Supreme Court of India
ASHOK RANGNTH NAGARversusSHRIKANT GOVINDRAO SANGVIKAR
- Citation
- 2015 INSC 806
- Decided
- 27 October 2015
- Disposal
- Matter referred to larger bench
- Bench
- M Y EQBAL
Holding
Formulation of a substantial question of law is a condition precedent for exercising jurisdiction under Section 100 CPC; the High Court’s failure to do so rendered its judgment illegal.
Summary
The respondents filed a suit for perpetual injunction which was dismissed by the trial court; the first appeal to the District Judge also dismissed the suit. The respondents then filed a second appeal before the Bombay High Court. The High Court reversed both the trial court and the first appellate court judgments without first formulating a substantial question of law, contrary to the requirements of Section 100 of the Code of Civil Procedure. The Supreme Court held that jurisdiction under Section 100 can be exercised only after a substantial question of law is identified and framed, and that the High Court’s judgment was therefore illegal. Consequently, the Supreme Court set aside the High Court’s order and remitted the matter back to the High Court to first formulate the substantial question of law and then decide the second appeal afresh. The Court also directed interim relief for the elderly respondents.
Issues considered
- Whether the High Court was justified in entertaining and deciding a second appeal under Section 100 CPC without formulating a substantial question of law.
Legislation cited
- Code of Civil Procedure, 1908s. 100, s. 101
Subjects
Section 100 CPCsecond appealsubstantial question of lawjurisdictioncivil procedureperpetual injunction
Judgment
[2016] 12 S.C.R. 931
ASHOKRANGNTHNAGAR A
v.
SHRIKANT GOVINDRAO SANGVIKAR
(Civil Appeal No.8909 of2015)
OCTOBER 27, 2015 B
[M.Y. EQBAL AND C. NAGAPPAN, JJ.]
Code of Civil Procedure, 1908 - s. 100 - Second appeal
- High Court's Jurisdiction uls. 100 - Scope of - Held:
Jurisdiction u/s. 100 is exercised by High Court only when it c
is satisfied that there is a substantial question of law - On
facts, High Court without formulating substantial question of
law allowed the apoeal and set aside the judgment passed
by the trial court and the first ~ppellate court - High Court
failed to notice mandate of s. 100 while deciding a second D
appeal - Thus, the judgment passed by the High Court is
set aside - Matter remitted back to the High Court to first
formulate substantial question of law and then decide the
second appeal afresh.
E
Shiv Cotex vs. Tirgun Auto Plast (P) Ltd. (2011} 9
SCC 678:2011 (10) SCR 787; Umerkhan vs.
Bismillabi (2011} 9 sec 684: 2011 (9) SCR 551;
Rameshwar Dayal Mangala v. Harish Chand
(2009) 4 sec 800: 2009 (4) ·scR 505; a.c. F
Shivashankara vs. B.R. Nagaraj (2007) 15 SCC
387 :2007 (3) SCR 389; Patrick JJ. Saldanha vs.
Antony M. Saldanha (2007) 11 SCC 148:2007 (6)
SCR 124; Mahavir vs. Lakhmi (2007) 9 SCC 208:
2007 (1) SCR 1135; Hardeep Kaur vs. Malkiat G
Kaur(2012} 4 SCC 344: 2012 (2) SCR 478; Shah
Mansukhlal Chhaganial vs. Gohil Amarsing
Govindbhai (2006) 13SCC113: 2006 (10} Suppl.
. SCR 135; Boodireddy Chandraiah vs. Arigela
Lax mi (2007) 8 SCC 155: 2007 (9) SCR 1061; H
931
932 SUPREME COURT REPORTS [2015] 12 S.C.R.
A Joseph Severance v. Benny Mathew (2005) 7
SCC 667 2005 (3) Suppl. SCR 429; State of
Kera/a vs. Puthenkavu N. S.S. Karayogam (2001)
10 SCC 191; Ellangallur vs. Gopalan (2000) 2
SCC 11; H. G Venkataramanaiah vs. Subba Pujari ·
B (2000) 10 SCC 412; Ramavilasom Grandhasa/a
vs. N.S.S. Karayogam (2000) 5 SCC 64: 2000
(3) SCR 1151 - referred to.
