Supreme Court of India
U. SUDHEERA & OTHERSversusC. YASHODA & OTHERS
- Citation
- 2025 INSC 80
- Decided
- 16 January 2025
- Disposal
- Appeal(s) allowed
- Bench
- B PARDIWALA
Holding
A High Court cannot grant any interim order in a second appeal under Section 100 CPC unless it first frames a substantial question of law; therefore the interim order was set aside.
Summary
The appellants, legal heirs of certain defendants, challenged an interim order dated 20 September 2024 passed by the Andhra Pradesh High Court in a second appeal (SA No. 518 of 2023) that directed the parties to maintain the status quo without first formulating any substantial question of law as required under Section 100 of the Code of Civil Procedure (CPC). The second appeal arose from a suit for permanent injunction concerning a cooperative society's land, which had been decreed in favour of the plaintiff but later set aside by the first appellate court. The appellants argued that the High Court lacked jurisdiction to grant any ad‑interim relief before framing a substantial question of law, and that Section 151's inherent power could not override the express mandate of Section 100. The respondents contended that the Court could use its inherent power to preserve the subject‑matter of the dispute in exigent circumstances. The Supreme Court examined the statutory scheme of Section 100, the jurisprudence that a substantial question of law is a sine qua non for the High Court's jurisdiction in a second appeal, and held that the High Court cannot issue interim orders without first framing such a question. Consequently, the Court set aside the High Court's interim order and allowed the appeal.
Issues considered
- Whether a High Court may pass an ad interim order for a limited period in a second appeal under Order XLI read with Section 100 CPC before formulating a substantial question of law.
- Whether the inherent power under Section 151 CPC can be invoked to grant interim relief in a second appeal when the substantial question of law has not been framed.
Legislation cited
- Code of Civil Procedure, 1908s. 100, s. 151
Subjects
Section 100 of Code of Civil Procedure, 1908Second appealSubstantial question of lawInterim reliefAd interim orderNotice of MotionInherent powerSection 151 CPC
Judgment
[2025] 2 S.C.R. 92 : 2025 INSC 80
U. Sudheera & Others
v.
C. Yashoda & Others
(Civil Appeal No. 567 of 2025)
17 January 2025
[J.B. Pardiwala and R. Mahadevan,* JJ.]
Issue for Consideration
Whether the High Court can pass any ad interim order for a limited
period, before framing substantial question(s) of law, while dealing
with a second appeal filed under Order XLI r/w Section 100 CPC.
Headnotes†
Code of Civil Procedure, 1908 – s.100 – Second appeal – In
second appeal, High Court granted the interim relief directing the
parties to maintain status quo, without formulating substantial
questions of law as mandated u/s.100 – Challenge to:
Held: Interim order passed by the High Court set aside – High
Court cannot grant an interim order, without framing substantial
question of law as required to be framed u/s.100 – It acquires
jurisdiction to deal with the second appeal on merits only when
it frames a substantial question of law u/s.100 – If no substantial
question of law arises, the second appeal cannot be entertained
and ought to be dismissed, as the jurisdiction of the High Court
itself is not yet invoked. [Paras 10.2, 10.4]
Code of Civil Procedure, 1908 – ss.100, 151 – Practice in some
High Courts to order Notice of Motion, where even before an
appeal is admitted, the respondents are granted opportunity
to contest the case – High Court in exercise of its power
u/s.151, if can grant interim orders:
Held: No – High Court cannot grant any interim protection to
the appellant, unless the substantial question of law is framed
u/s.100(4) or as per the Proviso – Inherent power u/s.151 cannot
be used by the High Court in violation of the express mandates
in other provisions of the Code. [Para 10.3]
Code of Civil Procedure, 1908 – s.100 – Second appeal –
Jurisdiction of High Court – Discussed.
* Author
[2025] 2 S.C.R. 93
U. Sudheera & Others v. C. Yashoda & Others
Case Law Cited
Ram Phal v. Banarasi (2003) 11 SCC 762; Raghavendra Swamy
Mutt v. Uttaradi Mutt [2016] 3 SCR 11 : (2016) 11 SCC 235;
Bhagyashree Anant Gaonkar v. Narendra @ Nagesh Bharma Holkar
(2023) SCC Online SC 1236; Santosh Hazari v. Purushottam
Tiwari [2001] 1 SCR 948 : (2001) 3 SCC 179; Roop Singh v.
