Holding

A second appeal under Section 100 CPC must be heard on a substantial question of law that the High Court has first formulated; the proviso to sub‑section (5) applies only when such a question has already been framed.

Summary

The Supreme Court examined whether the Kerala High Court correctly disposed of three second appeals without first formulating any substantial question of law, as required by Section 100 of the Code of Civil Procedure, 1908. The respondents argued that the proviso to sub‑section (5) of Section 100 allowed the High Court to decide on a different substantial question of law even if none had been formulated. The Court held that the proviso is applicable only when a substantial question has already been framed, and that the High Court must formulate the question and hear the appeal on it before recording reasons. Since the High Court failed to do so, its judgment was set aside. The matter was remitted to the High Court for disposal in accordance with the law, and the appeals were allowed without any order as to costs.

Issues considered

Whether the High Court erred in disposing of a second appeal without formulating a substantial question of law as mandated by Section 100 CPC.
Whether the proviso to sub‑section (5) of Section 100 CPC permits a High Court to hear a second appeal on a different substantial question of law without first formulating any question.

Legislation cited

Code of Civil Procedure, 1908s. 100

Subjects

Section 100 CPCsecond appealsubstantial question of lawhigh court jurisdictionprovisocivil procedurejudicial error

Judgment

A C.A. SULAIMAN AND ORS.
v.
STATE BANK OF TRAVANCORE, ALWAYEE AND ORS.

JULY 25, 2006

B [ARIJIT PASA VAT AND S.H. KAPADIA, JJ.]

Code ofCivil Procedure, 1908-Section JOO-Second Appeal-Disposed
of by High Court without formulating or hearing on any substantial question
C of la~Propriety of-Held, improper.
The question which arose for consideration in the present appeals is
as to whether the High Court erred in disposing of thr. second appeal
without formulating the substantial question or questions of law, as
mandated by Section 100 CPC.
D Respondents raised plea that though no substantial question of law
was formulated before the second appeals were adjudicated, yet that is
permissible, because proviso to sub-section (5) of Section I 00 permits the
High Court to decide a second appeal on a different substantial question
of law subject to recording of reasons.
'
E Disposing of the appeals and remitting the matter to High Court,
the Court

HELD: I. 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,
• F so formulated. That being so, the judgment cannot be maintained.
(154-F-G(

/shwar Dass Jain v. Sohan Lal. (200011 SCC 434; Roop Singh v. Ram
Singh, (20001 3 SCC 708; Kanhaiyalal v. Anupkumar, (20031 I SCC 430;
G Chadat Singh v. Bahadur Ram and Ors., [200416 SCC 359; Joseph Severane
and Ors. v. Benny Mathew and Ors., (20051 7 SCC 667 and Sasikumar c.nd
Ors. v. Kunnath Che/lappan Nair and Ors., 12005( 12 SCC 588, relied on.

2. The plea about pro,·iso to sub-section (5) of Section JOO instead
of supporting the stand of the Respondents rather goes against them. The
H I~
....
C.A. SULAIMANv. STATEBANKOFTRAVANCORE, ALWAYEE[PASAYAT,J.J J53
proviso is applicable only when any substantial question of law has already A
been formulated and it empowers the High Court to hear, for reasons to
be recorded, the appeal on any other substantial question of law. The
expression "on any other substantial question of law" clearly shows that
there must be some substantial question of law already formulated and
then only another substantial question of law which was not formulated B
earlier can be taken up by the High Court for reasons to be recorded, if
it is of the view that the case involves such question. 1156-C-DI

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4241-4243
of 2000.

From the Judgment and Order and dated 17.11.1997 of the High Court C
of Kerala at Ernakulam in S.A. Nos. 311, 517 and 885 of 1988.

Subramonium Prasad and Jay Kishor Singh for the Appellants.

