Supreme Court of India
BOKKA SUBBA RAOversusKUKKALA BALAKRISHNA & ORS.
- Citation
- 2008 INSC 176
- Decided
- 12 February 2008
- Disposal
- Case Partly allowed
- Bench
- TARUN CHATTERJEE
Holding
A High Court must formulate the substantial question of law before deciding a second appeal; failure to do so invalidates the judgment.
Summary
The plaintiffs‑respondents filed a suit seeking a declaration of ownership of a specific property and a perpetual injunction. The trial court dismissed the suit and the decision was upheld on appeal. The High Court, however, in a second appeal, reversed the lower courts and decreed in favour of the plaintiffs‑respondents without first formulating any substantial question of law as required by Section 100 of the Code of Civil Procedure, 1908. The Supreme Court held that a High Court must first identify and state the substantial questions of law before deciding a second appeal, and that failure to do so renders the judgment vitiated. Consequently, the Supreme Court set aside the High Court’s second‑appeal judgment and remitted the matter back to the High Court to formulate the questions of law and decide the appeal on its merits. No merits of the case were examined by the Supreme Court.
Issues considered
- Whether the High Court was justified in allowing the second appeal without formulating the substantial question of law under Section 100 of the Code of Civil Procedure, 1908.
Legislation cited
Subjects
Civil ProcedureSecond AppealSection 100Substantial Question of LawRemandSupreme CourtProperty DisputeInjunction
Judgment
~
[2008] 2 S.C.R. 753
...;. BOKKA SUBBA RAO A
v.
KUKKALA BALAKRISHNA & ORS.
(Civil Appeal No. 1245 of 2008)
FEBRUARY 12, 2008
B
(TARUN CHATTERJEE & DALVEER BHANDARI, JJ.)
~
Code of Civil Procedure, 1908; S. 100:
Second appeal - Allowed by High Court without
formulating substantial question of law- Correctness of- Held: c
Incorrect - Matter remitted to High Court for formulating the
substantial question of law and to decide on merits.
The issue which arose for determination in this
appeal was as to whether the High Court was right in
D
deciding the matter without formulating the substantial
... question of law in second appeal in terms of S.100 of the
Code of Civil Procedure.
Partly allowing the appeal, the Court
E
HELD: 1.1 It is now well settled that the High Court in
second appeal, before allowing the same, ought to have
formulated the substantial questions of law and thereafter,
to decide the same on consideration of such substantial
questions of law. In this case, admittedly no such
substantial question of law had been formulated by the F
~ ......
High Court, and the second appeal was allowed. That
being the position, the judgment of the High Court
passed in second appeal is set aside and the matter is
remitted to the High, Court for fresh decision on merits
after formulating the substantial questions of law. G
(Para - 4) [754-G; 755-A]
~
1.2 _It is clarified that this Court has not gone into the
merits of the appeal. (Para - 5) [755-C]
753 H
7(
754 SUPREME COURT REPORTS [2008] 2 S.C.R.
A CIVILAPPELLATE JURISDICTION: Civil Appeal No 1245 )>--
of 2008.
From the Judgment and Order dated 26.07.2005 of the
High Court of Judicature, Andhra Pradesh at Hyderabad in
Second Appeal No. 1665 of 2004.
B
A.TM. Sampath and T.S. Shamtha for the Appellant.
T.V. Ratnam for the Respondents·. )..._
·i
The Judgment of the Court was delivered by
c TARUN CHATTERJEE, J. 1. Leave granted.
2. At the time of issuing notice to the special leave petition,
this Court confined notice as to why the second appeal should
not be rerpitted to the High Court for failure to formulate and
D decide the substantial question of law as required by Section
100 of the Code of Civil Procedure.
3. A suit was filed by the plaintiffs-respondents for
,.
declaration that Item No.2 of the plaint schedule property was
their absolute property, and for a perpetual injunction, restraining
E the respondents from obtaining possession of the said item.
The suit was dismissed, which was affirmed in appeal. However,
by the impugned judgment of the High Court passed in second
appeal, the suit was decreed. Feeling aggrieved by the,
aforesaid judgment of the High Court of Andhra Pradesh at
F Hyderabad, a special leave petition has been filed in respect qt
which leave has already been granted. j,..
-
4 .. 1-::lavtng heard the learned counsel for the parties an~.·
after examining the judgment of the High Court passed in the
second appeal, we are of the view that the judgment in second
G appeal of the High Court is liable to be set aside on a very short
question. It is now well settled by catena of decisions of this
Court that the High Court in second appeal, before allowing the ).,.,
same, ought to have formulated the substantial questions of law
and thereafter, to decide the same on consideration of such
H substantial questions of law. In this case, admittedly no such
<B~KKA SUBBA RAO v. KUKKALA BALAKRISHNA 755
& ORS. [TARUN CHATTERJEE, J.]
• ... substantial question of law had been formulated and thereafter,
A
the second appeal was allowed. That being the position, we
set aside the judgment of the High Court passed in second
appeal and remit the appeal back to the High Court for fresh
decision after formulating the substantial questions of law and
thereafter, to decide it on merits. B
_... 5. For the reasons aforesaid, the judgment of the High
Court is set aside. The second appeal is restored to its original
file. The High Court is requested to dispose of the second appeal
at an early date preferably within six months from the date of
supply of a copy of this order to it. We make it clear that we c
have not gone into the merits of· the appeal which shall be
decided after formulating the substantial questions of law and
then to decide the second appeal in accordance with law.
6. The appeal is, therefore, allowed to the extent indicated
D
~ above. There will be no order as to costs.
S.K.S. Appeal partly allowed.
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