Ram Singh [2000] 2 SCR 605 : (2000) 3 SCC 708; State Bank
of India v. S.N. Goyal [2008] 7 SCR 631 : (2008) 8 SCC 92;
Municipal Committee, Hoshiarpur v. Punjab SEB [2010] 13 SCR
658 : (2010) 13 SCC 216; Umerkhan v. Bismillabi [2011] 9 SCR
551 : (2011) 9 SCC 684; Hemavathi & Others v. V. Hombegowda
and Another, 2023 INSC 848 : [2023] 12 SCR 477 : 2023 SCC
OnLine SC 1206 – relied on.
Vareed Jacob v. Sosamma Geeverghese and Ors. [2004] 1 Supp.
SCR 534 : (2004) 6 SCC 378; Vrajesh Anandrao Kerkar v. Durgesh
Tulsidas Kerkar and Others, 2024 SCC OnLine Bom 472 – held
inapplicable.
Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal [1962]
Supp. 1 SCR 450 : AIR 1962 SC 527; Anathula Sudhakar v.
P Buchi Reddy [2008] 5 SCR 331 : (2008) 4 SCC 594; Bhimabai
Mahadeo Kambekar v. Arthur Import & Export Co. [2019] 1 SCR
812 : (2019) 3 SCC 191 – referred to.
List of Acts
Code of Civil Procedure, 1908.
List of Keywords
Section 100 of Code of Civil Procedure, 1908; Second appeal;
Substantial question(s) of law; Substantial question of law not
framed; Interim relief/order; Ad interim order/relief; Notice of Motion;
Inherent power.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 567 of 2025
From the Judgment and Order dated 20.09.2024 of the High Court
of Andhra Pradesh at Amravati in SA No. 518 of 2023
94 [2025] 2 S.C.R.
Digital Supreme Court Reports
Appearances for Parties
Nishanth Patil, Mv Mukunda, Advs. for the Appellants.
Purvish Jitendra Malkhan, Sr. Adv., M. Rambabu, M/s. M. Rambabu
& Co., Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
R. Mahadevan, J.
Leave granted.
2. The challenge made in this appeal is to the interim order dated
20.09.2024 passed by the High Court of Andhra Pradesh at
Amaravathi1 in the Second Appeal bearing No.518/2023. For the
sake of clarity and ease of reference, the order impugned herein is
reproduced below:
“Learned counsel for the respondent No.9 is present.
Notice sent to respondent No.8 was served.
Therefore, service of respondent No.8 is ‘held sufficient’.
Learned counsel for the appellant is permitted to take out
steps for filing substitute service against the respondent
Nos.4, 6 and 7.
It was represented by the learned Senior Counsel for the
appellant, Sri S. Rajendra Prasad that the appellant is
in possession and enjoyment of the scheduled property
as on today and the respondents are making efforts for
interfering with the possession of the appellant.
Considering the representation made by the learned Senior
Counsel for the appellant, both parties are directed to
maintain status-quo till 25.09.2024.
List the matter on 25.09.2024.”
1 Hereinafter referred to as “the High Court”
[2025] 2 S.C.R. 95
U. Sudheera & Others v. C. Yashoda & Others
3. The Respondent No.1 is the plaintiff in the suit in O.S.No.48 of 2011;
Appellant Nos.1 to 3 are the legal representatives of the deceased
Defendant No.5; Appellant Nos.4 to 6 are Defendant Nos.1, 3, and
6; and Respondent Nos.2 and 3 are Defendant Nos.2 and 4 in the
said suit.
