Supreme Court of India
DHARAM SINGHversusKARNAIL SINGH AND ORS.
- Citation
- 2008 INSC 1139
- Decided
- 13 October 2008
- Disposal
- Disposed off
- Bench
- ARIJIT PASAYAT
Holding
The proviso to sub‑section (5) of Section 100 CPC is applicable only when a substantial question of law has already been formulated; consequently, a second appeal cannot be heard without such formulation.
Summary
Dharam Singh filed a suit seeking a declaration of ownership of a property and restraining the defendants from transferring it. The trial court and the first appellate court decreed in his favour, but the High Court, on a second appeal filed by the defendants under Section 100 of the Code of Civil Procedure, set aside both decrees and dismissed the suit. The Supreme Court was asked to examine whether the High Court could entertain the second appeal without formulating a substantial question of law, relying on the proviso to sub‑section (5) of Section 100. The Court held that the proviso is operative only when a substantial question of law has already been formulated, and that the High Court must formulate such a question before hearing the appeal. Since the High Court failed to do so, its judgment was set aside and the matter remitted for fresh determination. The appeal was disposed of.
Issues considered
- Can a High Court entertain a second appeal under Section 100 CPC without first formulating a substantial question of law?
- Does the proviso to sub‑section (5) of Section 100 CPC apply when no substantial question of law has been formulated?
Legislation cited
- Code of Civil Procedure, 1908s. 100(1), s. 100(3), s. 100(4), s. 100(5)
Subjects
Section 100 CPCsecond appealsubstantial question of lawprovisohigh court jurisdictioncivil procedureproperty law
Judgment
[2008] 14 S.C.R. 366
t
. ',....
A DHARAM SINGH
v.
. KARNAIL SINGH AND ORS.
(Civil Appeal No. 6087 of 2008)
.- '
OCTOBER 13, 2008
B
[DR. ARIJIT PASAYAT AND J:M. PANCHAL, JJ]
Code of Civil Procedure, 1908:
.· s: 100(5), proviso - Second appeal - Allowed by High
C Court without formulating any substantial question of law -
HELD: Proviso to sub-section (5) to s. 100 is applicable only
when any substantial question of law has already been formu-
/a_ted and it empowers the High Court to hear, for reasons to
be recorded, the appeal on any other substantial question of
D · law...:.... The impugned judgment does not show that any sub-
stantial question of law has been formulated and the second
appeal was heard on such question - The judgment of High }
Court set aside and the matter remitted to it for decision afresh Y'
'1--
'' in ac_corda17ce with law. . ,
E ~The plaintiff-appellant filed a suit for a declaration that
he·had·become owner of the suit property by way of ex-
tinguishmentof equity of redemption qua the rights of the
defendants; and further for consequential relief of restrain-
ing the defendants from transferring the suit property in
F favour of any body. The trial Court decreed the suit and -
the ·first appellate Court upheld the decree. However, in
the second appeal filed by the defendant, the High Court
set aside the judgments and decrees of both the courts ·
below' and dismissed the suit.
G
In the instant appeal filed by the defendant, it was
contended for the appellant that the High Court erred in
allowing the second appeal without formulating any ques-
tion of law as required u/s 100 of the Code of Civil Proce-
H 366
DHARAM SINGH v. KARNAIL SINGH AND ORS. 367
~i du re, 1908. The judgment of the High Court was defended A
on behalf of the respondent-plaintiff on the ground pro-
viso to sub-section (5) of s.100 of the Code.
Disposing of the appeal, the Court
HELD: 1.1 The judgment passed by the High Court B
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 judg-
ment cannot be maintained. [para 7] [370-G]
/shwar Dass Jain v. Sohan Lal 1999 (5) Suppl. SCR 24 c
=2000 (1) SCC 434; Roop Singh v. Ram Singh 2000 (2) SCR
605 = 2000 (3) SCC 708; Kanhaiya/al v. Anupkumar 2002 (4)
Suppl. SCR 366 = 2003 (1) SCC 430; Chad at Singh v.
