.P.C. only on the

basis of substantial questions of law which are to be framed at

the time of admission of the second appeal  and the second

appeal has to be heard and decided only on the basis of the

such duly framed substantial questions of law.   

33. A mere look at the said provision shows that the High

Court can exercise its jurisdiction under Section 100 C.P.C.

only on the basis of substantial questions of law which are to

be framed at the time of admission of the second appeal and

the second appeal has to be heard and decided only on the

basis of such duly framed substantial questions of law.  The

impugned  judgment  shows  that  no  such  procedure  was

followed by the learned Single Judge.  It is held by a catena of

judgments  by  this  court,  some  of  them  being,  Kshitish

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Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438

and Sheel Chand v. Prakash Chand (1998) 6 SCC 683 that the

judgment  rendered  by  the  High  Court  under  Section  100

C.P.C.  without  following  the  aforesaid  procedure  cannot  be

sustained.  On this short ground alone, this appeal is required

to be allowed.

34. In  Kanai Lal Garari v.  Murari Ganguly (1999) 6 SCC

35 the court has observed that it is mandatory to formulate

the substantial question of law while entertaining the appeal

in  absence  of  which  the  judgment  is  to  be  set  aside.   In

Panchugopal  Barua  v.  Umesh  Chandra  Goswami  (1997)  4

SCC 713 and Santosh Hazari v. Purushottam Tiwari (2001) 3

SCC 179 the court  reiterated the statement of  law that the

High Court cannot proceed to hear a second appeal without

formulating the substantial question of law.  These judgments

have been referred to in the later judgment of K. Raj and Anr.

v. Muthamma (2001) 6 SCC 279.  A statement of law has been

reiterated regarding the scope and interference of the court in

second  appeal  under  Section  100  of  the  Code  of  Civil

Procedure.

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35. In  Ishwar Dass Jain v.  Sohan Lal  (2000) 1 SCC 434,

this court in para 10, has stated:

“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.”

36. 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. That apart, at  the  time  of  disposing  of  the  matter  the  High Court  did  not  even  notice  the  question  of  law formulated  by  it  at  the  time  of  admission  of  the second appeal as there is no reference of it in the impugned judgment….”

37. Again  in  Santosh  Hazari v.  Purushottam  Tiwari

(deceased)  by LRs. (2001) 3 SCC 179, another three-Judge

Bench of this court correctly delineated the scope of Section

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100 C.P.C..  The court observed that an obligation is cast on

the appellant to precisely state in the memorandum of appeal

the  substantial  question  of  law  involved  in  the  appeal  and

which the appellant proposes to urge before the court.  In the

said judgment, it was further mentioned that the High Court

must be satisfied that a substantial question of law is involved

in the case and such question has then to be formulated by

the High Court.  According to the court the word substantial,

as qualifying “question of law”, means – of having substance,

essential, real, of sound worth, important or considerable.  It

is to be understood as something in contradistinction with –

technical,  of  no  substance  or  consequence,  or  academic

merely.  However, it is clear that the legislature has chosen

not  to qualify  the scope  of  “substantial  question of  law” by

suffixing the words “of general importance” as has been done

in many other provisions such as Section 109 of the Code of

Article 133(1) (a) of the Constitution.

38. In  Kamti Devi (Smt.) and Anr. v.  Poshi Ram (2001) 5

SCC 311 the court came to the conclusion that the finding

thus reached by the  first appellate court cannot be interfered

21

with  in  a  second  appeal  as  no  substantial  question  of  law

would have flowed out of such a finding.

39. In  Thiagarajan v.  Sri  Venugopalaswamy  B.  Koil

[(2004) 5 SCC 762], this court has held that the High Court in

its jurisdiction under Section 100 C.P.C. was not justified in

interfering with the findings of fact.  The court observed that

to  say  the  least  the  approach  of  the  High  Court  was  not

proper.  It is the obligation of the courts of law to further the

clear  intendment  of  the  legislature  and  not  frustrate  it  by

excluding the same.  This court in a catena of decisions held

that where findings of fact by the lower appellate Court are

based on evidence, the High Court   in second appeal cannot

substitute  its  own  findings  on  reappreciation  of  evidence

merely on the ground that another view was possible.    