4. The brief facts of the case, as presented by the appellants, are as
follows:
The defendants are members of the Gazetted Officers Cooperative
House Building Society2, which was registered in 1966 with the
purpose of purchasing and making constructions on lands in
Mangalam Village, Tirupati. The Society purchased lands in Survey
Nos.2, 10/1, 10/2 and 12 measuring an extent of 5.35 Ac, 0.61Ac,
4 Ac, 5.47 Ac respectively. The suit scheduled property measuring
an extent of 0.61 Ac was also purchased by the Society through
a sale deed dated 20.03.1986 from one M.Savithramma W/o.
Mudduluru Ramakrishnamraju. The original pattadar of the suit
scheduled property was one Kannavaram Lokanadham, who sold
the same to M.Savithramma by sale deed dated 14.05.1981. While
so, the Government issued notification under section 4 of the Land
Acquisition Act, 1894, seeking to acquire the lands of the Society.
Aggrieved by the same, the Society approached the High Court
by filing a writ petition bearing No.2357/1987, which was allowed
and the acquisition notification was set aside, by order dated
27.07.1987. Thereafter, the Tirupati Urban Development Authority
issued Order under Section 14 of the Andhra Pradesh Urban Areas
(Development) Act, 1975, on 19.06.1996 granting approval of layout
in respect of the lands in Sy.Nos.2, 10/1, 10/2 of Mangalam Village,
Tirupati. Pursuant to the same, plots were developed and were sold
to the defendants. As things stood, the Respondent No.1/plaintiff
approached the Tahsildar for mutation of the revenue records in
respect of the land in Sy.No.10/1 (0.61 Ac) and the same was done
ex parte by Order dated 13.04.2010. On the basis of the same,
the Respondent No.1/plaintiff filed a suit in OS.No.48 of 2011
before the 1st Additional Junior Civil Judge, Tirupati, for permanent
injunction against the defendants. The trial Court decreed the suit
in favour of the plaintiff, by judgment dated 05.02.2016. However,
2 For short, “the Society”
96 [2025] 2 S.C.R.
Digital Supreme Court Reports
the First Appellate Court viz., V Additional District Judge, Tirupati,
by judgment dated 11.11.2022 passed in A.S.No.17/2016, allowed
the appeal suit and set aside the judgment and decree passed by
the trial Court, after having found that the plaintiff could not have
maintained a suit for bare injunction, without seeking declaration
of title. Challenging the same, the Respondent No.1 / plaintiff filed
a second appeal bearing No. 518 of 2023 before the High Court.
After adjourning the matter on three occasions on the ground that
the respondents therein were not served, the High Court on the
fourth occasion i.e., 20.09.2024, granted interim relief in the form
of status quo, without formulating any substantial question of law
arising in the second appeal. By order dated 26.09.2024, the said
interim relief was extended till 17.10.2024. Feeling aggrieved, the
legal heirs of Defendant No.5 and the Defendant Nos.1, 3, and 6
are before us with the present appeal.
5. The learned counsel for the appellants submitted that without
framing substantial question of law, an interim order cannot be
passed in a second appeal filed under Section 100 of the Code of
Civil Procedure, 19083. In this connection, reliance was placed on
the judgment of this Court in Ram Phal v. Banarasi,4 wherein, it
was found that the High Court granted interim order and thereafter,
fixed the matter for framing of question of law on a subsequent
date, and ultimately, it was held that ‘since the High Court dealt
with the matter contrary to the mandate enshrined under Section
100 CPC, the impugned order deserves to be set aside’. The
said judgment has been consistently followed by this Court in the
subsequent decisions in Raghavendra Swamy Mutt v. Uttaradi
Mutt 5 and Bhagyashree Anant Gaonkar v. Narendra @ Nagesh
Bharma Holkar.6
5.1. The learned counsel further submitted that when the fact remains
that all the respondents have not been served and the plaintiff
has not even sought for declaration of title, the High Court
erred in granting the interim relief, on a mere representation.
3 For short, “CPC”
4 (2003) 11 SCC 762
5 [2016] 3 SCR 11 : (2016) 11 SCC 235
6 (2023) SCC Online 1236
[2025] 2 S.C.R. 97
U. Sudheera & Others v. C. Yashoda & Others
5.2. Referring to the judgment of this Court in Anathula Sudhakar v.
P Buchi Reddy,7 it is submitted that the suit instituted for bare
injunction without seeking declaration of title, is not maintainable.
