Holding

A second appeal under Section 100 CPC must be decided on a substantial question of law formulated by the High Court, and a judgment rendered without such formulation is void.

Summary

The appellant filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the High Court's reversal of an appellate decree. The High Court disposed of the appeal without formulating any substantial question of law, as required by Section 100(3)-(5). The appellant argued that such a procedure rendered the High Court's judgment unsustainable, while the respondent contended that the question of law was self‑evident and the judgment should stand. The Supreme Court held that the High Court must precisely state and hear the appeal on a substantial question of law; failure to do so invalidates the judgment. Consequently, the Court set aside the High Court's order and remitted the matter back to the High Court for fresh disposal in accordance with the law.

Issues considered

Whether the High Court was justified in disposing of a second appeal without formulating a substantial question of law as mandated by Section 100 of the Code of Civil Procedure, 1908.

Legislation cited

Code of Civil Procedure, 1908s. 100

Subjects

Section 100 CPCsecond appealsubstantial question of lawHigh Court jurisdictioncivil procedureremand

Judgment

-
MA THAKALA KRISHNAIAH A
v.
V. RAJAGOPAL

OCTOBER 15, 2004

[ARIJITPASAYAT ANDC.K. THAKKER,JJ.] B

Code ofCivil Procedure, 1908-Section JOO-Second appeal-Disposal
ofby High Court without formulating substantial question oflaw-Justification
of-Held: It is for the High Court to formulate a substantial question of law C
and hear the appeal on the question formulated-Jn absence of the same,
such judgment cannot be maintained and matter is remitted back to High
Court for fresh decision.

In these appeals, the issue involved was as to whether the High Court
was justified in disposing of the second appeal without formulating the D
substantial question of law, as mandated by Section 100 CPC.

Appellant contended that the High Court can only exercise its
jurisdiction under section 100 CPC in Second Appeal on the basis of
substantial question of law framed at the time of admitting appeal; and that a
second Appeal can be heard and decided only on the.basis of substantial E
question or' law, if any and as such the judgment of High Court is not
sustainable in law.

Respondent contended that the question of law is self evident and on a
technical plea that a question has not been framed, the well reasoned judgment
should not be set aside. F
Disposing of the appeals, th~ Court

HELD: 1.1. In view of Section 100 CPC, 1908, 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 High Court G
is satisfied that in any case any substantial question of law is involved it shall
formulate that question under suf>.:section (4) and the second appeal has to be
heard on the question so formulated as stated in sub-section (5) of Section
100 CPC. [549-D-E)
547 H
..
548 SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.

A 1.2. In the instant case, a perusal of the impugned judgment passed by
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 and as such the judgment cannot be maintained. The matters are
remitted back to High Court for disposal in accordance with law.
(550-C; 551-E]
B
/shwar Dass Jain v. Sohan Lal, (2000] l SCC 434; Roop Singh v. Ram
Singh, [2000) 3 SCC 708; Kanahaiyalal and Ors. v. Anupkumar and Ors., JT
(2002) 10 SC 98; R.Lakshmi Narayan v. Santhi {2001] 4 SCC 688; MS. V.
Raja and Anr. v. Seeni Thevar and Ors., (2001( 6 SCC 652; R. V.E.
C Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and Anr.,
(2003] 8 SCC 752; Md. Mohammad Ali (dead) by Lrs. v. Jagadish La/ita and
Ors., [20041 1 SCC 271 and Chadat Singh v. Bahadur Ram and Ors., Civil
Appeal Nos. 4903-4905/2005 decided by SC on 3rd August, 2004, referred
to.

D CIVIL APPELLATE JURlSDICTION : '2ivil Appeal Nos. 6784-6785 of
2004.

From the Judgment and Order dated 8.12.2003 of the Andhra Pradesh
High Court in S.A. No. 139/96 and C.M.P. No. 4378 of2003.

E Sridhar Reddy, V. Ramesh and Abhijit Sengupta for the Appellant.

