Supreme Court of India
K.K. KANNAN (D) BY LRS.versusKOOLIVATHUKKAL KARIKKAN MANDI & ORS.
- Citation
- 2009 INSC 1296
- Decided
- 10 December 2009
- Disposal
- Appeal(s) allowed
Holding
A High Court must, after being satisfied that a substantial question of law exists, expressly formulate that question and allow the respondent to argue its non‑existence; failure to do so invalidates the appellate order.
Summary
The appellants, K.K. Kannan and others, filed a second appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the High Court of Kerala's reversal of concurrent lower‑court decisions. The High Court had merely listed the grounds in the memorandum of appeal as "substantial questions of law" without actually formulating any such question, and it did not give the respondents an opportunity to argue that no substantial question existed. The Supreme Court held that Section 100 mandates that the High Court must first be satisfied that a substantial question of law is involved, then expressly formulate that question, and finally hear the appeal on that formulation, allowing the opposite party to contest its existence. The Court found the High Court had breached these procedural requirements, set aside its judgment, and remitted the matter for fresh disposal. No merits of the underlying dispute were decided.
Issues considered
- Did the High Court comply with the mandates of Section 100 CPC in formulating a substantial question of law before entertaining the second appeal?
- Is a mere reference to the grounds stated in the memorandum of appeal sufficient to satisfy the requirement of formulating a substantial question of law?
- Must the respondent be allowed to argue that the case does not involve any substantial question of law under Section 100 CPC?
Legislation cited
Subjects
Section 100 CPCsecond appealsubstantial question of lawformulation of questionappellate jurisdictionprocedural compliance
Judgment
[2009] 16 (ADDL.) S.C.R. 362
A K.K. KANNAN (D) BY LRS.
V. ~ _.
KOOLIVATHUKKAL KARIKKAN MANDI & ORS.
(Civil Appeal No. 612 of 2003)
DECEMBER 10, 2009
B
[P. SATHASIVAM AND ASOK KUMAR GANGULY, JJ.]
Code of Civil Procedure, 1908:
A •
c s.100 - Second appeal - Formulation of substantial
question of law - Concurrent findings of courts below reversed
by High Court without formulating any substantial question of
law - HELD: High Court has not fulfilled the mandates as
provided in s.100 and has not formulated any question after
D satisfying that a substantial question of law involved in the
appeal - Mere reference to grounds stated in memorandum
of second appeal would not satisfy the mandates prescribed
in s. 100 - In order to fulfil the conditions of s.100, if High Court +.
r
is satisfied that the substantial question of law is involved, it
is to formulate that question and then hear the second appeal
E
thereon - In such an event it is also the duty of High Court to
permit the respondent to argue that the case does not involve
any such question - In the instant case, such a course has
not been adopted - Judgment of High Court is set aside and
matter remitted to it for disposal afresh expeditiously.
F
Kanhaiyalal & Ors. vs. Anupkumar & Ors. 2002 (4)
Suppl. SCR 366 = 2003 (1) SCC 430; Chadat Singh
Vs Bahadur Ram & Ors. (2004) 3 Suppl. SCR 298= 2004
(6) SCC 359; Sasikumar & Ors. Vs. Kunnath Chellappan Nair ,_-
G & Ors. (2005) 12 SCC 588; Joseph Severance & Ors . . Vs.
Benny Mathew & Ors. 2005 (3) Suppl. SCR 429 = 2005
(7) SCC 667; Gian Dass . Vs. The Gram Panchayat Village
Sunner Kalan & Ors. 2006 (3) Suppl. SCR 781 = 2006
~ '
(6) sec 271, relied on.
H 362
K.K. KANNAN (D) BY LRS. v. KOOLIVATHUKKAL 363
KARIKKAN MANDI & ORS.
Case Law Reference: A
2002 (4) Suppl. SCR 366 relied on para 5
2004 (3 ) Suppl. SCR 298 relied on para 5
2005 (3 ) Suppl. SCR 429 relied on para 5
B
2006 (3 ) Suppl. SCR 781 relied on para 5
. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 612
~ .. of 2003.
From the Judgment & Order dated 23.11.2000 of the High C
Court of Kerala, Ernakulam in S.A. 834 of 1990.
