Important Point
In second appeal High Court has to formulate substantial question of law and hear the appeal on those questions.

Judgment

Dr. Arijit Pasayat, J. —

1.Leave granted.

2.Challenge in this appeal is to the Judgment of a learned Single Judge of the High Court of Andhra Pradesh at Hyderabad allowing the second appeal filed by the respondent under Section 100 of the Code of Civil Procedure, 1908 (in short ‘CPC’).

3.Factual background in a nutshell is as follows :

The appellant-plaintiff filed O.S. No.78 of 1990 before the Sub-Court, Ramachandrapuram, East Godavari District, Andhra Pradesh against the respondent-defendant. The Trial Court by the Judgment and Order dated 27.06.1995 held that the plaintiffs are the owners of the schedule property and they being the owners of the schedule property are entitled to possession. Aggrieved by the Judgment and decree of the Trial court, the respondent-defendant preferred an appeal in the Court of Additional District Judge, Rajahmundry, EastGodavari District. By Judgment and Order dated 14.06.2001, the first appellate court confirmed the Trial Court’s Judgment. The respondent-defendant preferred a second appeal under Section 100 C.P.C. before the High Court of Andhra Pradesh at Hyderabad, being Second Appeal No.512 of 2001. By the impugned Judgment, the learned Single Judge allowed the second appeal and the Judgments and decree passed by the courts below were set aside.

Though many points have been urged in support of the appeal, the primary stand of the learned counsel for the appellants is that the second appeal was allowed without framing any substantial question of law as mandated by Section 100 CPC. Learned counsel for the respondent submitted that though the High Court’s Judgment does not show that any substantial question of law was framed yet learned Single Judge has allowed the appeal after analyzing the factual position in the background of settled principles in law.

4.Section 100 of CPC deals with “Second Appeal”. The provision reads as follows :

“Section 100-Second Appeal : (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.”

5.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, which is set aside and remitted back to the High Court for proceeding in the matter in accordance with law and in terms of observations made herein.

6.In Ishwar Dass Jain v. Sohan Lal,1 (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.”

7.Yet again in Roop Singh v. Ram Singh,2 (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 Judgmen