M.N. Rao and S. Thananjayan with him for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASAYA T, J. Leave granted.
F
By the impugned judgment a learned Single Judge of the Andhra Pradesh
High Court reversed the Appellate Court's judgment and decree passed by
learned Ilnd Additional District Judge, Nellore. The present respondent was
the plaintiff in the original suit which was on the file of !st Additional District
Munsif Court, Nellore. He was the appellant before the High Court. Though
G the trial Court had decided in favour of the plair.tiff (respondent herein), as
noted above the first Appellate Court reversed the judgment and decree of
the trial Court and the suit filed by the plaintiff was dismissed. The plaintiff
filed Second Appeal before the High Court which was disposed of by the
impugned judgment. The High Court directed restoration of the judgment and
H decree of the trial Court and set aside the judgment and decree of the first

y
MATHAKALAKRISHNAIAHv. V.RAJAGOPAL[PASAYAT,J.] 549
Appellate Court. A
Though many points were urged in support of the appeal, the pivotal
plea was that the High Court could not have interfered with the judgment and
decree of the first Appellate Court without framing a substantial question of
law as enjoined by Section 100 of the Code of Civil Procedure, 1908 (in short
the 'Code'). The High Court can only exercise its jurisdiction under Section B
100 of the Code in Second Appeal on the basis of substantial question of law
framed at the time of admitting"appeal. A Second Appeal can be heard and
decided only on the basis of substantial question of law, if any. The judgment
rendered by the High Court in Second appeal without following the aforesaid
procedure is not sustainable in Jaw.
c
Learned counsel for the respondent on the other hand submitted that
the question of law is self evident and on a technical plea that a question has
not been framed, the well reasoned judgment should not be set aside.

In view of Section I 00 of the Code the memorandum of appeal shall D
precisely state substantial question or questions of law involved in the appeal
as required under sub-section (3) of Section I 00. 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. E
Section l 00 of the Code deals with "Second Appeal". The provision
reads as follows:

"Section 100- (l) Save as otherwise expressly provided in the
body of this Code or by any other law for the time being in force, an F
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 1uestion of law.

(2) An appeal may lie under this section from an appellate decree
passed ex parte. G
(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
H
550 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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
B
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."

A perusal of the impugned judgment passed by the High Court does
C not show that any substantial question of law has been formulated or that
the second appeal was heard on the question, if any, so fonnulated. That
being so, the judgment cannot be maintain~d.

In Jshwar. Dass Jain v. Sohan Lal, [2000] l SCC 434 this C~urt in.para
l 0, has stated thus:
D
"l 0. 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."

E 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 jurisdiction
of the High Court to entertain a second appeal is confined only to
F 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 l 00
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
G 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 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
H
MATHAKALAKRISHNAIAHv. V.RAJAGOPAL[PASAYAT,J.] 551
courts below were based on proper appreciation of evidence and the A
material on record and there was no perversity, illegality or irregularity
in those findings. If the defendant got the possession of suit land ~
a lessee or under a batai agreement then from the pennissive 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 B
owner. Mere possession for a long time does not result in converting
pennissive possession into adverse possession (Thakur Kishan Singh
v. Arvind Kumar, (1994] 6 SCC 591). Hence.the High Court ought not
to have interfered with the findings of fact recorded by both the
courts below."

The position has been reiterated in Kanhaiyalal and Ors. v. Anupkumar
c
and Ors., JT (2002] 10 SC 98.

Reference may also be made to R. Lakshmi Narayan v. Santhi, (2001]
4 SCC 688, MS. V. Raja and Anr. v. Seeni Thevar and Ors., (2001] 6 SCC 652,
R. V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple D
and Anr., [2003] 8 SCC 752, Md. Mohammad Ali (dead) by Lrs. v. Jagadish
Kalita and Ors., (2004] 1 SCC 271 and Chadat Singh v. Bahadur Ram and
Ors. (Civil Appeal Nos.4903-4905/2005 decided on 3rd August, 2004).

In the circumstances, the impugned judgment is set aside. We remit
these matters to the High Court for disposal in accordance with law. The E
appeals are disposed of in the aforesaid tenns with no order as to costs.

N.J. Appeals disposed of.