Important point
Judgment deciding second appeal by High Court without formulating any substantial question of law could not be sustained.

Order

Arijit Pasayat, J.—Heard learned counsel for the parties.

2. This appeal relates to a judgment delivered by a learned single Judge of the Kerala High Court in Second Appeal No. 174/90-D. It may be noted that by a common judgment dated 09.12.1997 two appeals, both filed by the present respondent No. 1 were disposed of. Second Appeal No. 174/1990 to which the present appeal relates was directed against the judgment and decree in A.S.No. 42 of 1986 of Sub Court, Palakkad. Same was filed against the judgment and decree in O.S.No. 118 of 1970 of the Munsiff’s Court, Palakkad. The other Second Appeal No. 531 of 1990 was preferred against the judgment and decree passed by Sub-Judge, Palakkad in appeal which was filed against the judgment and decree in O.S.No. 126 of 1977 of the Munsiff’s Court, Palakkad. By a common judgment, as noted above, the High Court disposed of both the matters. Learned Single Judge dismissed Second Appeal No. 531 of 1990, but set aside the judgment and decree of the courts below in the other appeal i.e. Second Appeal No. 174 of 1990. Though several points were urged in support of the appeal, we find that the basic issue which requires to be adjudicated is whether the Second Appeal in terms of Section 100 of the Code of Civil Procedure, 1908 (in short ‘the Code’) could have been disposed of without formulating substantial question of law by the High Court. It is, therefore, not necessary to deal with the factual aspects in detail.

3. Mr. P. Krishnamoorthy, learned senior counsel appearing for the appellants 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.

4. Learned counsel for respondent No. 1 submitted that though the High Court has not formulated the questions of law, as required, yet, on analysing the evidence, it concluded that the view expressed by the courts below were not tenable in law.

5. 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 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 or 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 Vs. 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 Vs. 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: