Holding

A second appeal under Section 100 CPC must be heard on a substantial question of law formulated by the High Court; otherwise the judgment is invalid.

Summary

The appellant challenged the Bombay High Court's order allowing a second appeal under Section 100 of the Code of Civil Procedure, 1908. The original suit was filed by the respondent-plaintiff, and after a first appeal was decided in favour of the appellant-defendants, the respondent filed a second appeal which the High Court allowed. The appellant argued that the High Court disposed of the appeal without formulating a substantial question of law as required by Section 100. The Supreme Court held that the High Court must frame a substantial question of law and hear the appeal on that question; failure to do so makes the judgment untenable. Relying on several precedents, the Court set aside the High Court's order, thereby allowing the appeal.

Issues considered

Whether the High Court is justified in disposing of a second appeal under Section 100 CPC without formulating a substantial question of law

Legislation cited

Code of Civil Procedure, 1908s. 100

Subjects

Second appealSection 100 CPCSubstantial question of lawHigh Court jurisdictionCivil ProcedureAppeal procedure

Judgment

A M/S. WY AWAHARE & SONS AND ORS.
-(
v.
MADHUKARRAGHUNATHBHAVE

MARCH 7, 2007

B [DR. ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.]

Code ofCivil Procedure, 1908-Section JOO-Second appeal-Disposal
of by High Court without formulating substantial question of law-Justification
,/ .
of-Held: High Court is to formulate a substantial question of law and hear
c the appeal on the question formulated-Jn absence of the same, judgment
cannot be maintained.

The question which arose for consideration in this appeal, was whether
the High Court was justified in disposing of the second appeal without
D formulating the substantial question of law, as mandated by Section 100 CPC.

Disposing of the appeal, the Court
y
HELD: A perusal of the impugned judgment passed by High Court does
not show that any substantial question of law has been formulated or that the
E second appeal was heard on the question, if any, so formulated and as such
the judgment cannot be maintained. [Para 6) [634-D-E)

Jshwar Dass Jain v. Sohan Lal, [2000) 1 SCC 434; Roop Singh v. Ram
Singh, (2000) 3 SCC 708; Kanahaiyalal and Ors. v. Anupkumar and Ors., JT
(2002) 10 SC 98; Mathakala Krishnaiah v. V. Rajagopal, [2004) 10 SCC 676;
F Smt. Ram Sakhi Devi v. Chhatra Devi & Ors., JT (2005) 6 SC 167; Sasikumar
& Ors. v. Kunnath Chellappan Nair & Ors., [2005) 12 SCC 588; Gian Dass
v. The Gram Panchayat Village Sunner Kalan & Ors., [20061 6 SCC 271 and ~
Shah Mansukhlal Chhaganial (d) through Lrs. v. Gohil Amarsing Govindbhai
(d) through Lrs., (2006) 13 SCALE 99, relied on.

G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1187 of2007.

From the Judgment and Order dated 26.8.2004 of the High Court of 1-·
Judicature at Bombay Nagpur Bench, Nagpur In S.A. No. 43/1991.

H 632
WYAWAHARE&SONSr.MADHUKARRAGHUNATHBHAVE[PASAYAT,J.] 633

Aniruddha P. Mayee and Sanjeev Kumar Choudhary for the Appellants. A
S. V. Deshpande for the Respondent.

The Judgment of the Court was delivered by

DR. ARIJIT PASA YAT, J. I. Leave granted. B
2. Challenge in this appeal is to the order passed by the learned Single
Judge of the Bombay High Court allowing the second appeal filed by the
respondent under Section I 00 of the Code of Civil Procedure, 1908 (in short
'CPC').

Factual background in a nutshell is as follows:
c
3. The respondent-plaintiff filed a Special civil suit bearing No.2of1986
in the Court of Civil Judge, Sr. Division, Buldana against the appellants-
defendants. The Trial Court by the judgment and order dated 19 .9 .1987 partially
decreed the suit. Aggrieved by the judgment and decree of the Trial Court, D
the appellants-defendants preferred an appeal in the Court of Additional
District Judge, Buldana. By judgment and order dated 28.9.1990 the first
appellate court allowed the appeal and set aside the decree passed by the
Trial Court. The respondent-plaintiff preferred a second appeal before the
High Court of Bombay, Nagpur Bench. By the impugned judgment the learned E
Single Judge allowed the second appeal.

4. Though many points have been urged in support of the appeal, the
primary stand of the learned counsel for the appellants is that the second
appeal was allowed without framing any substantial question of law as
mandated by Section I 00 CPC. Learned counsel for the respondent submitted F
that though the High Court's judgment does not show that any substantial
question of law was framed yet the learned Single Judge at the time of
admission of the second appeal had referred to certain points urged.

5. Section JOO ofCPC deals with "Second Appeal". The provision reads
as follows: G
"Section JOO-Second Appeal: (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
High Court is satisfied that the case involves a substantial question H
634 SUPREME COURT REPORTS [2007] 3 S.C.R.

A oflaw.

(2) An appeal may lie under this section from an appellate decree
passed ex pa rte.

(3) Jn an appeal under this Section, the memorandum of appeal shall
precisely state the substantial question of law involved in the appeal.
B
(4) Where the High Court is satisfied that a substantial question of
law is involved in any case, it shall formulate that question.
,J <
(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
c 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
formulated by it, if it is satisfied that the case involves such question."
D
6. 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.
E . 7. Jn lshwar Dass Jain v. Sohan Lal, [2000] 1 SCC 434 this Court in para
JO, has stated thus:

"I 0. Now under Sectiori I 00 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 appellate
F Court without doing so."

8. 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:
G "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 100
H CPC. That apart, at the time of disposing of the matter the High Court
WYAWAHARE&SONSv.MADHUKARRAGHUNATHBHAVE[PASAYAT,J.] 635
did not even notice the question of law formulated by it at the time A
of admission of the second appeal as there is no reference of it in the
impugned judgment. Further, the fact findings courts after appre.ciating
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 to when it
became adverse and hostile. These findings recorded by the two B
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 \I batai agreement then from the permissive possession
it is for him to establish by cogent and convincing evidence to show C
hostile animus and possession adverse to the knowledge of the real·
owner. Mere possession for a long time does not result in converting
permissive 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 findings of fact recorded by both the
courts below." D

9. The position has been reiterated in Kanhaiyalal and Ors. v.
Anupkumar and Ors., (2003] 1 SCC 430, Mathakala Krishnaiah v. V.
Rajagopa/, [2004] 10 SCC 676, Smt. Ram Sakhi Devi v. Chhatra Devi & Ors.,
JT (2005) 6 SC 167, Sasikumar & Ors. v. Kunnath Che/lappan Nair & Ors., E
(2005] 12 SCC 588, Gian Dass v. The Gram Panchayat Village Sunner Kalan
& Ors., (2006] 6 SCC 27 l and Shah Mansukhlal Chhaganial (d) through Lrs.
v. Gohil Amarsing Govindbhai (d) through Lrs., (2006) 13 SCALE 99.

10. The appeal stands disposed of in the above terms. There will be no
order as to costs. F
N.J . Appeal disposed of.

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