Holding

A second appeal under Section 100 CPC must be predicated on a precisely stated and formulated substantial question of law; failure to do so invalidates the High Court's judgment.

Summary

The appellants filed a second appeal under Section 100 of the Code of Civil Procedure, challenging the Madhya Pradesh High Court's reversal of the trial and first appellate courts' findings of fact. The High Court failed to state any substantial question of law in its memorandum of appeal or judgment, yet entertained the appeal and delayed its judgment for nearly three years. The Supreme Court held that a second appeal can be entertained only when a substantial question of law is precisely framed under Section 100(3) and formulated under Section 100(4), and that the High Court's omission of such a question rendered its judgment untenable. The Court also noted that the excessive delay in pronouncing the judgment justified setting aside the High Court's orders. Consequently, the Supreme Court set aside the High Court judgments, allowed the appeals, and remitted the matters to the High Court for fresh disposal within six months.

Issues considered

Whether the High Court correctly entertained a second appeal without formulating a substantial question of law as required by Section 100 CPC.
Whether the delay of nearly three years in delivering the judgment warrants setting aside the High Court's orders.

Legislation cited

Code of Civil Procedure, 1908s. 100, s. 100(3), s. 100(4), s. 100(5)

Subjects

Second appealSubstantial question of lawSection 100 CPCDelay in judgmentCivil procedureRemand

Judgment

A KANHAIY ALAL AND ORS.
v.
ANUPKUMAR AND ORS.

NOVEMBER 27, 2002

B [SHIVARAJ V. PATIL AND ARIJIT PASA YAT, JJ.]

Code of Civil Procedure, 1908:

S. J00-Second appeal-Requirement offormulating substantial question
C of law-Judgment of High Court not indicating any substantial question of
law to have been formulated by High Court or that appeals were heard on any
substantial question of law-High Court allowing the second appeal .and
reversing the concurrent findings offact recorded by both the courts below--
Held, memorandum of a second appeal filed u/s. JOO shall precisely state the
D substantial question of law involved in the case as required under sub-section
(3)-Where the High Court is satisfied that any substantial quest:on of law is
involved, it shall.formulate that question under sub-section (4)-Second appeal
shall be heard on the question so formulated as provided in sub-section (5)-
Judgments ofHigh Court set aside_;_Matters remitted to High Court for disposal
in accordance with law and keeping in view the observations made herein.
E
/shwar Dass Jain v. Sohan Lal, [20001 1 SCC 434 and Roop Singh v.
Ram Singh, (2000) 3 SCC 708, relied on.

Judgment-Delay in pronouncement-In second appeals arguments heard
by High Court in November 1990---Judgments pronounced on 7.5.1993-
F Besides, no substantial question of law formulated by High Court-Second
appeals allowed and concurrent findings offact recorded by both the courts
below reversed-Held, judgments of High Court cannot be sustained and,
therefore, set aside-Matters remitted to High Court for decision afresh
expeditiously-Code of Civil Procedure, 1908-s. l OD-Administration of
G Justice.

Bhagwandas Fatehchand Daswani and Ors. v. HPA International and
Ors., (2000) 2 SCC 13, relied on.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1622-
H
366 i
\
KANHAIYALAL v. ANUPKUMAR 367

1623 of 1994. A
From the Judgment and Order dated 7.5.1993 of the Madhya Pradesh
High Court in Second Appeal Nos. 709 and 710 of 1974.

A.P. Dhamija, Ms. Anjali Doshi, Ms. Ruchi Kohli and Sushi I Kumar
Jain for the Appellants. B
S.K. Gambhir, R.R. Singh, Anil K. Sharma, Awnish Sinha, T.N.
Singh, W.A. Nomani and S.K. Agnihotri for the Respondents.

The following Order of the Court was delivered :

Heard the learned counsel for the parties.
c
The impugned judgments were passed by the High Court of Madhya
Pradesh at Jabalpur in second appeals reversing the concurrent findings of
fact recorded by the trial court as well as the first appellate court. Though the
High Court elaborately considered the contentions and the evidence placed D
on record, the impugned judgments do not reflect or indicate as to what was
the substantial question of law that arose for consideration between the parties,
as required under Section I 00 of the Code of Civil Procedure.