Bahadur Ram and Ors. 2004 (3) Suppl. SCR 298 = 2004 (6)
SCC 359; Joseph Severane and Others v. Benny Mathew and D
Others 2005 (3) Suppl. SCR 429 = 2005 (7) SCC 667;
Sasikumar and Others v. Kunnath Chel/appan Nair and 0th-
ers 2005 (12) SCC 588; and Gian Dass v. Gram Panchayat,
Village Sunnder Kalan and Ors. 2006 (3) Suppl. SCR 781 =
2006 (6) sec 271 - relied on. E
1.2 The proviso to sub-s.(5) of s.100 CPC is appli-
cable only when any substantial question of .law has al-
ready been formulated and it empowers the High Court
to hear, for reasons to be recorded, the appeal on any
"\ l' other substantial question of law. The expression "on any F
other substantial question of law" clearly shows that there
must be some substantial question of law already formu-
lated 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 G
that the case involves such question. [para 13] [372 A-C]
......... ~.
1.3 The impugned judgment is set aside, and the
matter is remitted to the High Court so far as it relates to
Second Appeal No.285 of 2000 for disposal in accordance
H
368 SUPREME COURT REPORTS [2008] 14 S.C.R.
A with law. (para 14] [372 - D]
'1~-
CASE LAW REFERENCE
1999 (5) Suppl. SCR 24 relied on para 8
2000 (2) SCR 605 relied on para 9
B 2002 (4) Suppl. SCR 366 relied on para 10
2004 (3) Suppl. SCR 298 relied on para 11
~
2005 (3) Suppl. SCR 429 ·relied on para 12
2005 (12) sec 588 relied on para 12
c
2006 (3) Suppl. SCR 781 relied on para 12
CIVILAPPELLATE JURISDICTION : Civil Appeal No. 6087
of 2008
From the final Judgment and Order dated 25.7.2006 of
D
the High Court of Punjab and Haryana at Chandigarh in RS.A.
No. 285 of 2000
'/ '
Kuldip Singh, R.K. Pandey, T.P. Mishra and H.S. Sandhu
for the Appellant.
E Arvinder Singh and Jitendra Kumar for the Respondents.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
F 2. Challenge in this appeal is to the judgment of a learned
Single Judge of the Punjab and Haryana High Court allowing the < ,A
~-
second appeal filed in terms of Section 100 of the Code of Civil
Procedure, 1908 (in short 'the Code'). The second appeal was
filed by the respondents before the High Court questioning cor-
G
rectness of the judgment and decree dated 25.10.1999 passed
by learned Additional District Judge, Ropar. The learned Addi-
tional District Judge had dismissed the appeal against the judg-
ment and decree dated 25.09.1997 passed by learned Civil --+
Judge (Senior Division), Kharar, vide which the Suit of the present
appellant, who was the defendant in the Suit was decreed. The
H
DHARAM SINGH v. KARNAIL SINGH AND ORS. 369
[DR. ARIJIT PASAYAT, J.]
-~·
Suit was filed for a declaration to the effect that plaintiff had be- A
come owner of the suit property by way of extinguishment of eq-
uity of redemption qua the rights of the defendants and further
with consequential relief of restraining the defendants from trans-
ferring the suit property in favour of any body, as detailed in the
head note of the plaint. The respondents contested the suit and B
filed written statements. Four issues were framed and evidence
was laid. After considering the evidence brought on record,
learned Additional Civil Judge (Senior Division), Kharar, vide judg-
ment and decree dated 25.09.1997 decreed the Suit. Aggrieved
by the said judgment and decree, appeal was filed before the c
First Appellate Court, which was dismissed by learned Additional
District Judge by judgment and decree dated 25.10.1999.
3. As noted above, the defendants filed the second ap-
peal. By the impugned judgment, the High Court allowed the
appeal and set aside the judgments and decrees of the courts D
.. below and the Suit was dismissed. In support of the appeal,
~
learned counsel for the appellant submitted that the second
appeal was dismissed without formulating any question of law,
which is a mandatory requirement of Section 100 of the CPC.
