Holding

A High Court must frame a substantial question of law in a second appeal under Section 100 CPC; failure to do so renders its decision impermissible.

Summary

The appellant filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, challenging a decree of a subordinate court. The Madras High Court disposed of the appeal without framing any substantial question of law, despite the statutory requirement that the High Court must be satisfied that such a question exists and must formulate it. The Supreme Court examined the provisions of Section 100, emphasizing that the appellant must state the precise question in the memorandum and the High Court must either formulate that question or, if it finds another substantial question, record reasons. It held that the High Court’s decision without framing a substantial question was impermissible. Consequently, the Supreme Court set aside the High Court’s order, restored the second appeal to the High Court’s file, and remanded the matter for disposal in accordance with the law.

Issues considered

Whether a High Court can entertain a second appeal under Section 100 CPC without framing a substantial question of law.
Whether the appellant is obligated to state the substantial question of law in the memorandum of appeal.
Whether the High Court must formulate the substantial question of law if it is satisfied that such a question exists.

Legislation cited

Code of Civil Procedure, 1908s. 100

Subjects

Second appealSubstantial question of lawSection 100 CPCHigh Court jurisdictionProcedural lawFraming of questionRemand

Judgment

MUTHU GOUNDER A
v.
AMMA YEE AMMAL

JULY 9, 2002

[SYED SHAH MOHAMMED QUADRI AND S.N. VARIAVA, JJ.] B

Code of Civil Procedure, 1908:

S.100-Second appeal-Substantial question of law-High Court
deciding second appeal without framing substantial question of law though it C
formulated points which arose for its consideration-Held, it is manifest that
High Court can entertain a second appeal only if it is satisfied that the case
involves a substantial question of law-An obligation is cast on appellant to
state precisely the substantial question of law involved in the case in the
' memorandum of second appeal and if the High Court is satisfied that a D
substantial question of law is involved in the case, it is required to formulate
that question-Interference by High Court in second appeal without framing
substantial que.fition of law is impermissible and unsustainahle-Car;e remanded
to High Court for disposal in accordance with law.

Shankareppa M. Mutanki v. B.M. Mutanki, (2000( 9 SCC 254 and E
Birendera Kumar Dubey and Anr. Girja Nandan Dubey and Ors., (2001] 6
sec 767, relied on.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3717 of
2002.
F
From the Judgment and Order dated 20.8.200 I of the Madras High
Court in SA. No. 1748 of 2000.

V. Prabhakar, Rakesh Garg and M.K.D. Namboodiri, for the Appellants.

S. Aravindh and V. Balachandran, for the Respondent. G
The following Order of the Court was delivered :

Heard learned counsel for the parties.

Leave is granted.
103
H
104 SUPREME COURT REPORTS [2002] SUPP. l S.C.R.

A This appeai is directed against the judgment and order of the High
Court of Judica,ture at Madras in Second Appeal No. 1748 of 2000 dated
August 20, 2001.

· We have been taken through the judgment under challenge. It is evident
that the learned Judge has disposed of the second appeal unmindful of the
B amended provisions of Section 100 C.P.C. inasmuch as no substantial questio~
of law has been framed which is obligatory thereunder. Section 100 C.P.C.
reads as under :

"100. Second Appeal-(!) Save as otherwise expressly provided in
the body of this Code or by any other law for the time being in force,
c 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.
D
(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.
E
(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
F 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."

From a perusal of the above provisions, it is manifest that the High
G Court can entertain a Second Appeal only if it is satisfied that the case
involves a substantial question of law. An obligation is cast on the appellant
to state precisely the substantial question of law involved in the case in the
memorandum of Second Appeal and if the High Court is satisfied that a
substantial question of law is involved in the Second Appeal it is required to
formulate that question. The appeal has to be heard on that question though
H the respondent is permitted to argue that no such question is involved in the

•
MUTHU GOUNDER v. AMMA YEE AMMAL 105
case. Nonetheless, the High Court has power to hear the appeal on any other A
substantial question of law not formulated by it provided it is satisfied that
the case involves such other substantial question and in that event it has to
record reasons. This Court reiterated the requirement of Section I 00 C.P.C.
on a number of occasions. [See : Shankareppa M. Mutanki v. BM. Mutanki,
[2000] 9 SCC 254 and Birendera Mumar Dubey and Anr. v. Girja Nandan B
Dubey and Ors., [2001] 6 SCC 767.

The learned Judge, in the instant case, failed to frame any substantial
question of law though he formulated points which arose for his consideration
and accordingly decided the appeal. It follows that interference by the High
Court in Second Appeal without framing substantial question of law is C
impermissible and unsustainable.

In this view of the matter, we set aside the judgment and order under
challenge, restore the Second Appeal (No. 1748 of 2000) to the file of the
High Court and remand the case to the High Court for disposal in accordance
with law. D
The appeal is accordingly allowed. No costs.

R.P. Appeal allowed.