Holding

A second appeal under Section 100 CPC is not maintainable unless the High Court formulates a substantial question of law, which was not done in the present case.

Summary

The appellant challenged the Gujarat High Court's order allowing a second appeal under Section 100 of the Code of Civil Procedure, 1908, despite the High Court not formulating any substantial question of law. The Supreme Court examined whether the High Court was justified in exercising its jurisdiction without such formulation and whether the proviso to sub‑section (5) of Section 100 could be invoked. It held that the High Court had not identified or formulated a substantial question of law, a mandatory requirement under Section 100(4) and (5). Consequently, the second appeal was not maintainable, and the High Court's order was set aside. The matter was remitted to the High Court for disposal in accordance with the law, and no costs were awarded.

Issues considered

Whether the High Court was justified in allowing a second appeal under Section 100 CPC without formulating a substantial question of law.
Whether the proviso to sub‑section (5) of Section 100 CPC can be invoked 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

Second appealSection 100 CPCSubstantial question of lawHigh Court jurisdictionAppeal maintainabilityProvisoCivil Procedure

Judgment

SHAH MANSUKHLAL CHHAGANLAL (D) THROUGH LRS. A
v.
GOHIL AMARSING GOVINDBHAI (D) THROUGH LRS.

DECEMBER 5, 2006

[DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] B

Code of Civil Procedure, 1908-Section JOO-Second appeal-
Maintain'!bility of. when substantial question of law not formulated-Held:
Not maintainable.
c
Words and Phrases-Expression 'on any other substantial question of
law'-Meaning of-In the context of S. I 00(5J of Code of Civil Procedure,
1908.

The question for consideration in the present appeal is whether High D
Court was justified in allowing the second appeal filed in terms of Section
100 of the Code of Civil Procedure, 1908.

Disposing of the appeal and remitting the matter to High-Court, the
Court

HELD: 1. A perusal of the impugned judgment passed by the High E
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. [137-C-D]

Ishwar Dass Jain v. Sohan Lal [2000) 1 SCC 434; Roop Singh v. Ram F
Singh, [2000) 3 SCC 708; Kanhaiyalal v. Anupkumar, [2003) l SCC 430;
Chadat Singh v. Bahadur Ram and Ors., [2004] 6 SCC 359; Joseph Severane
and Ors. v. Benny Mathew and Ors., [2005] 7 SCC 667; Sasikumar and Ors.
v. Kunnath Chellappan Nair and Ors., [2005) 12 SCC 588; Jawala Singh
(DJ by Lrs. v. Jagat Singh (DJ by Lrs., ·JT (2006) 8 SC 483 and C.A. Sulaiman
& Ors. v. State Bank of Travancore, Alwayee and Ors., [2006] 6 SCC 392, G
relied on.

2. The proviso to Sub-section (5) of Section 100 is applicable only
when any substantial question of law has already been formulated and it

135 H
136 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A empowers the High Court to hear, for reasons to be recorded, the appeal on
any other substantial question of law. The expression "on any other substantial
question of law" clearly shows that there must be some substantial question
of law already formulated and then only another substantial question of law
which was not formulated earlier cari be taken up by the High Court for
B reasons to be recorded, if it is of the view that the case involves such question.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5614 of2006.

From the final Judgment and Order dated 29.8.2002 of the High Court
of Gujarat at Ahmedabad in S.A. No. 491 of 1978.

C A. Raghunath for the Appellant.

Rameshwar Prasad Goyal for the Respondents.

The Judgment of the Court was delivered by

D Dr. ARIJIT PASAYAT, J. Leave granted.

Challenge in this appeal is to the judgment rendered by a learned Single
Judge of the Gujarat High Court. Second appeal filed by the respondents in
terms of Section 100 of the Code of Civil Procedure, 1908 (in short the
'Code') was allowed. Though various questions were raised in support of the
E appeal, it was primarily highlighted that the ~econd Appeal was allowed
without formulating any substantial.ques~ion of law.

There is no appearance on behalf of respondents when the matter is
called though learned counsel had entered appearance.

F Section 100 of the Code deals with "Second Appeal". The provision
reads as follows:

"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
G 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
passed ex-parte.

H
- SHAH MANSUKJILAL CHHAGANLAL (0) 111ROUGH LRS. v. GOHIL AMARSING GOVINDBHAI (0) 111ROUGH LRS. IfASAY AT. J. (

(3) In an appeal under this section, the memorandum of appeal shall
13 7

A
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.

(5) The appeal shall be heard on the question so formulated and the
B
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
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 c
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 the
Second Appeal was heard on the question, if any, so formulated. That being
so, the judgment cannot be maintained. D
In Ishwar Dass Jain v. Sohan Lal, [2000] 1 SCC 434, this Court in para
l 0 has stated thus:

"10. Now under Section 100 CPC, after the 1976 amendinent, it is
essential for the High Court to formulate a substantial question of law E
and it is not permissible to reverse the judgment of the first 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: F
"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 l 00 G
CPC. That apart, at the time of disposing of the matter, the High
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 finding courts after
appreciating the evidence held that the defendant entered into the
.... H
138 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A possession of 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 in those findings. If the defendant got the possession of
B suit land as a lessee or under a batai agreement then from the
permissive possession it is for him to establish by cogent and v

convincing evidence to show hostile animus Page 1532 and possession
adverse to the knowledge of the real owner. Mere possession for a
long time does not result in converting pennissive possession into
c 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."

The position has been reiterated in Kanhaiya/al v. Anupkumar, [2003)
1 sec 430.
D
In Chadat Singh v. Bahadur Ram and Ors., [2004) 6 SCC 359, it was
observed thus:

"6. In view of Section I 00 of the Code the memorandum of appeal
shall precisely state substantial question or questions involved in the
E appeal as required under Sub-section (3) of Section I 00. 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 100."

F The position was highlighted by this Court in Joseph Severane and
Ors. v. Benny Mathew and Ors., [2005] 7 SCC 667; Sasikumar and Ors
v. Kunnath Chellappan Nair and Ors., [2005] 12 SCC 588; Jawala Singh (D)
by Lrs. v. Jagat Singh (D) by Lrs., JT (2006) 8 SC 483 and C.A. Su/aiman &
Ors. v. State Bank of Travancore, Alwayee and Ors., [2006] 6 SCC 392.

G The proviso to Sub-section (5) of Section 100 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, the appeal on any other
substantial question of law. The expression "on any other substantial question
of law" clearly shows that there must be some substantial question of law
H already formulated and then only another substantial question· of law which
SHAH MANSUKHLALCHHAGANLAL (D) 'JllROUGH LRS. v. GOlllL AMARSING GOVINDBHAI (D) 'JllROUGH LRS. IPASAYAT. J.l } J9

was not formulated earlier can be taken up by the High Court for reasons A
to be recorded, if it is of the view that the case involves such question.

Under the circumstances, the impugned judgment is set,aside, and the
matter is remitted to the High Court for disposal in accord~.ce with law.

The appeal is disposed of in the aforesaid terms with no order as to B
ccsts.

D.G. Appeal disposed of.