CASE LAW REFERENCE
c 2011 (10) SCR 787 Referred to. Para 8
•
2011 (9) SCR 551 Referred to. Para 9
2009 (4) SCR 505 Referred to. Para 10
2007 (3) SCR 389 Referred to. Para 11
D
2007 (6) SCR 124 Referred to. Para 12
2007 (1) SCR 1135 Referred to. Para 13
2012 (2) SCR 478 Referred to. Para 14
E 2006 (10) Suppl. SCR 135 Referred to. Para 15
2007 (9) ~CR 1061 Referred to. Para 15
2005 (3) Suppl. SCR 429: Referred to. Para 16
2001) 10 sec 191 . Referred to. Para 17
F
(20001 2 sec 11 Referred to. Para 18
(2000) 10 sec 412 Referred to. Para 18
2000 (3) SCR1151 Referred to. Para 19
G CIVIL APPELLATE JURISDICTION: Civil Appeal No.
8909 of 2015.
From the Judgment and Order dated 13.02.2014 of the
High Court of Judicature at Bombay Bench atAurangabad in
Second Appeal No. 285 of2013.
H
WITH
ASHOK RANGNTH NAGAR v. SHRIKANT GOVINDRAO 933
SANGVIKAR
C. A. Nos. 8910 and 8911 of 2015. A
Vatsalya Vigya, (For Sudhanshu S. Choudhari), Advs:, for
the Appellant.
Vanita ChandrakantGiri, (A.C.},Adv., forthe Respondent, B
Respondent-in-person.
The Order of the Court was delivered by
ORDER 1. Leave granted.
c
2. We have heard Mr. Vatsalya Vigya, learned counsel
appearing for the appellant and Ms. ChandrakantGiri, learned
Amicus Curiae for the respondents and perused the common
impugned judgment dated 13.02.2014 passed by the Bombay
High Court. D
3. The short question that arises for consideration in these
appeals is as to whether the High Court was justified in passing
the impugned judgment without formulating any substantial
question of law.
E
4. The facts of the case in a nutshell are that the plaintiff-
respondents filed a civil suit for perpetual injunction against
the defendant-appellant seeking a decree restraining him from
alienating the suit property.
F
5. After a full-fledged trial, the suit was dismissed. As
against the judgment and decree passed by the trial court, the
•
· plaintiff preferred an appeal before the District Judge which
was also dismissed by upholding the judgment of the trial court.
Aggrieved by the same, the plaintiff-respondents filed second G
appeals in the High Court. The High Court without formulating
substantial question of law heard the appeals and reversed
the judgment arid decree, passed by the trial court as also of
the appellate court. Consequently, the suit was decreed. H
934 SUPREME COURT REPORTS [2015] 12 S.C.R.
A Hence, these appeals by special leave.
6. Without expressing any opinion on the merits of the
case prim a facie we are of the view that the matter need to be
remitted to the High Court to decide the second appeal afresh.
B The High Court, in fact, failed to notice the mandate of Section
100 CPC while deciding a second appeal. Time and again
this Court has held that unless the High Court is satisfied that
there is a substantial question of law, jurisdiction under Section
100 of the Code cannot be exercised.
c
7. Although not necessary butto remind ourselves the law
settled by this Court we ma·y refer some of the decisions
hereinafter.