40. In  the  same  case,  this  court  observed  that  in  a  case

where special  leave petition was filed against a judgment of

the High Court interfering with findings of  fact of the lower

appellate court.  This court observed that to say the least the

approach  of  the  High  Court  was  not  proper.   It  is  the

obligation of the courts of law to further the clear intendment

22

of the legislature and not frustrate it by excluding the same.

This  court  further  observed  that  the  High  Court  in  second

appeal cannot substitute its own findings on reappreciation of

evidence merely on the ground that another view was possible.

41. This  court  again  reminded  the  High  Courts  in

Commissioner,  Hindu  Religious  &  Charitable

Endowments v. P. Shanmugama [(2005) 9 SCC 232] that the

High Court has no jurisdiction in second appeal to interfere

with the finding of facts.

42. Again, this court in the case of State of Kerala v. Mohd.

Kunhi [(2005) 10 SCC 139] has reiterated the same principle

that  the  High  Court  is  not  justified  in  interfering  with  the

concurrent findings of fact.   This court observed that, in doing

so, the High Court has gone beyond the scope of Section 100

of the Code of Civil Procedure.

43. Again, in the case of Madhavan Nair v. Bhaskar Pillai

[(2005) 10 SCC 553], this court observed that the High Court

was not justified in interfering with the concurrent findings of

fact.  This court observed that it is well settled that even if the

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first appellate court commits an error in recording a finding of

fact, that itself will not be a ground for the High Court to upset

the same.    

44. Again,  in  the  case  of  Harjeet  Singh v.  Amrik Singh

[(2005) 12 SCC 270], this court with anguish has mentioned

that the High Court has no jurisdiction to interfere with the

findings of fact arrived at by the first appellate court.   In this

case,  the findings of  the trial  court and the lower appellate

court  regarding  readiness  and  willingness  to  perform  their

part  of  contract  was  set  aside  by  the  High  Court  in  its

jurisdiction  under  Section  100  C.P.C.   This  court,  while

setting aside the judgment of the High Court, observed that

the  High  Court  was  not  justified  in  interfering  with  the

concurrent findings of fact arrived at by the courts below.

45. In the case of H. P. Pyarejan v. Dasappa [(2006) 2 SCC

496] delivered on 6.2.2006, this court found serious infirmity

in the judgment of the High Court.  This court observed that it

suffers from the vice of exercise of jurisdiction which did not

vest in the High Court.   Under Section 100 of the Code (as

24

amended in 1976) the jurisdiction of the court to interfere with

the judgments of the courts below is confined to hearing of

substantial questions of law.   Interference with the finding of

fact  by  the  High  Court  is  not  warranted  if  it  invokes

reappreciation  of  evidence.   This  court  found  that  the

impugned  judgment  of  the  High  Court  was  vulnerable  and

needed to be set aside.

46. In  Chandrika  Singh  (Dead)  by  LRS  &  Another  v.

Sarjug Singh & Another (2006) 12 SCC 49, this court again

reiterated legal position that the High Court under section 100

CPC has  limited  jurisdiction.   To  deal  with cases  having  a

substantial question of law, this court observed as under:

“12. …  While  exercising  its  jurisdiction  under Section 100 of the Code of Civil Procedure, the High Court  is  required  to  formulate  a  substantial question of law in relation to a finding of fact.  The High Court exercises a limited jurisdiction in that behalf.   Ordinarily unless there exists a sufficient and cogent reason, the findings of fact arrived at by the courts below are binding on the High Court…”

47. In Chacko & Another v. Mahadevan (2007) 7 SCC 363,

while  dealing  with  the  jurisdiction  of  sections  96  and  100

CPC, this court laid down as under:

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“6. It may be mentioned that in a first appeal filed under Section 96 CPC, the appellate court can go into questions of fact, whereas in a second appeal filed under Section 100 CPC the High Court cannot interfere  with  the  findings  of  fact  of  the  first appellate court, and it is confined only to questions of law.”