P. Krishnamoorty, M.T. George, T.G. Narayanan Nair, A. Subhashini, D
A.V. Rangam, Roy Abraham and Himinder Lal for the Respondents.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Challenge in these appeals is to the judgment
rendered by a learned Single Judge of the Kerala High Court allowing the E
Second Appeals filed by the respondents by a common judgment. By the
impugned judgment the judgment and decree of the Trial Court as well as the
First Appellate Court were set aside.

It is not necessary to set out the factual details in view of the limited
submissions made by learned counsel for the parties. F
Learned coun5el for the appellants submitted that the High Court was
not justified in disposing of the Second Appeals without formulating the
substantial question or questions of law, as mandated by Section 100 of the
Code of Civil Procedure, 1908 (in short the 'Code').
G
Learned counsel for the respondents submitted that though the High
Court has not formulated the questions of law as required, yet on analyzing
the evidence, it concluded that the views expressed by the courts below were
not tenable in law. That is why the Second Appeals were allowed.

It is further submitted that though no substantial question of law was H
154 SUPREME COURT REPORTS [20061 SUPP. 4 S.C.R.

A fo1mulated before the Second Appeals were adjudicated, yet that is permissible,
because proviso to sub Section (5) of Section I00 permits the High Court to
decide a Second Appeal on a diffi:rent substantial question of law subject to
recording of reasons.

Section I00 of the Code deals with .. Second Appeal". The provision
B reads as follows:

.. JOO (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 court
subordinate to the High Court, if the Hi5!1 Court is satisfied that the
c 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 memoran::Ium of appeal shall
D 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 sh~jl be heard on the question so formulated and the
E 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
F 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 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. That being
so, the judgment cannot be maintained.
G
In !shwar Dass Jain v. Sohan Lal, [2000] I SCC 434 this Court in para
I0 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
H and it is not permissible to reverse the judgment of the first appellate
C.A. SULAIMANI'. STATE BANKOFTRAVANCORE, ALWAYEE[PASAYAT, J.] 155
court without doing so." A
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 I 00 CPC jurisdiction of B
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 I 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 C
time of admission of the second appeal as there is no reference of it
in the impugned judgment. Further, the fact finding 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 D
to when it became adverse and hostile. These findings recorded by
the two courts below were based on proper appreciation of evidence
and the .naterial on record and there was no perversity, illegality or
irregularity in those findings. If the defendant got the possession of
suit land as a lessee or under a batai agreement then from the
permissive possession it is for him to establish by cogent and E
convincing evidence to show hostile animus Page 1532 and possession
adverse to the knowledge of the real owner. Mere possession for a
long time does not result in conve11ing permissive possession into
adverse possession Thakur Kishan Singh v. Arvind Kumar, (1994] 6
sec 591. Hence the High Court ought not to have interfered with the F
findings of fact recorded by both the courts below.

The position has been reiterated in Kanhaiyalal v. Anupkumar, (2003]
1 sec 430.

In Chadat Singh V. Bahadur Ram and Ors., (2004] 6 sec 359, it was G
observed thus:

"6. In view of Section I 00 of the Code the memorandum of appeal
shall precisely state substantial question or questions 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 H
156 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A 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 JOO."

The position was highlighted by this Court in Joseph Severane and Ors. v.
Benny Mathew and Ors., [2005] 7 SCC 667 and Sasikumar and Ors. v.
B Kunnath Chellappan Nair and Ors.. [2005] 12 SCC 588].

The plea about proviso to sub-section (5) of Section I00 instead of
supporting the stand of the respondents rather goes against them. The proviso
is applicable only when any substantial question of law has already been
fonnulated and it empowers the High Court to hear, for reasons to be recorded,
C the appeal on any other substantial question of law. The expression "on any
other substantial question of law" clearly shows that there must be some
substantial question of law already formulated and then only another substantial
question of law which was not formulated earlier can be taken up by the
High Court for reasons to be recorded, if it is of the view that the case
D involves such question.

Under the circumstances the impugned judgment is set aside, we remit
the matter to the High Court for disposal in accordance with law. The appeals
are disposed of on the aforesaid tenns with no order as to costs.

B.B.B. Appeals disposed of.