8. In the case of Shiv Cotex vs. Tirgun Auto Plast (P)
D Ltd., (2011) 9 SCC 678, against the concurrent judgment and
decree of the two courts, a Second Appeal was filed before
the High Court, which has been allowed by the Single Judge
and the suit had been remanded to the trial court for fresh
decision in accordance with law. While deciding the appeal
E and reversing the judgment and decree of the two courts, the
High Court proceeded without formulating any substantial
question of law. On these facts, this Court observed that
"11. The judgment of the High Court is gravely flawed
F and cannot be sustained for more than one reason. In
the first place, the High Court, while deciding the second
appeal, failed to adhere to the necessary requirement of
Section 100 CPC and interfered with the concurrent
judgment and decree of the courts below without
G formulating any substantial question of law. The
formulation of substantial question of law is a must before
the second appeal is heard and finally disposed of by
the High Court. This Court has reiterated and restated
the legal position time out of number that formulation of
H a substantial question of law is a condition precedent for
ASHOK RANGNTH NAGAR v. SH RI KANT GOVINDRAO 935
SANGVI KAR
entertaining and deciding a second appeal. Recently, in A
Umerkhan v. Bismil/abi decided by us on 28-7-2011, it
has been held that the judgment of the High Court is
rendered patently illegal, if a second appeal is heard and
the judgment and decree appealed against is reversed
without formulating a substantial question of law." B
9. In the case of Umerkhan vs. Bismi/labi, (2011) 9 SCC
684, the High Court had allowed the second appeal and set
aside the judgment and decree of the First Appellate Court.
•While allowing the appeal and reversing the judgment of the c
Appellate Court, no substantial question of law was formulated.
On these facts, this Court observed as under:
"11. In our view, the very jurisdiction of the High Court in
hearing a second appeal is founded on the formulation
0
of a substantial question of law. The judgment of the High
Court is rendered patently illegal, if a second appeal is
heard and judgment and decree appealed against is
reversed without formulating a substantial question of law.
The second appellate jurisdiction of the High Court under E
Section 100 is not akin to the appellate jurisdiction urider
Section 96 of the Code; it is restricted to such substantial
question or questions of law that may arise from the
judgment and decree appealed against. As a matter of
law, a second appeal is entertainable by the High Court F
only upon its satisfaction that a substantial question of
law is involved in the matter and its formulation thereof.
Section 100 of the Code provides that the second appeal
shall be heard on the question so formulated. It is,
however, open to the High Court to reframe substantial G
question of law or frame substantial question of law afresh
or hold that no substantial question of law is involved at
the time of hearing the second appeal but reversal of the
judgment and decree passed in appeal by a court
subordinate to it in exercise of jurisdiction under Section H
100 of the Code .is impermissible without formulating
936 SUPREME COURT REPORTS [2015] 12 S.C.R.
A substantial question of law and a decision on such
question.
12. This Court has been bringing to the notice of the High
Courts the constraints of Section 100 of the Code and
8 the mandate of the law contained in Section 101 that no
second appeal shall lie except on the ground mentioned
in Section 100, yet it appears that the fundamental legal
position concerning jurisdiction of the High Court in
second appeal is ignored and overlooked time and again.
c The present appeal is unfortunately one of such matters
where the High Court interfered with the judgment and
decree of the first appellate court in total disregard of
the above legal position."
0
10. In the case of Rameshwar Dayal Mangala v. Harish
Chand, (2009) 4 SCC 800, a suit for mandatory injunction
was filed and the same was decreed by the trial court.
Challenging the judgment and decree of the trial court, first
appeal was preferred, which was eventually allowed.
E Questioning the judgment and decree passed by the First
Appellate Court, a second appeal was filed and the same was
allowed by the High Court and the judgment and decree passed
by the Appellate Court was reversed without formulating any
substantial question of law. On these facts, this Court held
F ·that the High Court, exercising jurisdiction under Section 100
of the Code of Civil Procedure, cannot interfere with or reverse
the judgment without formulating any substantial question of
law.