48. In  Bokka  Subba  Rao  v.  Kukkala  Balakrishna  &

Others (2008) 3 SCC 99, this court has clearly laid down that

without  formulating  substantial  questions  of  law  under

section  100  CPC,  the  High  Court  cannot  interfere  with  the

findings of fact.  The court laid down as under:  

“4. …  It  is  now  well  settled  by  a  catena  of decisions  of  this  Court  that  the  High  Court  in second appeal, before allowing the same, ought to have  formulated  the  substantial  questions  of  law and thereafter, to decide the same on consideration of such substantial questions of law … .”

49. In  Nune  Prasad  &  Others  v.  Nune  Ramakrishna

(2008)  8 SCC 258, this court laid down that the legislature

has conferred a limited jurisdiction under section 100 CPC on

the  High  Court  to  deal  with  the  cases  where  substantial

question of law is involved.   

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50. In  Basayyal  Mathad  v.  Rudrayya  S.  Mathad  &

Others  (2008)  3  SCC  120,  this  court  has  held  that

interference  by  the  High  Court  without  framing  substantial

question of law is clearly contrary to the mandate of section

100 CPC.

51. In Dharam Singh v. Karnail Singh & Others, (2008) 9

SCC 759, this court again crystallized the legal position in the

following words:

“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.”

52. In Narendra Gopal Vidyarthi v. Rajat Vidyarthi, 2008

(16)  SCALE 122,  this  court  laid  down that  the  High  Court

would be justified to interfere under section 100 CPC only if it

involves substantial question of law.  

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53. In  a  recent  judgment  U.R.  Virupakshaiah  v.

Sarvamma & Another,  2009 (1) SCALE 89, this court has

once  again  crystallized  the  legal  position  after  1976

Amendment of the CPC.  The court observed as under:

“The Code of Civil  Procedure was amended in the year  1976  by  reason  of  Code  of  Civil  Procedure (Amendment)  Act,  1976.  In  terms  of  the  said amendment, it is now essential for the High Court to  formulate  a  substantial  question  of  law.  The judgments of the trial court and the First Appellate Court can be interfered with only upon formulation of a substantial question of law…”

Legislative  Background  in  the  54  th   Report  of  the  Law   Commission of India submitted in 1973:

54. The comprehensive 54th Report of the Law Commission of

India  submitted  to  the  Government  of  India  in  1973  gives

historical  background regarding ambit  and scope  of  Section

100 C.P.C.  According to the said report, any rational system

of administration of civil law should recognize that litigation in

civil cases should have two hearings on facts – one by the trial

court and one by the court of appeal.

55. In the 54th Report of the Law Commission of India, it is

incorporated  that it  may be permissible  to point  out  that a

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search  for  absolute  truth  in  the  administration  of  justice,

however, laudable, must in the very nature of things be put

under some reasonable restraint.  In other words, a search for

truth has to be reconciled with the doctrine of finality.   In

judicial hierarchy finality is absolutely important because that

gives certainty  to the law.   Even in the  interest  of  litigants

themselves  it  may  not  be  unreasonable  to  draw  a  line  in

respect  of  the  two  different  categories  of  litigation  where

procedure  will  say at  a  certain  stage  that  questions  of  fact

have been decided by the lower courts and the matter should

be allowed to rest where it  lies without any further appeal.

This may be somewhat harsh to an individual litigant; but, in

the larger interest of the administration of justice, this view

seems to us to be juristically sound and pragmatically wise.  It

is in the light of this basic approach that we will now proceed

to consider some of the cases which were decided more than a

century ago.

56. The question could perhaps be asked,  why the litigant

who wishes to have justice from the highest Court of the State

should  be  denied  the  opportunity  to  do  so,  at  least  where

29

there is a flaw in the conclusion on facts reached by the trial

court or by the court of first appeal.  The answer is obvious

that even litigants have to be protected against too persistent

a pursuit of their goal of perfectly satisfactory justice.    An

unqualified  right  of  first  appeal  may  be  necessary  for  the

satisfaction of the defeated litigant; but a wide right of second

appeal is more in the nature of a luxury.   

57. The  rational  behind  allowing  a  second  appeal  on  a

question of law is, that there ought to be some tribunal having

jurisdiction  that  will  enable  it  to  maintain,  and,  where

necessary,  re-establish, uniformity throughout the State on

important legal issues, so that within the area of the State, the

law, in so far as it is not enacted law, should be laid down, or

capable of being laid down, by one court whose rulings will be

binding  on  all  courts,  tribunals  and  authorities  within  the

area over  which it  has jurisdiction.   This  is  implicit  in any

legal system where the higher courts have authority to make

binding decisions on questions of law.

