Holding

A second appeal under Section 100 CPC is invalid unless the High Court formulates a substantial question of law and hears the appeal on that question.

Summary

The Supreme Court examined a civil appeal (No. 918 of 2000) wherein the Himachal Pradesh High Court had allowed a second appeal under Section 100 of the Code of Civil Procedure, 1908, without formulating any substantial question of law. The appellant contended that the High Court erred by reversing the findings of fact of the lower courts without first identifying and hearing a substantial question of law as mandated by sub‑sections (3), (4) and (5) of Section 100. The Court reiterated that the memorandum of appeal must state the substantial question, the High Court must formulate it, and the appeal must be heard on that question; otherwise the judgment is untenable. Citing precedents such as Ishwar Dass Jain v. Sohan Lal and Roop Singh v. Ram Singh, the Court held that the High Court had failed to comply with these statutory requirements. Consequently, the Supreme Court set aside the impugned judgment and remitted the matter to the High Court to dispose of it after properly formulating any substantial question of law. No order as to costs was made.

Issues considered

Whether the High Court was justified in disposing of a second appeal under Section 100 CPC without formulating a substantial question of law as required by the statute.

Legislation cited

Code of Civil Procedure, 1908s. 100

Subjects

Section 100 CPCsecond appealsubstantial question of lawformulation of questionappellate jurisdictioncivil procedureHigh Courtremand

Judgment

A MADAN LAL AND ANR..
v.
BAL KRISHAN AND ORS.

NOVEMBER 14, 2005

B [ARIJIT PASA YAT AND TARUN CHATTERJEE, JJ.]

Code of Civil Procedure, 1908-Section JOO-Second appeal-Disposal
ofby High Court without formulating substantial question oflaw-Justification
C of-Held: It is essential for High Court to formulate a substantial question
of law and hear the appeal on the question formulated-In absence, such
judgment cannot be maintained-Matter remitted back to High Court for
disposal after formulating substantial question of law.

In this appeal, the issue involved was as to whether the High Court was
D justified in allowing the second appeal without formulating the substantial
question of law, as mandated by Section 100 CPC.

Disposing of the appeal, the Court

HELD: 1.1. In view of Section 100 CPC, 1908, the memorandum of appeal
E shall precisely state substantial questions or questions of law involved in the
appeal as required under sub-section (3) of Section 100. Where High Court
is satisfied that in any case any substantial question of 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
100 CPC. (737-F, G)
F
1.2. In the instant case, 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 second appeal was heard on the question, if any, so
formulated and as such the judgment cannot be maintained. The matters are
G remitted back to High Court for disposal after formulating the substantial
question of law, if any and in accordance with law. (738-E; 739-F)

Jshwar Dass Jain v. Sohan Lal, (2000) l SCC 434; Roop Singh v. Ram
Singh, (2000) 3 SCC 708; Kanahaiyalal and Ors. v. Anupkumar and Ors., JT
(2002) 10 SC 98; Prembai v. Jhaneshwar Ramakrishna Patange and Ors.,

H 736
MADAN LAL v. BAL KRIS HAN [PASA YAT, J.] 737
(2003) AIR SCW 2922; Chadat Singh v. Bahadur Rama and Ors. JT 12004) A
6 SCC 296 and Mathakala Krishnaiah v. V. Rajagopal, JT 12004) 9 SCC 205,
relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 918 of2000.

From the Judgment and Order dated 2.9.98 of the Himachal Pradesh B
High Court at Shimla in R.S.A. No. 273 of 1992.

Gopal Balwant Sathe for the Appellants.

Ramesh Babu M.R. for the Respondents.

The Judgment of the Court was delivered by
c
ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment rendered
by a learned Single Judge of the Himachal Pradesh High Court in a Second
Appeal preferred under Section I 00 of the Code of Civil Procedure, 1908 (in
short the 'Code). By the impugned judgment the learned Single Judge set D
aside the judgments and decrees of the courts below and decreed the suit of
the plaintiffs for declaration of title and injunction as prayed for. Though
several points were urged in support of the appeal it was basically contended
that findings of fact recorded by the two courts were set aside even without
formulating question of law muchless a substantial question of law.
'· E
Learned counsel for the respondents on the other hand submitted that
though specifically the questions of law were not formulated, the High Court
has rightly taken note of the legal position as applicable to the factual
background and has allowed the appeal.

In view of Section I 00 of the Code the memorandum of appeal shall F
precisely state substantial question or questions of law 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-section (4) and the second appeal has to
be heard on the question so formulated as stated in sub-section (5) of Section G
100.

Section I 00 of the Code deals with "Second Appeal". The provision
reads as follows:

"Section 100- (I) Save as otherwise expressly provided in the body H
738 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A 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.

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

(3) In an appeal under this Section, the memorandum of 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
c law is involved in any case, it shall formulate that question. ·

(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: .,
'

Provided that nothing in this sub-section shall be deemed to take
D 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."

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
E the second appeal was heard on the question, if any, so formulated. That ;'
being so, the judgment cannot be maintained.

In Ishwar Dass Jain v. Sohan Lal, [2000] I SCC 434) this Court in para ,_
10, has stated thus: -'
F "10. 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 appellate '
I

t
Court without doing so."

Yet again in Roop Singh v. Ram Singh, [2000] 3 SCC 708 this Court has
G
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 the .
High Court to entertain a second appeal is confined only to such
H appeals which involve a substantial question of law and it does not
MADAN LAL v. BAL KRISHAN [PASA YAT, J.] 739
confer any jurisdiction on the High Court to interfere with pure A
questions of fact while exercising its jurisdiction under section 100
CPC. That apart, at the time of disposing of the matter the High Court
did not even notice the question of law fonnulated by it at the time
of admission of the second appeal a~ there is no reference of it in the
impugned judgment. Further, the fact findings courts after appreciating
the evidence held that the defendant entered i~to the possession of B
the premises as a batai, that is to say, as a tenant and his possession
was pennissive 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 C
in those findings. If the defendant got the possession of suit land as
a lessee or under a batai agreement then from the pennissive possession
it is for him to establish by cogent and convincing evidence to show
hostile animus and possession adverse to the knowledge of the real
owner. Mere possession for a long time does not result in converting
pennissive possession into adverse possession (Thakur Kishan Singh D
v. Arvind Kumar, [1994] 6 sq: 591). Hence the High Court ought not
to have interfered with the findings of fact recorded by both the
courts below."

The position has been reiterated in Kanahaiyalal and Ors. v. E
Anupkumar and Ors., JT (2002) 10 SC 98, Premabai v. Jnaneshwar
Ramakrishna Patange and Ors., (2003) AIR SCW 2922, Chadat Singh v.
Bahadur Rama and Ors., JT [2004] 6 SCC 296 and Mathakala Krishnaiah v.
V. Rajagopal, JT [2004] 9 SCC 205.

In the circumstances, the impugned judgment is set aside. We remit the F
matter to the High Court for disposal after formulating the substantial question
of law, if any, and in accordance with law. The appeal is disposed of in the
aforesaid terms with no order as to costs.

N.J. Appeal disposed of.