Holding

A second appeal under Section 100 CPC is valid only if the High Court formulates the substantial question of law and hears the appeal on that question; otherwise the appeal must be set aside.

Summary

Mahavir filed a second appeal against a decree, but the Punjab and Haryana High Court allowed the appeal without formulating any substantial question of law, contrary to Section 100 of the Code of Civil Procedure, 1908. The Supreme Court examined whether the High Court was obliged to state and hear the appeal on a substantial question of law as mandated by sub‑sections (3), (4) and (5) of Section 100. It held that the memorandum of appeal must precisely state the question, the High Court must formulate it if it is satisfied that such a question exists, and the appeal must be heard on that formulated question. Since the High Court’s judgment showed no such formulation or hearing, the Supreme Court could not uphold it. The matter was remitted to the High Court to formulate any substantial question of law and then decide the appeal. The Supreme Court allowed the appeal, setting aside the High Court’s order.

Issues considered

Whether a second appeal under Section 100 CPC must be entertained only after the High Court formulates the substantial question of law involved.
Whether the failure to formulate and hear the appeal on a substantial question of law renders the High Court's order allowing the second appeal invalid.

Legislation cited

Code of Civil Procedure, 1908s. 100(3), s. 100(4), s. 100(5)

Subjects

Second appealSubstantial question of lawSection 100 CPCFormulation of questionCivil procedure

Judgment

_.
• MAHAVIR A
v.
LAKHMI AND ANR.

JANUARY 22, 2007

[DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] B
(-
~ Code of Civil Procedure, 1908-s. JOO-Second appeal-Substantial
question of /aw-Formulation-Necessity of-Held: Second appeal has to
be heard on the substantial question formulated-Jn absence thereof
appeal shall fail-Appeal-Second appeal.
c
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Present appeal was filed questioning the judgment of High <;ourt
' which allowed the second appeal without formulating a question of law.

Allowing the appeal, the Court

.. 'r
HELD: 1. In view of Section 100 CPC, the memorandum of appeal
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
D

Court is satisfied that in any case any substantial question of law is involved
it shall formulate that question under sub-section (4) and the second appeal
has to be heard on the question so formulated as stated in sub-section (5) E
of Section 100. (Para 6] (1136-F]
t-

2. The impugned judgment passed by the High Court does not show
that any substantial question oflaw 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. The matter is remitted to the High Court, F
which shall formulate substantial questions of law, if any, and then deal
with the matter. [Paras 8 & 12] [1137-E 1138-G)

Jshwar Dass Jain v. Sohan Lal, [2000] 1 SCC 434; Roop Singh v. Ram
Singh, [2000) 3 SCC 708; Kanahaiyalal and Ors. v. Anupkumar and Ors., G
[2003] 1 SCC 430 and Ram Sakhi Devi (Smt.) v. Chhatra Devi and Ors.,
[2005] 6 sec 181- relied on.
~

' CIVIL APP ELLATE JUPJSDICTION : Civil Appeal No. 30 l of2007.

From the Final Judgments/Orders dated 4.8.2004 and 11.10.2004 of the H
1135
+ .~
1136 SUPREME COURT REPORTS [2007] 1 S.C.R.

A High Court of Punjab and Haryana at Chandigarh in R.S.A. No. 1325/1983
and C.M. No. 9023-C/2004 in R.S.A. No. 1325/1983.

R. Venkataramani, Sr. Adv., Ashok Panigrahi, Manju Aggarwal and
Satya Mitra Garg for the Appellant.

B Chaitanya Siddharth, Mrs. P. Purnima, Mukesh K. Sharma and
Rameshwar Prasad Goyal, Advs. for the Respondents. 4..:.
).
The Judgment of the Court was delivered by

DR. ARIJIT PASAY AT, J. : 1. Heard learned counsel for the parties.
c
2. Leave granted.

3. These appeals are directed against the judgment passed by learned
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Single Judge of Punjab and Haryana High Court allowing the Second Appeal

D
filed by the defendant and rejecting the application for review.

4. The plaintiff has filed the present appeals against the aforesaid
orders.
1'
..
5. Though several points were urged in support of the appeals, main
ground was that the Second appeal was allowed without formulating a
E question of law.

6. In view of Section 100 of the Code of Civil Procedure, 1908 (in short
the 'Code') the memorandum of appeal shall precisely state substantial
question or questions of law involved in the appeal as required under sub-
F 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 (4) and the second appeal has to be heard on the
question so formulated as stated in sub-section (5) of Section 100.

7. Section 100 of the Code deals with "Second Appeal". The provision
G reads as follows:

"Section 100- (I) 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
H
.
~ ~-

. ~
MAHAVIR v. LAKHMI [PASAYAT,J.] 1137

Court is satisfied that the case involves a substantial question of A
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 B
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. c
(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 D
1 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."
E
8. 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
-.1
l. the second appeal was heard on the question, if any, so formulated. That
---i
being so, the judgment cannot be maintained .
.......
9. In Jshwar Dass Jain v. Sohan Lal, [2000] l SCC 434 this Court in
F
" para l 0, 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 Jlermissible to reverse the judgment of the first G
appellate Court without doing so."

"' • 10. 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:
H
1138 SUPREME COURT REPORTS [2007] 1 S.C.R.

A "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
B Court did not even notice the question of Jaw formulated by it at
the time of admission of the second appeal as there is no reference
of it in the impugned judgment. Further, the fact findings courts
after appreciating the evidence held that the defendant entered into
the possession of the premises as a batai, that is to say, as a tenant
c and his possession was permissive and there was no pleading or
proof as to when it became adverse and hostile. These findings
recorded by the two courts below were based on proper appreciation
of evidence and the material on record and there was no perversity,
illegality or irregularity in those findings. If the defendant got the
possession of suit land as a lessee or under a batai agreement then
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from the permissive possession it is for him to establish by cogent
and convincing evidence to show hostile animus and possession
adverse to the knowledge of the real owner. Mere possession for
a long time does not result in converting permissive possession
into adverse possession (Thakur Kishan Singh v. Arvind Kumar,
E [1994] 6 SCC 591. Hence the High Court ought not to have
interfered with the findings of fact recorded by both the courts
below."

11. The position has been reiterated in Kanahaiyalal and Ors. v.
F Anupkumar and Ors., [2003] 1 SCC 430) and Ram Sakhi Devi (Smt.) v.
Chhatra Devi and Others, [2005] 6 SCC 181.

12. The matter is remitted to the High Court, which shall formulate
substantial questions of law, if any, and then deal with the matter. Needless
to say if there is/are question(s) of law, tbs J}ppeal has to be dismissed. We
G express no opinion in that regard.

13. Appeals are allowed without any orders as to costs.

K.K.T. Appeals allowed.