5.3. The learned counsel further submitted that the trial Court decreed
the suit on the presumption that the Respondent No.1/plaintiff
is the owner of the property on the basis of revenue records.
However, it is settled law that revenue records cannot be the
basis for determination of ownership. In this regard, reference
was made to the judgment of this Court in Bhimabai Mahadeo
Kambekar v. Arthur Import & Export Co.,8 wherein, it was held
that ‘mutation of a land in the revenue records does not create
or extinguish the title over such land nor has it any presumptive
value on the title. It only enables the person in whose favour
mutation is ordered, to pay the land revenue in question’.
5.4. It is finally submitted that the First Appellate Court, on facts,
decided the appeal in favour of the appellants and as such, the
High Court ought not to have granted an interim order merely
on the basis of representation of the counsel.
5.5. By submitting so, the learned counsel prayed to allow this appeal
by setting aside the interim order passed by the High Court.
6. On the contrary, the learned counsel for the contesting respondent/
plaintiff submitted that the jurisdiction of the Court is inherent to
issue any ad interim / temporary order for limited period, in case of
exigencies or the circumstances not covered in the scheme of Code
to protect the ends of justice and to safeguard the subject matter of
the proceedings. To substantiate the same, reference was made to
the judgment of this Court in Manohar Lal Chopra v. Rai Bahadur
Rao Raja Seth Hiralal,9 which was referred to in Vareed Jacob v.
Sosamma Geeverghese and Ors.10
6.1. Adding further, it is submitted that since the Code does not
provide for any provision for protection of the subject matter
of proceedings, when an Appeal under Order 41 Rule 5 CPC
7 [2008] 5 SCR 331 : (2008) 4 SCC 594
8 [2019] 1 SCR 812 : (2019) 3 SCC 191
9 [1962] Supp. 1 SCR 450 : AIR 1962 SC 527
10 [2004] Supp. 1 SCR 534 : (2004) 6 SCC 378
98 [2025] 2 S.C.R.
Digital Supreme Court Reports
is preferred, and the substantive question of law remains to
be framed yet, the inherent power of the Court under Section
151 CPC can be invoked in the interregnum to protect the
subject matter.
6.2. It is also submitted that the impugned order is only in the nature
of an exparte ad interim arrangement for a limited period i.e.,
till the next date of hearing. It is neither creating any right nor
divesting the parties of their right. That apart, it does not stay
the operation of the decree, but is only in aid of preserving the
subject matter of the suit and maintaining the status quo as it
stood on the date of passing of the order. Therefore, the said
ad interim ex parte arrangement cannot be construed as interim
order. In support of his contention, reference was made to the
judgment of Bombay High Court in Vrajesh Anandrao Kerkar
v. Durgesh Tulsidas Kerkar and Others.11
6.3. The learned counsel further pointed out that in Ram phal
(supra), the execution of the decree itself was stayed, whereas
in the present case, the decree has not been stayed and
mere ad interim arrangement to maintain status quo is under
challenge. Similarly, the judgment of this Court in Bhagyashree
Anant Gaonkar (supra) is factually distinguishable as the High
Court had passed the final judgment without even framing
any question of law. Therefore, the decisions relied on by the
learned counsel for the petitioners are not applicable to the
facts of the present case.
6.4. Ultimately, it is submitted by the learned counsel that as per the
averments made in the plaint, the plaintiff has right and share
in the suit scheduled property. Hence, the second appeal could
be decided only upon perusal of the entire papers properly
and the impugned order has been passed only as an interim
measure to protect the interest of the parties.
6.5. Thus, according to the learned counsel, there is no infirmity
or illegality in the order so passed by the High Court and the
same need not be interfered with by this court.
11 2024 SCC OnLine Bom 472
[2025] 2 S.C.R. 99
U. Sudheera & Others v. C. Yashoda & Others
7. We have considered the rival submissions and perused the documents
produced before us.
