Supreme Court of India

BALLA RAM (DEAD) BY LRS. AND ORS.versusPHOOLA (DEAD) BY LRS. AND ORS.

Citation: 2002 INSC 496
Decided: 27 November 2002
Disposal: Appeal(s) allowed
Bench: SHIVARAJ V PATILARIJIT PASAYAT

Holding

A second appeal may be disposed only after the court determines that a substantial question of law exists between the parties, and the appellant must state such question in the memorandum of appeal under Section 100(3) CPC.

Summary

The case involved a second appeal filed by the heirs of Balla Ram against the heirs of Phoola. The Punjab and Haryana High Court dismissed the appeal summarily, stating “No merit”, without examining whether any substantial question of law existed between the parties as required by Section 100(3) of the Code of Civil Procedure. The appellants argued that the High Court erred in not considering this statutory requirement. The Supreme Court held that under Section 100(3) CPC the memorandum of appeal must precisely state the substantial question of law and the court must first determine its existence before disposing of a second appeal. Accordingly, the High Court’s order was set aside, the appeal was allowed, and the matter was remitted to the High Court to decide whether a substantial question of law arises and to dispose of the appeal within six months.

Issues considered

Whether the Punjab and Haryana High Court could dismiss a second appeal without first determining if a substantial question of law arose between the parties under Section 100(3) CPC
Whether the appellant is required to frame the substantial question of law in the memorandum of appeal

Legislation cited

Code of Civil Procedure, 1908s. 100(3)

Subjects

second appealsubstantial question of lawSection 100 CPCappeal dismissalremandcivil procedure

Judgment

A                   BALLA RAM (DEAD) BY LRS. AND ORS.
                                          v.
                       PHOOLA (DEAD) BY LRS. AND ORS.

                               NOVEMBER 27, 2002

B               [SHIVARAJ V. PATIL AND ARIJIT PASAYAT, JJ.]


            Code of Civil Procedure, 1908:

        S. J00(3)-Second appeal-Dismissed by High Court without considering
C whether any substantial question of law arose for consideration between the
  parties-Held, it is expected of the appellant to frame substantial question of
  law in the memorandum of appeal-In order to consider and dispose of a
  second appeal, substantial question or questions of law should arise for
  consideration between the parties-Order of High Court does not indicate
D whether any substantial question of law arose for consideration between the
  parties-Matter remitted to High Court to consider whether any substantial
  question or questions of law arise for consideration and then dispose of the
  second appeal in accordance with law.

            CIVIL APPELLATE JURISDICTION             Civil Appeal No. 1356 of
E   1993.

         From the Judgment and Order dated I 3 .5.1992 of the Punjab and
    Haryana High Court in R.S.A. No. 2112 of 1991.

         M.N. Krishnamani, P.K. Jain, P.K. Goswami and S. Pani for the
F   Appellants.

        Yashank Adhyaru, Kavin Gulati, Mrs. Nandini Gore, Ms. Aditi
    Choudhary and Mrs Manik Karanjawala for the Respondents.

            The following Order of the Court was delivered
G
          Heard the learned counsel for the parties. The correctness and validity
    of the order passed in a second appeal by the High Court of Punjab and
    Haryana at Chandigarh is questioned in this appeal.

            Disposing of the second appeal, the High Court passed the following
H                                       364
                            BALLA RAM v. PHOOLA                            365
order:                                                                             A
                   "Heard. No merit.
                   Dismissed."

      The High Court did not consider whether any substantial question or
questions of law arose for consideration between the parties as required under     B
Section l 00 of the Code of Civil Procedure. This Court has taken the consistent
view that in order to consider and dispose of a second appeal, substantial
question or questions of law should arise for consideration between the parties.
The impugned order does not indicate whether any substantial question or
questions of law arose for consideration between the parties. It is expected       C-
of the appellant to frame substantial question of law in the memorandum of
appeal. Sub-Section '(3) of Section 100 C.P.C. states that:

              "In an appeal under this Section, the memorandum of appeal
          shall precisely state the substantial question of law involved in the
          appeal."                                                                 D
      In this view, without stating anything more on merits, the impugned
order is set aside.

         The appeal is allowed accordingly. The matter is remitted to the High
Court to consider whether any substantial q.uestion or questions of law arise      E
for consideration and then dispose of the second appeal in accordance with
law.

      Having regard to the fact that the suit is of the year 1982, we request
the High Court to dispose of the second appeal within a period of six months
from the date of the receipt of the copy of this order.                            F
R.P.                                                          Appeal allowed.

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