REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1694-1695  OF 2009 (Arising out of SLP (C) Nos.17497-17498 of 2008)

Rameshwar Dayal Mangala  @ Ramesh Chand   ..Appellant

Versus

Harish Chand & Anr. ..Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. These appeals are directed against the judgment of a learned Single Judge of the

Punjab and Haryana High Court disposing of an appeal filed under Section 100 of the

Code of Civil Procedure, 1908 (in short ‘CPC’).

3. The  respondent  as  plaintiff  has  filed  a  suit  for  mandatory  injunction.  The

appellant filed written statement refuting the assertions by the plaintiff.  Replication

was filed by the respondent. The trial court framed 11 issues and learned Subordinate

Judge, 1st class, Palwal, decided issue nos. 1, 2 and 10 in favour of the respondent

decreeing the suit in mandatory injunction. An appeal was preferred by the appellant

which was decided by learned Additional District Judge, Faridabad, and was allowed.

Questioning the  judgment  and decree  passed by the First  Appellate  Court,  second

appeal was filed which was allowed by the impugned judgment. It is to be noted that

cross objection was also filed in terms of Order 41 Rule 22 CPC. Though many points

have been urged in support of the appeal, the primary stand is that the second appeal

was allowed without formulating any substantial question of law. Learned counsel for

the  respondent  submitted  that  though  question  of  law  was  not  formulated,  after

analysing evidence and applicable principles of law the High Court has allowed this

appeal.

4. Section 100 of CPC deals with “Second Appeal”.  The provision reads as follows:

“Section 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  take  away  or  abridge  the  power  of  the

question of law, not formulated by it, if it is satisfied that the case involves

such question.”

5. 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, which is set aside and remitted back to the High Court for proceeding in

the matter in accordance with law and in terms of observations made herein.

6. In Ishwar Dass Jain v.  Sohan Lal (2000 (1) 5CC 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 doing so.”

7. 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 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.”

8. The position has been reiterated in Kanhaiyalal and Ors. v. Anupkumar and Ors.

(2003 (1) SCC 430),  Mathakala Krishnaiah v.  V. Rajagopal (2004 (10) 5CC 676),  Smt.

Ram Sakhi  Devi v.  Chhatra  Devi  & Ors. (JT  2005 (6)  SC 167),  Sasikumar & Ors. v.

Kunnath Chellapan Nair & Ors. (2005 (12) SCC 588), Gian Dass v. The Gram Panchayat

Village  Sunner  Kalan  &  Ors. (2006  (6)  5CC  271),  Shah  Mansukhlal  Chhaganlal  (d)

through Lrs. v. Gohil  Amarsing Govindbhai (d) through Lrs. (2006 (13) SCALE 99).

9. The appeals  are allowed and the impugned order  is  set  aside.  The matter is

remitted to the High Court to rehear the Second Appeal, keeping in view the position in

law set out above.   There will be no order as to costs.

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

   ………………………………….J.     (ASOK KUMAR GANGULY)

New Delhi, March 18, 2009