The learned senior counsel for the respondents, in support of the
impugned judgment, contended that though substantial question of law was E
not specifically stated in the impugned judgment, it can be made out from the
very judgment that the findings recorded by the trial court and the first
appellate court were perverse and perversity itself was a substantial question
of law for disturbing the findings of fact recorded by the courts below. He
also added that in the High Court of Madhya Pradesh, there is a practice that F
substantial question of law is separately framed at the time of admission in
the order sheet. We may notice one more fact that the arguments were heard
by the High Court and the appeals were reserved for judgment on 2 lst
November, 1990. The High Court pronounced the impugned judgments as
late as on 7th May, 1993 allowing the appeals, interfering with the findings
of fact recorded by the courts below. G
In a second appeal filed under Section I 00 of the Code of Civil
.Procedure, the Memorandum of Appeal shall precisely state the substantial
question of law involved in the appeal as required under sub-section (3).
Where the High Court is satisfied that in any case a substantial question of
·• law is involved, it shall formulate that question under sub-section ( 4). The H
368 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A second appeal shall be heard on the question so formulated as stated in sub-
section (5).

The impugned judgments do not indicate any substantial question of
law formulated and that the second appeals were heard on any substantial
question of law.
B
This Court has taken the view in cases more than one that in second
appeals, substantial question or questions of law must arise for consideration
and the appeals are to be heard on the substantial questions of law so
formulated.

1C In Jshwar Dass Jain v. Sohan Lal, (2000] I SCC 434, this Court, in
para IO, has stated thus:

"IO. Now under Section 100 CPC, after the 1976 Amendment,
it is essential for the High Court to formulate a substantial question
of law and it is not permissible to reverse the judgment of the first
D appellate court without doing so."

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:

E "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. I00
CPC. That apart, at the time of disposing of the matter the High
F
Court did not even notice the question of law formulated by it at the
time of admission of the second appeal as there is no reference of it
in the impugned judgment. Further, the fact-findings 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
G h.is possession was permissive and there was no pleading or proof as
to when it became adverse and hostile. These findings recorded by
the two courts below were based on proper appreciation of evidence
and the material 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
H
KANHAIY ALAL v. ANUPKUMAR 369
permissive possession it is for hi1n to establish by cogent and A
convincing evidence to show hostile ani1nus and possession adverse
to the kno\vledge of the real owner. Mere possession for a long ti1ne
does not result in converting pennissive possession into adverse
possession (Thakur Kishan Singh v. Arvind Kumar, (1994] 6 SCC
591. Hence, the High Court ought not to have interfered with the B
findings of fact recorded by both the courts below."

(Emphasis supplied)

In the light of what is stated above, in our view, the impugned judgments
cannot be sustained. Further, as stated above, the arguments were heard in
November, I 990 and the High Court pronounced the judgments on 7th May, C
I993. This Comt in Bhagwandas Fatechand Daswani and Ors. v. HPA
International and Ors., (2000] 2 SCC 13, dealing with the contention that the
long delay in delivery of judgment is sufficient to set aside the judgment
under appeal without going into this broad question, set aside the judgment
under appeal on the ground of delay in delivery of judgment without expressing D
any opinion on the merits of the case and remitted the case to the High Comt
for deciding the appeal afresh on 1nerits. While doiilg so this Court observed,
"However, it is correct to this extent that a long delay in delivery of judgme.nt
gives rise to unnecessary speculations in the minds of parties to a case.
Moreover, the appellants whose appeals have been dismissed by the High
Court may have the apprehension that the arguments raised at the Bar have E
not been reflected or appreciated while dictating the judgments - nearly after
five years ............. We, therefore, on this short question, set aside the judgment
under appeal." In this view also the judgments of the High Court under
challenge cannot be sustained.

In the circumstances, the impugned judgments are set aside. The appeals
F
are allowed. We remit these matters to the High Court for disposal in
accordance with law, keeping in vi~w the observations made above.

Taking note of the fact that the suits are of the year l 972, we request
the High Court to dispose of the second appeals within a period of six months G
from ihe date of receipt of the copy of this order.

R.P. Appeals allowed.