Several other points on the merits of the case were also urged. E
4. In response, learned counsel for the respondents sub-
mitted that on considering the memorandum of appeal and the
grounds indicated therein, the High Court had allowed the sec-
ond appeal and, therefore, there was nothing wrong. It is stated
' \
-'-
that after considering the materials on record, the High Court F
had recorded its findings that the suit deserves to be dismissed.
5. It is further submitted that though no substantial ques-
tion of law was formulated before the Second Appeal was adju-
dicated, yet that is permissible, because proviso to sub Sec-
G
__._.,,
1
tion (5) of Section 100 of the Code permits the High Court to
decide a second appeal on a different substantial question of
law subject to recording of reasons.
6. Section 100 of the Code deals with "second appeal".
The provision reads as follows: H
370 SUPREME COURT REPORTS [2008] 14 S.C.R.
A "100 (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
B a substantial question of law.
_(?)An appeal may lie under this section from an appellate
-~
decree passed ex-parte.
(3) In an appeal under this section, the memorandum of
c 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.
D
(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:
E 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
F the case involve8 such question."
7. A perusal of the impugned judgment passed by the High
Court does not show that any substantial question of law has
1;>een formulated or that the second appeal was heard on the
G question, if any, so formulated. That being so, the judgment can-
nqt be maintained.
8.ln lshwar Dass Jain v. Sohan Lal [2000 (1) SCC 434]
this Court in para 10 has stated thus:
"10. Now under Section 100 CPC, after the 1976
H
DHARAM SINGH v. KARNAIL SINGH AND ORS. 371
[DR. ARIJIT PASAYAT, J.]
-'-t
amendment, it is essential for the High Court to formulate A
a substantial question of law and it is not permissible to
reverse the judgment of the first appellate court without
doing so."
9. Yet again in Roop Singh v. Ram Singh [2000 (3) SCC
708] this Court has expressed that the jurisdiction of a High B
--t. Court is confined to appeals involving substantjal question of
law. Para 7 of the said judgment reads:
"?. It is to be reiterated that under Section 100 CPC
jurisdiction of the High Court to entertain a second appeal c
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."
10. The position has been reiterated in Kanhaiyalal v. D
Anupkumar [2003 (1) SCC 430].
"' 11. In Chadat Singh v. Bahadur Ram and Ors. [2004 (6)
sec 359], it ~as observed thus:
"6. In view of Section 100 of the Code the memorandum E
of appeal shall precisely state substantial question or
questions involved in the appeal as required under Sub-
section (3) of Section 100. Where the High Court is
satisfied that in any case any substantial question of law
"'-
is involved, it shall formulate that question under Sub-
~ F
section (4) and the second appeal has to be heard on the
question so formulated as stated in Sub-section (5) of
Section 100."
12. The position was highlighted by this Court in Joseph
Severane and Others v. Benny Mathew and Others [2005 (7) G
SCC 667], Sasikumar and Others v. Kunnath Chel/appan Nair
and Others [2005 (12) SCC 588] and in Gian Dass v. Gram
Panchayat, Village Sunnder Kalan and Ors. [2006 (6) SCC
271].
H
372 SUPREME COURT REPORTS [2008] 14 S.C.R.
A 13. The plea about proviso to sub-section (5) of Section
100 instead of supporting the stand of the respondent rather
goes against them. The proviso is applicable only when any
substantial question of law has already been formulated and it
empowers the High Court to hear, for reasons to be recorded,
s · the appeal on any other substantial question of law. The expres-
sion "on any other substantial question of law" clearly shows
that there must be some substantial question of law already for-
mulated and then only another substantial question of law which
was not formulated earlier can be taken up by the High Court
C for reasons to be recorded, if it is of the view that the cas.e in-
volves such question.
14. Under the circumstances, the impugned judgment is
set aside, we remit.the matter to the High Court so far as it
relat~s to Second Appeal No.285 of 2000 for disposal in ac-
D corqance with law. The appeal is disposed of on the aforesaid
terms with no order as to costs. y'
R.P. Appeal disposed of.
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