Dharam Singh Vs.
Karnail Singh & Ors.  INSC 1712 (13 October 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2008 (Arising out of
S.L.P. (C) No.11713 of 2007) Dharam Singh ...Appellant Karnail Singh and Ors.
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the Punjab and
Haryana High Court allowing the second appeal filed in terms of Section 100 of
the Code of Civil Procedure, 1908 (in short `the Code'). The second appeal was
filed by the respondents before the High Court questioning correctness of the
judgment and decree dated 25.10.1999 passed by learned Additional District
Judge, Ropar. The learned Additional District Judge had dismissed the appeal
against the judgment and decree dated 25.09.1997 passed by learned Civil Judge
(Senior Division), Kharar, vide which the Suit of the present appellant, who
was the defendant in the Suit was decreed. The Suit was filed for a declaration
to the effect that plaintiff had become owner of the suit property by way of
extinguishment of equity of redemption qua the rights of the defendants and
further with consequential relief of restraining the defendants from
transferring the suit property in favour of any body, as detailed in the head
note of the plaint. The respondents contested the suit and filed written
statements. Four issues were framed and evidence was laid. After considering
the evidence brought on record, learned Additional Civil Judge (Senior
Division), Kharar, vide judgment and decree dated 25.09.1997 decreed the Suit.
Aggrieved by the said judgment and decree, appeal was filed before the First
Appellate Court, which was dismissed by learned Additional District Judge by
judgment and decree dated 25.10.1999.
noted above, the defendants filed the second appeal. By the impugned judgment,
the High Court allowed the appeal and set aside the judgments and decrees of
the courts below and the Suit was dismissed. In support of the appeal, learned
counsel for the appellant submitted that the second appeal was dismissed
without formulating any question of law, which is a mandatory requirement of
Section 100 of the CPC. Several other points on the merits of the case were
response, learned counsel for the respondents submitted that on considering the
memorandum of appeal and the grounds indicated therein, the High Court had
allowed the second appeal and, therefore, there was nothing wrong. It is stated
that after considering the materials on record, the High Court had recorded its
findings that the suit deserves to be dismissed.
is further submitted that though no substantial question of law was formulated
before the Second Appeal was adjudicated, yet that is permissible, because
proviso to sub Section (5) of Section 100 of the Code permits the High Court to
decide a second appeal on a different substantial question of law subject to
recording of reasons.
100 of the Code deals with "second appeal". The provision reads as
"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 3 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 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 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
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."
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.
Ishwar Dass Jain v. Sohan Lal [2000 (1) SCC 434] this Court in para 10 has
"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 doing so."
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:
"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 CPC."
position has been reiterated in Kanhaiyalal v. Anupkumar [2003 (1) SCC 430].
Chadat Singh v. Bahadur Ram and Ors. [2004 (6) SCC 359], it was observed thus:
"6. In view of
Section 100 of the Code the memorandum of appeal shall precisely state
substantial question or questions 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 100."
position was highlighted by this Court in Joseph Severane and Others v. Benny
Mathew and Others [2005 (7) SCC 667], Sasikumar and Others v. Kunnath
Chellappan Nair and Others [2005 (12) SCC 588] and in Gian Dass v. Gram
Panchayat, Village Sunnder Kalan and Ors. [2006 (6) SCC 271].
plea about proviso to sub-section (5) of Section 100 instead of supporting the
stand of the respondent rather goes against them. The proviso 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 already formulated and then only another
substantial question of law which was not formulated earlier can be taken up by
the High Court for reasons to be recorded, if it is of the view that the case
involves such question.
the circumstances, the impugned judgment is set aside, we remit the matter to
the High Court so far as it relates to Second Appeal No.285 of 2000 for disposal
in accordance with law. The appeal is disposed of on the aforesaid terms with
no order as to costs.
(Dr. ARIJIT PASAYAT)