Supreme Court of India
V.RAMASWAMYversusRAMACHANDRAN & ANR
- Citation
- 2009 INSC 553
- Decided
- 17 April 2009
- Disposal
- Disposed off
- Bench
- ARIJIT PASAYAT
Holding
Under Section 100 of the CPC, a High Court must formulate a substantial question of law and hear the second appeal on that question; failure to do so renders the judgment void.
Summary
The Madras High Court allowed a second appeal under Section 100 of the Code of Civil Procedure without formulating any substantial question of law, which the appellant challenged. The Supreme Court examined whether the High Court was justified in disposing of the appeal without such formulation, as mandated by Section 100. Relying on the statutory requirement that the High Court must state a substantial question of law and hear the appeal on that question, the Court found the High Court had failed to comply. Precedent decisions were cited to reaffirm the necessity of framing a substantial question before adjudicating a second appeal. Consequently, the Supreme Court set aside the High Court judgment and remitted the matter back for proper formulation of the question and disposal.
Issues considered
- Whether a High Court must formulate a substantial question of law before disposing of a second appeal under Section 100 of the CPC.
- Whether the appeal can be validly disposed of without such formulation.
- Whether the High Court had jurisdiction to entertain the second appeal without a formulated substantial question of law.
Legislation cited
Subjects
Second appealSection 100 CPCsubstantial question of lawHigh Court jurisdictioncivil procedureappeal procedure
Judgment
[2009] 6 S.C.R. 520
-
.
A V. RAMASWAMY
v.
RAMACHANDRAN & ANR.
(Civil Appeal No. 2634 of 2009)
APRIL 17, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]
•
Code of Civil Procedure, 1908 - Section 100 - Second
c 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 the
appeal on the question formulated - In absence of the same,
judgment cannot be maintained - Matter remitted back to
D High Court.
.
The question which arose for consideration in this
appeal, was whether the High Court was justified in
disposing of the second appeal without formulating the
substantial question of law, as mandated by section
E 100 CPC.
Disposing of the appeal, the Court
HELD: A perusal of the impugned judgment passed
by High Court does not show that any substantial
F
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 and is
set aside. Matter is remitted to High Court to decide after
formulating substantial question of law, if any. [Para 6]
G [523-A-C]
lshwar 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. 2003 (1) SCC 430; Mathakala
H 520
V.RAMASWAMY v. RAMACHANDRAN & ANR. 521
...
KrishnaiClh v. V. Rajagopal 2004 (10) SCC 676; Smt. Ram A
Sakhi Oevi v. Chhatra Devi & Ors. JT 2005 (6) SC 167;
Sasikumar & Ors. v. Kunnath Chel/appan Nair & Ors. 2005
(12) SCC 588; Gian Dass v. The Gram Panchayat Village
Sunner Kalan & Ors. 2006 (6) SCC 271; Shah Mansukhla/
Chhagania/ (D) through Lrs. v. Gohil Amarsing Govindbhai B
(0) through Lrs. 2006 (13) SCALE 99; Nune Prasad & Ors.
v. Nune Ramarisna 2008 (8) SCC 258, relied on.
' • Case Law Reference:
2000 (1) sec 434 Relied on Para 6 c
2000 (3) sec 108 Relied on Para 7
2003 (1) sec 430 Relied on Para 8
2004 (10) sec 676 Relied on Para 8
l JT 2005 (6) SC 167
2005 (12) sec 588
Relied on
Relied on
Para 8
Para 8
D
2006 (6) sec 211 Relied on Para 8
E
2006 (13) SCALE 99 Relied on Para 8
2008 (8) sec 258 Relied on Para 8
CIVIL APPELLATE JURISDICTION : Civil Appeal No ..
. l
2634 of 2009. F
From the Judgment & Order dated 10.1.2006 of the High
Court of Judicature at Madras in Second Appeal No. 321 of
1995.
V. Mohanan for the Appellant. G
V. Prabh~kar, Ramjee Prasad and Revathy Raghavan for
r the Respond~nts.
The Judgment of the Court was delivered by
DR. ARIJ~AT, J. 1. Leave granted. H
522 SUPREME COURT REPORTS [2009] 6 S.C.R.
A 2. Challenge in this appeal is to the judgment of a learned
Single Judge of the Madras High Court allowing the second
appeal filed by the respondents under Section 100 of the Code
of Civil Procedure, 1908 (in short 'CPC').
3. Though many points have been urged in support of the
8
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 100 CPC. Learned counsel for the respondent
. '
submitted that though the High Court's judgment does not show
C that any substantial question of law was framed yet learned
Single Judge has allowed the appeal after analyzing the factual
position in the background of settled principles in law.
4. Section 100 of CPC deals with "Second Appeal". The
o provision reads as follows: j
"Section 100-Second Appeal: (1) Save as otherwiA
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
E 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 passed ex parte.
F
(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
G
question of law is involved in any case, it st:iall formulate
that question.
(5) The appeal shall be heard on the question so
formulated and the respondent shall, a ihearing of the
H appeal, be allowed to argue that the cas es not involve
V.RAMASWAMY v. RAMACHANDRAN & ANR. 523
[DR. ARIJIT PASAYAT, J.]
'!>
such question. A
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
B
is satisfied that the case involves such question."
5. 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 secon.d appeal was heard on the
question, if any, so formulated. That being so, the judgment c
cannot be maintained, which is set aside and remitted back to
the High Court for proceeding in the matter in accordance with
law and in terms of observations made herein.
6. In lshwar Dass Jain v. Sohan Lal (2000 (1) SCC 434),
this Court in para 10, has stated thus: D
"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 Court without E
doing so."
7. Yet again in Roop Singh v. Ram Singh (2000 (3) SCC
708), this Court has expressed thatthe 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 G
-l
exercising its jurisdiction under section 100 CP~. 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 H
524 SUPREME COURT REPORTS [2009] 6 S.C.R.
A 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 his possession was
permissive and there was no pleading or proof as to when
it became adverse and hostile. These findings recorded
B 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
permissive possession it is for him to establish by cogent
c 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 permissive possession into adverse
possession (Thakur Kish an Singh v. Arvind Kumar ( 1994
D
(6) SCC 591). Hence the High Court ought not to have
interfered with the findings of fact recorded by both the
courts below."
8. The position has been reiterated in Kanhaiya/a/ and
E Ors. v. Anupkumar and Ors. (2003 (1) SCC 430), Mathaka/a
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 Chellappan Nair & Ors.
(2005(12) SCC 588), Gian Dass v. The Gram Panchayat
F Village Sunner Kalan & Ors. (2006 (6) SCC 271), Shah
Mansukhlal Chhaganial (d) through Lrs. V. Gohil Amarsing
Govindbhai (d) through Lrs. (2006(13) SCALE 99) and Nune
Prasad & Ors. v. Nune Ramarisna [2008(8) SCC 258].
9. The matter is remitted to the high Court to decide after
G formulating substantial question of law, if any.
r
10. The appeal stands disposed of in the above terms.
There will be no order as to costs.
N.J. Appeal disposed of.
H
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