IMPORTANT POINT
Second appeal u/s 100 CPC is to be heard on only on substantial questions of law formulated.

JUDGMENT

Arijit Pasayat, J.-Leave granted.

As the only point on which notice was issued related to the desirability of disposing of the Second Appeal in terms of Section 100 of the Code of Civil Procedure, 1908 (in short the Code ) without formulating the substantial question of law by the High Court, it is not necessary to deal with the factual aspects in detail. The second appeal and two miscellaneous petitions were disposed of by a common judgment which form matrix of the present appeals.

2. Respondent-Bahadur Ram filed a suit for specific performance against 9 defendants. The suit was decreed by the trial Court. However, the same was upset by learned Additional District Judge, Kurukshetra. Bahadur Ram filed Second Appeal No. 594/1995 against the judgment of learned Additional District Judge. By the impugned judgment the trial Court s judgment and decree have been restored and that of the first Appellate Court was reversed.

3. Though various points were urged by learned counsel for the appellant it is not necessary to go into those aspects in view of the limited scope of the present appeals in view of the notice issued. There is no appearance on behalf of the respondents.

4. Mr. Mahabir Singh, learned counsel for the appellant submitted that the High Court was not justified in disposing of the Second Appeal without formulating the substantial question or questions of law as mandated by Section 100 of the Code.

5. In view of Section 100 of the Code the memorandum of appeal shall 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 100.

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

"Section 100-(1) Save as otherwise expressly provided in the body of this Court 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 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 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."

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.

7. In Ishwar Dass Jain v. Sohan Lal (2000(1) SCC 434) this Court in para 10, has stated thus :

"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."

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 :

"7. It is to be reiterated that under section 100 CPC jurisdiction of the