IMPORTANT POINT
Second appeal u/s 100 CPC has to be heard on substantial question of law formulated either in memo of appeal u/s 100(3) CPC or formulated by High Court u/s 100(4) CPC.

JUDGMENT

Arijit Pasayat, J.-Leave granted.

2. By the impugned judgment a learned Single Judge of the Andhra Pradesh High Court reversed the Appellate Court s judgment and decree passed by learned IInd Additional District Judge, Nellore. The present respondent was the plaintiff in the original suit which was on the file of Ist Additional District Munsif Court, Nellore. He was the appellant before the High Court. Though the trial Court had decided in favour of the plaintiff (respondent herein), as noted above the first Appellate Court reversed the judgment and decree of the trial Court and the suit filed by the plaintiff was dismissed. The plaintiff filed Second Appeal before the High Court which was disposed of by the impugned judgment. The High Court directed restoration of the judgment and decree of the trial Court and set aside the judment and decree of the first Appellate Court.

3. Though many points were urged in support of the appeal, the pivotal plea was that the High Court could not have interfered with the judgment and decree of the first Appellate Court without framing a substantial question of law as enjoined by Section 100 of the Code of Civil Procedure, 1908 (in short the Code ). The High Court can only exercise its jurisdiction under Section 100 of the Code in Second Appeal on the basis of substantial question of law framed at the time of admitting appeal. A Second Appeal can be heard and decided only on the basis of substantial question of law, if any. The judgment rendered by the High Court in Second appeal without following the aforesaid procedure is not sustainable in law.

4. Learned Counsel for the respondent on the other hand submitted that the question of law is self evident and on a technical plea that a question has not been framed, the well reasoned judgment should not be set aside.

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 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 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."

7. 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.

8. 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