11. Also in the case of B.C. Shivashankara vs. B.R.
G Nagaraj, (2007) 15 SCC 387, learned Single Judge of the
Karnataka. High Court allowed second appeal and set aside
the judgment and decree without first formulating substantial
question of law. This Court, therefore, after referring earlier
decisions of this Court, held that the judgment of the High Court
H cannot be sustained in law and the matter was remitted to the
ASHOK RANGNTH NAGAR v. SH RI KANT GOVINDRAO 937
SANGVIKAR
High Court for its disposal in accordance with law. A
12. In the case of Patrick JJ. Sa/danha vs. Antony M.
Sa/danha, (2007) 11 SCC 148, the High Court allowed the
second appeal and.set aside the judgment and decree passed
by the courts below. While allowing the appeal and reversing B
the judgment, no substantial question of law was framed by
the High Court. In that context, this Court reiterated as under:
"3. In view of Section 100 of the Code of Civil Procedure,
1908 (in short "the Code") the memorandum of appeal c
shall precisely state substantial question or questions of
· law 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 D
(4) and the second appeal has to be heard on the
question so formulated as stated in sub-section (5) of
Section 100."
13. In the case of Mahavir vs. Lakhmi, (2007) 9 SCC
208, it was reiterated by this Court that while reversing the E
judgment and decree in second appeal by the High Court,
Section 100, CPC mandates to formulate substantial question
of law before allowing the second appeal and reversing the
judgment and decree of the lower court.
F
14. In the case of Hardeep Kaur vs. Ma1kiat Kaur, (2012)
4 SCC 344, the second appeal was allowed by the High Court
and the judgment and decree passed by the appellate Court
was set aside. The short question considered by this Court
was whether a second appeal lies only on a substantial G
question of law and is it essential for the High Court to formulate
a substantial question of law before interfering with the
judgment and decree of the lower appellate court. This Court,
after considering almost all the earlier judgments, held as
under: H
938 SUPREME COURT REPORTS [2015] 12 S.C.R.
A "18. The law consistently stated by this Court that
formulation of substantial question of law is a sine qua
non for exercise of jurisdiction under Section 100 CPC
admits of no ambiguity and permits no departure. In the
present case, the High Court has allowed the second
B appeal and set aside the judgment and decree of the
first appellate court without formulating any substantial
question of law, which is impermissible and that renders
the judgment of the High Court unsustainable.
c 15. In Shah Mansukhlal Chhaganial vs. Gohil
Amarsing Govindbhai, (2006) 13 SCC 113, and Boodireddy
Chandraiah vs. Arige/a Laxmi, (2007) 8 SCC 155, this
Court reiterated the same view that the second appeal cannot
be allowed by the High Court without formulating any substantial
o question of law.
16. In the case of Joseph Severance v. Benny Mathew,
(2005) 7 SCC 667, this Court again took the view that the
High Court would not be competent to reverse the finding
E
recorded by the trial court or the first appellate court without
formulating substantial question of law.
17. In State of Kera/a vs. Puthenkavu N.S.S.
Karayogam, (2001) 10 SCC 191, a second appeal was filed
against the concurrent finding recorded by both the trial court
F and the first appellate court. . However, the High Court,
exercising jurisdiction under Section 100, CPC interfered with
the concurrent finding of facts and allowed the appeal. This
Court set aside the order holding that the judgment of the High
Court cannot be sustained inasmuch as it "reverses the
G judgment without formulating substantial question of law. The
Court observed, thus:
"5. Both sides have advanced several contentions in the
appeal petition as also in the counter-affidavit filed. We
· H refrain from expressing any opinion on the merits of the
ASHOK RANGNTH NAGAR v. SH RI KANT GOVINDRAO 939
SANGVIKAR
case as we propose to remit the second appeal for A
disposal afresh. We have noted that the learned Single
Judge has not formulated any question of law, much less
any substantial question of law, which alone would have
clothed the High Court with jurisdiction under Section 100
·CPC to deal with a second appeal. This Court has stated B
time and again that unless the High Court is satisfied
that there is a substantial question of law, jurisdiction for
second appeal cannot be exercised. It is unnecessary
to cite the authorities on that aspect as it has now become
well-nigh settled. Both sides agreed that no substantial C
question of law has been formulated by the learned Single
Judge. If so, the learned Single Judge ought to have
proceeded further."