8. Now, the short question arising for our consideration is, whether the
High Court can pass any ad interim order for a limited period, before
framing substantial question(s) of law, while dealing with a second
appeal filed under Order XLI r/w Section 100 CPC.
9. The facts that remain undisputed are that the suit in OS.No.48 of
2011 filed by the Respondent No.1/plaintiff was one for permanent
injunction and the same was decreed in her favour by judgment
dated 05.02.2016. However, the First Appellate Court set aside the
same and allowed the appeal suit filed by the appellants / defendants
by judgment dated 11.11.2022. Therefore, the Respondent No.1/
plaintiff preferred SA.No.518 of 2023, in which, without formulating
the substantial questions of law, the High Court granted the interim
relief in the form of status quo to be maintained by the parties, and
the same is called in question before us. Considering the limited
nature of the issue involved herein, we need not go further into the
factual aspects of the matter.
10. Let us first examine the relevant legal provisions and case laws
connected to the issue involved in this appeal.
10.1. The right of filing a second appeal is provided under section
100 CPC, which confers jurisdiction on the High Court only
when it is satisfied that the case involves a substantial
question of law. For better appreciation, the said provision
reads as under:
“12[100. Second appeal.—(1) 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 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.
12 Substituted by Act 104 of 1976, sec.37, for section 100 (w.e.f. 1-2-1977)
100 [2025] 2 S.C.R.
Digital Supreme Court Reports
(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.
(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 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.]”
10.2. This Court has categorically held that the High Court acquires
jurisdiction to deal with the second appeal on merits only
when it frames a substantial question of law as required to
be framed under Section 100 CPC; and it cannot grant an
interim order, without framing substantial question of law. In
this regard, a few decisions and the relevant paragraphs are
usefully quoted below:
(i) Ram Phal (supra)
“2. ... Aggrieved, the respondents herein filed second
appeal before the High Court against the judgment
and decree of the first appellate court. When the
second appeal came up for admission on 20-12-
1999 the High Court directed to list the appeal for
framing of question of law on 28-3-2000. However,
the High Court granted interim order by staying the
execution of the decree. It is against the said order
granting interim relief the respondent in the second
appeal has preferred this appeal. This Court, on
a number of occasions, has repeatedly held that
the High Court acquires jurisdiction to decide the
second appeal or deal with the second appeal on
[2025] 2 S.C.R. 101
U. Sudheera & Others v. C. Yashoda & Others
merits only when it frames a substantial question
of law as required to be framed under Section 100
of the Civil Procedure Code. In the present case,
what we find is that the High Court granted interim
order and thereafter fixed the matter for framing of
question of law on a subsequent date. This was not
the way to deal with the matter as contemplated
under Section 100 CPC. The High Court is required
to frame the question of law first and thereafter deal
with the matter. Since the High Court dealt with the
matter contrary to the mandate enshrined under
Section 100 CPC, the impugned order deserves to
be set aside.”
(ii) Raghavendra Swamy Mutt (supra)
“23. The submission of the learned Senior Counsel
for the appellant is that Order 41 Rule 5 confers
jurisdiction on the High Court while dealing with an
appeal under Section 100 CPC to pass an ex parte
order and such an order can be passed deferring
formulation of question of law in grave situations.
Be it stated, for passing an ex parte order the Court
has to keep in mind the postulates provided under
sub-rule (3) of Rule 5 of Order 41. It has to be made
clear that the Court for the purpose of passing an ex
parte order is obligated to keep in view the language
employed under Section 100 CPC. It is because
formulation of substantial question of law enables
the High Court to entertain an appeal and thereafter
proceed to pass an order and at that juncture,
needless to say, the Court has the jurisdiction to pass
an interim order subject to the language employed
in Order 41 Rule 5(3).
24. It is clear as day that the High Court cannot admit
a second appeal without examining whether it raises
any substantial question of law for admission and
thereafter, it is obliged to formulate the substantial
question of law. Solely because the Court has the
jurisdiction to pass an ex parte order, it does not
102 [2025] 2 S.C.R.
