1. Appeal against High Court order in a second appeal concerning an ex parte decree and subsequent remittance to the trial court. (Para 1 )
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1999 Supreme(SC) 1280
SUPREME COURT OF INDIA
R.P.Sethi : S.P.Kurdukar
Kishan Ghar
Versus
Castrol India Limited
Case No. : of 1999
Date of Decision : 10/29/99
In a second appeal, the High Court must mandatorily formulate a substantial question of law under Section 100(4) of the Civil Procedure Code before considering evidence or deciding the matter.
Headnote:(A) Civil Procedure Code, 1908 - Section 100(4) - Second Appeal - Formulation of substantial question of law - High Court cannot proceed to consider evidence and material on record without first formulating a substantial question of law - Such a course of action is totally unsustainable in view of the mandatory provisions of Section 100. (Para 2)
Facts of the case:
An ex parte decree was passed by the trial court and subsequently confirmed by the lower appellate court. The High Court, in a second appeal, interfered with the judgments and remitted the matter back to the trial court for disposal.
Findings of Court:
The High Court failed to comply with the requirements of Section 100, specifically sub-section (4) of the Civil Procedure Code, by not formulating a substantial question of law before considering the evidence and material on record.
Issues: Whether the High Court's decision to allow a second appeal without formulating a substantial question of law was legally sustainable.
Ratio Decidendi: The formulation of a substantial question of law is a mandatory requirement under Section 100 of the Civil Procedure Code for the disposal of a second appeal; without it, the court cannot proceed to evaluate evidence.
Result: Appeal partly allowed.
Legal Category Hierarchy
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practice and procedure
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civil procedure
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appellate procedure
- second appeal (Para 2)
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appellate procedure
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civil procedure
Table of Contents
2. The High Court erred by considering evidence and material on record without first formulating a substantial question of law as required by Section 100(4) of the Civil Procedure Code. (Para 2 )
3. Compliance with Section 100(4) of the Civil Procedure Code, requiring the formulation of a substantial question of law, is mandatory for the disposal of a second appeal. (Para 2 )
4. High Court judgment set aside and matter remanded for disposal in accordance with the mandatory provisions of Section 100 of the Civil Procedure Code. (Para 2 , 3 )
5. Is the formulation of a substantial question of law mandatory for a High Court when deciding a second appeal?
Yes, under Section 100, specifically sub-section (4) of the Civil Procedure Code, the High Court must formulate a substantial question of law before proceeding to consider the evidence and material on record to allow a second appeal. (Para 2 )
S.P.KURDUKAR, J.
(1) LEAVE granted. Heard learned counsel for the parties. This appeal is at the behest of the plaintiff. On 29-4-1995, an ex parte decree was passed. The said decree came to be confirmed by the lower appellate court. The High Court however interfered with the judgment and decree passed by the courts below and allowed the second appeal filed by the defendant and remitted the matter back to the trial court for disposal in accordance with law.
(2) ON a perusal of the judgment of the High Court, we find that the High Court has not complied with the requirement of Section 100, in particular, sub-section (4) of the Civil Procedure Code. Without formulating a substantial question of law, the High Court has proceeded to consider the evidence and other material on record and accordingly allowed the second appeal. In our opinion, the course adopted by the High Court while allowing the second appeal is totally unsustainable in view of Section 100 of the Civil Procedure Code. The impugned judgment and order of the High Court is accordingly set aside and the matter is remanded back to the High Court. We hope that the High Court will now follow the mandatory provision contained in Section 100 of the Civil Procedure Code and will formulate substantial question/s of law if it arises in the said second appeal. The High Court will then dispose of the said question/s of law in accordance with law.
(3) THE appeal is partly allowed. In the circumstances, there will be no order as to costs.