58. It  may  be  relevant  to  recall  the  statement  of  Douglas

Payne on “Appeals on Questions of Fact” reported in (1958)

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Current  Legal  Problem  181.    He  observed  that  the  real

justification  for  appeals  on questions  of  this  sort  is  not  so

much that the law laid down by the appeal court is likely to be

superior  to  that  laid  down  by  a  lower  court  as  that  there

should be a final rule laid down which binds all future courts

and so facilitates the prediction of the law.  In such a case the

individual litigants are sacrificed, with some justification, on

the  altar of  law-making  and must  find such consolation  as

they can in the monument of a leading case.

Historical Perspective:

59. The  predecessors  of  the  High  Courts  in  their  civil

appellate  jurisdiction  were  the  Sadar  Divani  Adalats.   The

right  of  appeal  to  the  Sadar  Divani  Adalat  was  very  wide

initially,  but  came to  be  severely  curtailed  in the  course  of

time.  The “Conwallis Scheme”, for example, made provision

for two appeals in every category of cases, irrespective of its

value.  By 1814, this was reduced to one appeal only.  Only in

cases of Rs.5,000 or over, there could be two appeals; one to

the Provincial Court of Appeal and second to the Sadar Divani

Adalat.  As Lord Hastings observed, -

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“The  facility  of  appeal  is  founded  on a most laudable principle of securing, by double and treble checks,  the  proper  decision  of  all  suits,  but  the utopian  idea,  in  its  attempt  to  prevent  individual injury from a wrong decision, has been productive of  general  injustice  by  withholding  redress,  and general inconvenience, by perpetuating litigation”.

Arrears:

60. The  primary  cause  of  the  accumulation  of  arrears  of

second  appeal  in  the  High  Court  is  the  laxity  with  which

second appeals are admitted without serious scrutiny of the

provisions of Section 100 C.P.C.  It is the bounden duty of the

High Court to entertain second appeal within the ambit and

scope of Section 100 C.P.C.

61. The  question  which  is  often  asked  is  why  should  a

litigant have the right of two appeals even on questions of law?

The  answer  to  this  query  is  that  in  every  State  there  are

number of District Courts and courts in the District cannot be

final arbiters on questions of law.  If the law is to be uniformly

interpreted and applied, questions of law must be decided by

the highest Court in the State whose decisions are binding on

all subordinate courts.

Rationale behind permitting second appeal on question of law:

32

62. The  rationale  behind  allowing  a  second  appeal  on  a

question of law is, that there ought to be some tribunal having

a  jurisdiction  that  will  enable  it  to  maintain,  and,  where

necessary,  re-establish,  uniformity  throughout  the  State  on

important legal issues, so that within the area of the State, the

law, in so far as it is not enacted law, should be laid down, or

capable of being laid down, by one court whose rulings will be

binding on all  courts,  tribunals   and authorities  within the

area over  which it  has jurisdiction.   This  is  implicit  in any

legal system where the higher courts have authority to make

binding decisions on question of law.

63. The analysis of cases decided by the Privy Council and

this  court  prior  to  1976  clearly  indicated  the  scope  of

interference  under  Section 100 C.P.C.  by this  Court.   Even

prior to amendment, the consistent position has been that the

courts  should  not  interfere  with  the  concurrent  findings  of

facts.

64. Now, after 1976 Amendment, the scope of Section 100

has been drastically curtailed and narrowed down.  The High

33

Courts  would  have  jurisdiction  of  interfering  under  Section

100 C.P.C. only in a case where substantial questions of law

are involved and those questions have been clearly formulated

in the memorandum of appeal.  At the time of admission of the

second appeal, it is the bounden duty and obligation of the

High Court to formulate substantial questions of law and then

only the High Court is permitted to proceed with the case to

decide  those  questions  of  law.    The  language  used  in the

amended  section  specifically  incorporates  the  words  as

“substantial  question  of  law”  which  is  indicative  of  the

legislative intention.  It  must be clearly understood that the

legislative  intention  was  very  clear  that  legislature  never

wanted second appeal to become “third trial on facts” or “one

more  dice  in  the  gamble”.   The  effect  of  the  amendment

mainly, according to the amended section, was:

(i) The High Court would be justified in admitting the  second  appeal  only  when  a  substantial question of law is involved;  

(ii) The  substantial  question  of  law  to  precisely state such question;  

(iii) A  duty  has  been  cast  on  the  High  Court  to formulate  substantial  question  of  law  before hearing the appeal;  

34

(iv) Another part of the Section is that the appeal shall be heard only on that question.