Digital Supreme Court Reports
empower it not to formulate the substantial question
of law for the purpose of admission, defer the date
of admission and pass an order of stay or grant an
interim relief. That is not the scheme of CPC after
its amendment in 1976 and that is not the tenor of
precedents of this Court and it has been clearly so
stated in Ram Phal v. Banarasi, [(2003) 11 SCC
762]. Therefore, the High Court has rectified its
mistake by vacating the order passed in IA No. 1 of
2015 and it is the correct approach adopted by the
High Court. Thus, the impugned order is absolutely
impregnable.”
(iii) Santosh Hazari v. Purushottam Tiwari13
“9. The High Court cannot proceed to hear a second
appeal without formulating the substantial question
of law involved in the appeal and if it does so it acts
illegally and in abnegation or abdication of the duty
cast on Court. The existence of substantial question
of law is the sine qua non for the exercise of the
jurisdiction under the amended Section 100 of the
Code. (See: Kshitish Chandra Purkait v. Santosh
Kumar Purkait [(1997) 5 SCC 438], Panchugopal
Barua v. Umesh Chandra Goswami [(1997) 4 SCC
713] and Kondiba Dagadu Kadam v. Savitribai Sopan
Gujar [(1999) 3 SCC 722].)”
(iv) Roop Singh v. Ram Singh14
“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.
13 [2001] 1 SCR 948 : (2001) 3 SCC 179
14 [2000] 2 SCR 605 : (2000) 3 SCC 708
[2025] 2 S.C.R. 103
U. Sudheera & Others v. C. Yashoda & Others
(v) State Bank of India v. S.N. Goyal15
“15. It is a matter of concern that the scope of second
appeals and as also the procedural aspects of second
appeals are often ignored by the High Courts. Some
of the oft-repeated errors are:
(a) Admitting a second appeal when it does not give
rise to a substantial question of law.
(b) Admitting second appeals without formulating
substantial question of law.
(c) Admitting second appeals by formulating a
standard or mechanical question such as “whether
on the facts and circumstances the judgment of the
first appellate court calls for interference” as the
substantial question of law.
(d) Failing to consider and formulate relevant and
appropriate substantial question(s) of law involved
in the second appeal.
(e) Rejecting second appeals on the ground that
the case does not involve any substantial question
of law, when the case in fact involves substantial
questions of law.
(f) Reformulating the substantial question of law
after the conclusion of the hearing, while preparing
the judgment, thereby denying an opportunity to the
parties to make submissions on the reformulated
substantial question of law.
(g) Deciding second appeals by reappreciating
evidence and interfering with findings of fact, ignoring
the questions of law.
These lapses or technical errors lead to injustice and
also give rise to avoidable further appeals to this Court
and remands by this Court, thereby prolonging the
period of litigation. Care should be taken to ensure
15 [2008] 7 SCR 631 : (2008) 8 SCC 92
104 [2025] 2 S.C.R.
Digital Supreme Court Reports
that the cases not involving substantial questions
of law are not entertained, and at the same time
ensure that cases involving substantial questions
of law are not rejected as not involving substantial
questions of law.”
(vi) Municipal Committee, Hoshiarpur v. Punjab SEB16
“16… The court cannot entertain a second appeal
unless a substantial question of law is involved, as
the second appeal does not lie on the ground of
erroneous findings of fact based on an appreciation
of the relevant evidence. The existence of a
substantial question of law is a condition precedent
for entertaining the second appeal; on failure to do
so, the judgment cannot be maintained. The existence
of a substantial question of law is a sine qua non
for the exercise of jurisdiction under the provisions
of Section 100 CPC. It is the obligation on the court
to further clear the intent of the legislature and not
to frustrate it by ignoring the same.”
(vii) Umerkhan v. Bismillabi17
“11. In our view, the very jurisdiction of the High
Court in hearing a second appeal is founded on
the formulation of a substantial question of law. The
judgment of the High Court is rendered patently illegal,
if a second appeal is heard and judgment and decree
appealed against is reversed without formulating a
substantial question of law. The second appellate
jurisdiction of the High Court under Section 100 is not
akin to the appellate jurisdiction under Section 96 of
the Code; it is restricted to such substantial question
or questions of law that may arise from the judgment
and decree appealed against. As a matter of law, a
second appeal is entertainable by the High Court only
16 [2010] 13 SCR 658 : (2010) 13 SCC 216
17 [2011] 9 SCR 551 : (2011) 9 SCC 684
[2025] 2 S.C.R. 105
U. Sudheera & Others v. C. Yashoda & Others
upon its satisfaction that a substantial question of law
is involved in the matter and its formulation thereof.
