Holding

A High Court must formulate the substantial question of law and hear the second appeal on that question; failure to do so invalidates its judgment.

Summary

The Supreme Court examined a civil appeal (No. 414 of 2001) challenging a Karnataka High Court order that allowed a second appeal without formulating any substantial question of law as required by Section 100 of the Code of Civil Procedure, 1908. The Court reiterated that under Section 100(3) the memorandum of appeal must state the substantial question, and under Section 100(4) the High Court must formulate that question and hear the appeal on it per Section 100(5). The impugned judgment showed no such formulation or hearing, rendering it untenable. Citing precedents such as Ishwar Dass Jain v. Sohan Lal and Roop Singh v. Ram Singh, the Court held that a High Court's jurisdiction in a second appeal is confined to cases involving a substantial question of law. Consequently, the Supreme Court set aside the High Court's order and remitted the matter back for disposal after proper formulation of any substantial question, without awarding costs.

Issues considered

Whether the High Court was justified in disposing of a second appeal without formulating the substantial question of law as mandated by Section 100 CPC.

Legislation cited

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

Subjects

Second appealSection 100 CPCSubstantial question of lawCivil ProcedureHigh Court jurisdictionRemandAdverse possession

Judgment

.r.,-
A PATRICK JJ. SALDANHA
v.
ANTONYM. SALDANHA

MAY 8, 2007

B [DR. ARIJITPASAYAT AND LOKESHWARSINGH PANTA, JJ.]

Code a/Civil Procedure, 1908-Section JOO-Second appeal-Disposal
of by 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-In absence of the same,
such judgment cannot be maintained.

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

Disposing of tbe appeal, the 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
E appeal as required under sub-section (3) of Section 100. Where 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. (Para 31 (125-F-G)

F 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.
[Paras S and 9) (126-D-E; 127-G)
G
/shwar Dass Jain v. Sohan Lal, (200011 SCC 434; Roop Singh (dead)
by LR's v. Ram Singh (dead) by LR's, [200013 SCC 708; Kanahaiyalal and
Ors. v. Anupkumar and Ors., JT (2002) 10 SC 98; Premabai v. Jnaneshwar. ·
-4
Ramakrishna Palange and Ors., (2003) AIR SCW 2922; Chadat Singh v. ;

H 124

,,
PATRICKJJ. SALDANHAv. ANTONYM. SALDANHA [PASAYAT,J.] 125
...,,.._
Bahadur Rama and Ors., JT (2004) 6 SC 296; Matha/ca/a Krishnaiah v. V. A.
Rajagopa/, JT (2004) 9 SC 205; Shah Mansukhlal Chhaganial (dead)
through Lrs. v. Gohi/ Amarsing Govindbhai (dead) through Lrs.. (2006) 13
.... SCALE 99; Ravi Construction Co. v. Somvanshi Arya Ksatriya Samai and
Ors., (2006) 9 SCALE 174; Jawa/a Singh (Dead) by LR's & Ors. v. Jagat
Singh (Dead) by LR's & Ors.. JT (2006) 8 SC 483 and C.A. Sulaiman and
Ors. v. State Bank of Travancore Alwayee and Ors., AIR (2006) SC 2848, B
relied on.

-,.,.
.. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 414 of2001.

From the Final Judgment and Order dated 06.08.1998 of the High Court
ofKamataka at Bangalore in R.S.A. No. 930of1991. c
S.S. Javeli, and P.R. Ramasesh for the Appellant.

Naveen R. Nath and Lalit Mohini Bhat for the Respondent.

The Judgment of the Court was delivered by D
DR. ARIJIT PASA YAT, J. I. Challenge in this appeal is to the order
...(

;>-
passed by a learned Single Judge of the Kamataka High Court allowing the
Second Appeal (RSA No. 930 of 1991) filed by the respondent.

2. Though many points are urged, primarily it was submitted that the E
Second Appeal was allowed without formulating a substantial question of
law.

3. 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 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.
G
4. Section 100 of the Code deals with "Second Appeal". The provision
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 H
126 SUPREME COURT REPORTS [2007) 6 S.C.R.

Court subordinate to the High Court, ifthe High Court is satisfied that ,.,,,..
A
the case involves a substantial question of 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 shall
B
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. ,<,
,f

(5) The appeal shall be heard on the question so formulated and the
c 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
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
D formulated by it, if it is satisfied that the case involves such question."

5. 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 -<..
the Second Appeal was heard on the question, if any, so formulated. ·Tuat
being so, the judgment cannot be maintained.
E
6. In lshwar Dass Jain (Dead) through LRs. v. Sohan Lal (Dead)
through LRs., [2000] 1 SCC 434 this Court in para 10, 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
F and it is not permissible to reverse the judgment of the First Appellate
Court without doing so."
;'I.
7. Yet again in Roop Singh (Dead) through LRs. v. Ram Singh (Dead)
through LRs., [2000] 3 SCC 708 this Court has expressed that the jurisdiction
of a High Court is confined to appeals involving substantial question of law.
G
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 such
appeals which involve a substantial question of law and it does not /
...
H confer any jurisdiction on the High Court to interfere with pure .
PATRICKJJ. SALDANHAv. ANTONYM. SALDANHA[PASAYAT,J.] 127

questions of fact while exercising its jurisdiction under Section I 00 A
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 impugned judgment. Further, the fact findings courts after
appreciating the evidence held that the defendant entered into the B
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 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 C
suit land as a lessee or under a batai agreement then 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 (1994 (6) SCC 591). Hence the High 0
Court ought not to have interfered with the findings of fact recorded
by both the courts below."

8. The position has been reiterated in Kanahaiyalal and Ors. v.
Anupkumar and Ors., JT (2002) IO SC 98, Premabai v. Jnaneshwar E
Ramakrishna Patange and Ors., (2003) AIR SCW 2922, Chadat Singh v.
Bahadur Rama and Ors., JT (2004) 6 SC 296 and Mathakala Krishnaiah v.
V. Rajagopal, JT (2004) 9 SC 205. Recently this Court has clarified the position
in Shah Mansukhlal Chhanganial (Dead) through LRs. v. Gohil Amarsing
Govindbhai (Dead) through LRs. (2006) 13 SCALE 99, Ravi Construction Co.
v. Somvanshi Arya Ksatriya Samaj and Ors., (2006) 9 SCALE 174, Jawala F
Singh (Dead) by LRs. & Ors. v. Jagat Singh (Dead) By LRs. & Ors., JT (2006)
8 SC 483, and C.A. Sulaiman and Ors. v. State Bank of Travancore Alwayee
and Ors., AIR (2006) SC 2848.

9. In the circumstances, the impugned judgment is set aside. We remit
the matter to the High Court for disposal after formulating the substantial G
question of law, if any, and in accordance with law. The appeal is disposed
of in the aforesaid terms with no order as to costs.

NJ. Appeal disposed of.