65. The  fact  that,  in  a  series  of  cases,  this  court  was

compelled  to  interfere  was  because  the  true  legislative

intendment and scope of Section 100 C.P.C. have neither been

appreciated nor applied.  A class of judges while administering

law honestly  believe  that,  if  they  are  satisfied  that,  in  any

second appeal brought before them evidence has been grossly

misappreciated either by the lower appellate court or by both

the courts  below,  it  is  their  duty to interfere,  because  they

seem  to  feel  that  a  decree  following  upon  a  gross

misappreciation  of  evidence  involves  injustice  and  it  is  the

duty of the High Court to redress such injustice.  We would

like  to  reiterate  that  the  justice  has  to  be  administered  in

accordance with law.

66. When  Section  100  C.P.C.  is  critically  examined  then,

according to the legislative mandate, the interference by the

High Court is permissible only in cases involving substantial

questions of law.

35

67. The Judicial Committee of the Privy Council as early as

in  1890  stated  that  there  is  no  jurisdiction  to  entertain  a

second appeal on the ground of an erroneous finding of fact,

however, gross or inexcusable the error may seem to be and

they added a note of warning that no Court in India has power

to add to, or enlarge, the grounds specified in Section 100.

68. The  High  Court  seriously  erred  in  interfering  with  the

findings of facts arrived at by the trial court and affirmed by

the first appellate court.

69. The scope  of interference by the High Court in second

appeal  under  section  100  CPC  after  1976  Amendment  is

strictly  confined  to  cases  involving  substantial  questions  of

law.  The High Court would not be justified in dealing with any

second appeal without first formulating substantial question

of law.

70. The legislative intention has been clearly spelt out in a

series of cases of this court.   In  Gurdev Kaur (supra), this

court exhaustively dealt with the cases before and after 1976

36

Amendment  of  CPC.   This  court  clearly  observed  that  the

scope  and  ambit  of  section  100  CPC  has  been  drastically

changed after the amendment.

71. It  is a matter of common experience in this court that

despite clear enunciation of law in a catena of cases of this

court, a large number of cases are brought to our notice where

the  High  Court  under  section  100  CPC  are  disturbing  the

concurrent findings of fact without formulating the substantial

question of law.  We have cited only some cases and these

cases can be easily multiplied further to demonstrate that this

court  is  compelled  to  interfere  in  a  large  number  of  cases

decided  by  the  High  Courts  under  section  100  CPC.

Eventually this court has to set aside these judgments of the

High Courts and remit the cases to the respective High Courts

for  deciding  them  de  novo after  formulating  substantial

question of law.  Unfortunately, several years are lost in the

process.  Litigants find it both extremely expensive and time

consuming. This is one of the main reasons of delay in the

administration of justice in civil matters.

37

72. We have once again undertaken this exercise and tried to

crystallize the legislative intention by referring to a number of

cases decided by this court with the hope that now the High

Courts  would  refrain  from  interfering  with  the  concurrent

findings  of  fact  without  formulating  substantial  question  of

law.

73. In this view of the clear legal position which emerges by

the  legislative  intention  and  ratio  of  the  judgments  of

aforementioned  cases,  the  impugned  judgment  of  the  High

Court is wholly unsustainable in law and is accordingly set

aside  and  consequently  the  findings  of  the  trial  court  as

upheld by the first appellate court are restored.  

74. Accordingly,  the  appeal  is  allowed.   In  the  facts  and

circumstances  of  the  case,  the  parties  are  directed  to  bear

their own costs.  

…….……………………..J.  (Dalveer Bhandari)

…….……………………..J.   (Harjit Singh Bedi)

38

New Delhi; February 12, 2009.

39