Section 100 of the Code provides that the second
appeal shall be heard on the question so formulated.
It is, however, open to the High Court to reframe
substantial question of law or frame substantial
question of law afresh or hold that no substantial
question of law is involved at the time of hearing
the second appeal but reversal of the judgment and
decree passed in appeal by a court subordinate to
it in exercise of jurisdiction under Section 100 of the
Code is impermissible without formulating substantial
question of law and a decision on such question.”
(viii) In Bhagyashree Anant Gaonkar (supra), this Court has
observed that the exclusive jurisdiction of the High Court
to deal with a regular second appeal is stipulated in section
100 CPC, which grants power to the High Court to consider
a regular second appeal only on a substantial question of
law; and after referring to the aforesaid earlier judgments,
has ultimately, set aside the impugned judgment passed in
the Regular Second Appeal and remanded the matter to
the High Court for a fresh consideration after ascertaining
whether substantial questions were framed at the time of
admitting the matter and if not, to frame the substantial
questions of law on hearing the learned counsel for the
respective parties and thereafter to dispose of the second
appeal in accordance with law.
(ix) Following the aforesaid judgments, this Court in Hemavathi
& others v. V.Hombegowda and another,18 has observed
that if no substantial question of law arose in the case,
then, the appeal could not have been entertained and
ought to have been dismissed at the stage of admission.
The relevant passage reads as under:
“The jurisdiction of the High Court to entertain
a Second Appeal is well-known. It is a unique
18 2023 INSC 848 : [2023] 12 SCR 477 : 2023 SCC OnLine SC 1206
106 [2025] 2 S.C.R.
Digital Supreme Court Reports
jurisdiction of the High Court where the High Court
can entertain a Regular Second Appeal purely on
a “substantial” question of law not even a question
of law or a question of fact. It is a settled law that
the first appellate court is the final Court insofar as
the question of facts are concerned and it is only
when substantial questions of law would arise in a
case that the High Court can entertain a Regular
Second Appeal and if at the stage of admission such
substantial questions of law are discerned by the
High Court the same would have to be framed and
the appeal(s) would have to be admitted. It is only
thereafter that the parties have to be heard on the
substantial questions of law that are framed by the
High Court at the stage of admission.
However, the CPC gives power to the High Court to
frame additional substantial questions of law or to
mould the substantial questions of law already framed
on hearing the parties at the time of final hearing
of a Second Appeal. In the event the respondents
before the High Court are on record even at the
stage of admission of a Regular Second Appeal and
the same is to be disposed of finally even at this
stage substantial questions of law must be framed
and answered before the Regular Second Appeal is
admitted and disposed.”
10.3. As per Section 100, a High Court can proceed to hear a Second
Appeal only if the case involves a substantial question of law,
implying that when the appeal is taken up for admission, it
must satisfy itself that a substantial question of law is involved.