WITH
C.A. No. 613 of 2003. D
-~ K. Rajeev for the Appellants.
A.S. Nambiar, Sewa Ram, P.K. Manohar for the
Respondents.
E
The following Order of the Court was delivered
ORDER
Heard learned counsel for both sides.
~ F
2. Legal representatives of defendant No.1 and defendant
No.2 are the appellants before us. Even at the outset, learned
counsel appearing for the appellants pointed out that the High
Court while reversing the concurrent decisions of both the
Courts below, committed an error in not adhereing the
mandates prescribed in Section 100 of the Code of Civil G
Procedure. Apart from the said contention, he also pointed out
~ tthat the High Court went wrong in interfering with the factual
decisions arrived at by both the Courts.
3. With regard to the first contention in para 3 of the H
364 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A impugned judgment, the High Court has merely referred the .....
grounds A to F raised in the memorandum of second appeal
as substantial questions of law for consideration. After referring
the same, the High Court without considering and formulating
the substantial question of law allowed the second appeal and
B set aside the conclusion arrived at by the Courts below.
4. It is useful to refer Section 100 of the Code of Civil
Procedure which reads as under:
A •
"100. Second appea/.-(1) Save as otherwise expressly
c 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.
D
(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 precisely state the substantial question of law
E 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 respondent shall, at the
(6) hearing of the appeal, be allowed to argue that the case
does not involve such question:
G
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
H satisfied that the case involves such question."
K.K. KANNAN (0) BY LRS. v. KOOLIVATHUKKAL 365
KARIKKAN MANDI & ORS.
•--1
5. While considering the above provision this Court in A
series of decisions held that before entertaining the second
appeal, the High Court has to satisfy that the case involves a
substantial question of law. As per sub-section (3), the
memorandum of appeal should state the substantial question
of law involved in the second appeal. Sub-section (4) mandates B
that on satisfying that a substantial question of law is involved,
the High Court should formulate the said question for
. ,\
consideration. As per sub-section (5), the High Court has to
hear the question so formulated and take a decision one way
or the other. (vide Kanhaiyala/ & Ors. Versus Anupkumar & c
Ors., (2003) 1 SCC 430, Chadat Singh Versus Bahadur Ram
& Ors., (2004) 6 SCC 359, Sasikumar & Ors. Versus Kunnath
Chellappan Nair & Others, (2005) 12 SCC 588, Joseph
Severance & Ors. Versus Benny Mathew & Ors., (2005) 7
SCC 667 and Gian Dass Versus Gram Panchayat, Village 0
Sunner Kalan & Ors., (2006) 6 SCC 271 .
....>
, 6. On going through the impugned order of the High Court,
we are of the view that the High Court has not fulfilled the
mandates as provided in Section 100 C.P.C. The High Court
has merely mentioned grounds A to F as stated in the E
memorandum of second appeal but has not formulated the
question after satisfying that a substantial question of law
involved in that appeal. Mere reference to the grounds as stated
in the memorandum of second appeal would not satisfy the
.... ... mandates prescribed in Section 100 more particularly when the F
High Court allowed the second appeal setting aside concurrent
decisions of the Courts below. In order to fulfill the conditions
mentioned in Section 100 if the High Court is satisfied that the
,' substantial question of law is involved, it is to formulate that
question, then hear the second appeal on the question so G
formulated. In the event of formulating such question, it is also
the duty of the Court to permit the respondent to argue that the
-~ case does not involve any such question. In the case on hand,
such recourse has not been adopted by the High Court.
H
366 SUPREME COURT REPORTS [2009] 16 {ADDL.) S.C.R.
A 7. We are satisfied that the procedure adopted by the High -. •
Court is not in accordance with Section 100 of the C.P,C.
Without going into the ·merits of the claim made by both the
parties, we set aside the impugned judgment of the High Court
and remit the same for fresh disposal as indicated above. We
B make it clear that we have not expressed anything on the merits
of the claim of both parties. We request the High Court to
consider and pass fresh orders expeditiously. Both the appeals
are allowed on the above terms. No costs.
A •
C R.P. Appeals allowed.
-
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