18. In the case of Ellangal/ur vs. Gopalan, (2000) 2 D
sec 11, this Court, considering a case where the High Court
in second appeal reversed the finding of the first appellate
court on the re-appreciation of evidence without formulating
any substantial question of law, held that the judgment passed
by the High Court cannot be sustained in view of the prescribed E
procedure of Section 100 of the Code of Civil Procedure.
Same view has been reiterated by this Court in the case of
H.G. Venkataramanaiah vs. Subba Pujari, (2000) 10 SCC
412.
F
19. Similar view has been reiterated in the case of
Ramavilasom Grandhasala vs. N.s;s. Karayogam, (2000)
5 SCC 64, wherein it was held that the High Court without
formulating any substantial question of law as required under
sub-section (4) of Section 100 of the Code cannot allow second G
appeal and set aside the judgment of the lower court.
20. In the light of the provision contained in Section 100
CPC and the ratio decided by this Court, we come to. the
following conclusion:-
H
(i) On the day when the second appeal is listed for hearing
940 SUPREME COURT REPORTS [2015] 12 S.C.R.
A on admission if the High Court is satisfied that no
substantial question of law is involved, it shall dismiss
the second appeal without even formulating the
substantial question of law;
8 (ii) In cases where the High Court after heari,ng the
appellate is satisfied that the substantial question of law
is involved, it shall formulate that question and then the
appeal shall be heard on those substantfal question of
law, after giving notice and opportunity of hearing to the
c respondent;
(iii) In no circumstances the High Court can reverse the
judgment of the trial court and the first appellate court
without formulating the substantial question of law and
complying with the mandatory requirements of Section
D
100 CPC.
21. Admittedly, the High Court by the impugned judgment
allowed the appeal and reversed the judgment passed by the
trial court and the first appellate court. We have, therefore, no
E option but to set aside the impugned judgment passed by the
High Court and remit the matter back to the High Court to first
formulate the substantial question of law and then decide all
these appeals in accordance with law.
F 22. Hence, we allow these appeals and remitthese matters
back to the High Court to first formulate substantial question
of law and then decide all these appeals in accordance with
law accordingly.
0 23. Since the plaintiff-respondents are old persons aged
more than 75 years and they have been fighting the litigation
since 1992, we request the High Court to give preference of
hearing to these appeals and d.ecide the same as
expeditiously as possible preferably within a period of four
H months fror:n today.
ASH OK RANGNTH NAGAR v. SH RI KANT GOVINDRAO 941
SANGVIKAR
24. However, interim order passed by this Court shall A
continue only for a period of four months from today.
25. After hearing the respondents, who appeared in
person before this Court today and informed about their
financial stafus, we request the Maharashtra Legal Services 8
Authority to provide all legal assistance to them and to meet
all legal expenses in defending the second appeals in the High
Court.
26. In the peculiar facts and circumstances of the case c
and considering the helplessness of the respondents who are
old .aged persons, we direct the appellant to pay a sum of
Rs:25,000/- (Rupees Twenty Five thousand only) towards the
legal expenses incurred by them in pursuing the case in this
Court.
D
27. Mr. Vigya, learned counsel for the appellant, very fairly
submits that the appellant be allowed some time to pay the
aforesaid amount to the respondents. .
28. As prayed for, two weeks' time is allowed to the E
appellant to pay the aforesaid amount to the respondents.
29. The Registry is directed to communicate this Order to
the Bombay High Court forthwith.
Nidhi Jain
F
Matter remitted back to High Court.
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