Thereafter, the High Court must frame such question and direct
the parties to submit their arguments on such question. The
scheme of the Code also enables the High Court to hear the
parties on any other substantial question of law, not framed by
it at the first hearing, but during the course of hearing for the
reasons to be recorded. Again, if the court is not satisfied at
the first hearing that the case does not involve a substantial
question of law, it cannot proceed further. Once such additional
question of law is framed during the course of hearing, the
[2025] 2 S.C.R. 107
U. Sudheera & Others v. C. Yashoda & Others
parties must be given opportunity to submit their arguments on
the other substantial question of law(s). We take cognizance of
the fact, that in some High Courts, there is a practice to order
Notice of Motion, whereby even before an appeal is admitted,
an opportunity is granted to the respondents therein to contest
the case. In such a case, it is implied that the High Court is
not satisfied prima facie with the case. Such dissatisfaction
could be either for a reason that the case does not involve a
substantial question of law or for a reason that in the facts of
the case, the question of law, though substantial, would not
warrant interference. In such cases, though the High Court in
exercise of its power under Section 151 of CPC is generally
empowered to grant interim orders to preserve the subject
matter of the dispute and to avoid multiplicity of proceedings,
we are of the opinion, the court cannot grant any interim
protection to the appellant, unless the substantial question of
law is framed under Section 100 (4) or as per the Proviso. On
the other hand, if the High Court is prima facie of the view that
the substantial question of law involved would not require much
time for disposal, the court is bound to frame the substantial
question of law at the stage of admission and then order short
notice. The High Court cannot use its inherent power under
Section 151 in violation of the express mandates in other
provisions of the Code. We find support to this view from the
following passage in Manohar Lal Chopra v. Rai Bahadur Rao
Raja Seth Hiralal1 9 :
“42. The Code of Civil Procedure is undoubtedly not
exhaustive : it does not lay down rules for guidance
in respect of all situations nor does it seek to provide
rules for decision of all conceivable cases which
may arise. The civil courts are authorised to pass
such orders as may be necessary for the ends of
justice or to prevent abuse of the process of court,
but where an express provision is made to meet a
particular situation the Code must be observed, and
departure therefrom is not permissible. As observed
in LR 62 IA 80 (Maqbul Ahmed v. Onkar Pratab) “It is
19 [1962] Supp. 1 SCR 450 : 1961 SCC OnLine SC 17 : AIR 1962 SC 527
108 [2025] 2 S.C.R.
Digital Supreme Court Reports
impossible to hold that in a matter which is governed
by an Act, which in some limited respects gives the
court a statutory discretion, there can be implied in
court, outside the limits of the Act a general discretion
to dispense with the provisions of the Act”. Inherent
jurisdiction of the court to make orders ex debito
justitiae is undoubtedly affirmed by Section 151 of
the Code, but that jurisdiction cannot be exercised
so as to nullify the provisions of the Code. Where
the Code deals expressly with a particular matter, the
provision should normally be regarded as exhaustive.”
10.4. Thus, the law is clear that a second appeal will be maintainable
before the High Court, only if it is satisfied that the case involves
a substantial question of law. If no substantial question of law
arises, the second appeal could not have been entertained and
the same ought to have been dismissed, as the jurisdiction of
the High Court itself is not yet invoked.
11. Concededly, in the present case, the High Court, without formulating
substantial questions of law, granted the interim relief by directing the
parties to maintain status quo, till the next date of hearing. The said
interim order was also subsequently extended. It is also pertinent
to point out that all the respondents in the second appeal have not
been served and notice was unserved qua Respondent Nos.4, 6
and 7 therein. Therefore, we are of the opinion that the High Court
could not have passed the interim order without satisfying itself of
the existence of a substantial question of law, as mandated under
Section 100 CPC.
12. Though the learned counsel for the Respondent No.1/plaintiff made
an attempt to contend that the High Court has jurisdiction to pass
any interim order and the order impugned herein is only an ad
interim arrangement to protect the interest of the subject matter of
the proceedings, the same cannot be countenanced by us in the
facts of this case. Indisputably, the High Court has jurisdiction to
pass an interim order ex parte, however, it does not empower to
grant ad interim relief, without examining the parties and formulating
the substantial question of law involved in the second appeal as it
is contrary to section 100 CPC. The judgements relied upon by the
learned counsel for the contesting respondent are of no avail as
[2025] 2 S.C.R. 109
U. Sudheera & Others v. C. Yashoda & Others
they are factually distinguishable and do not support the case of
the respondent.
13. In the light of the aforesaid settled legal position, we have no hesitation
to set aside the interim order passed by the High Court. Accordingly,
the impugned order dated 20.09.2024 made in SA.No.518 of 2023
is set aside and this appeal stands allowed. There is no order as
to costs.
14. Pending application(s), if any, shall stand disposed of.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Divya Pandey
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Section 100 of Code of Civil Procedure, 1908"Sign in to search