ORDER

Leave granted.

2. We have heard Mr. Vatsalya Vigya, learned counsel appearing for the appellant and Ms. Chandrakant Giri, learned Amicus Curiae for the respondents and perused the common impugned judgment dated 13.02.2014 passed by the Bombay High Court.

3. The short question that arises for consideration in these appeals is as to whether the High Court was justified in passing the impugned judgment without formulating any substantial question of law.

4. The facts of the case in a nutshell are that the plaintiff-respondents filed a civil suit for perpetual injunction against the defendant-appellant seeking a decree restraining him from alienating the suit property.

5. After a full-fledged trial, the suit was dismissed. As against the judgment and decree passed by the trial court, the plaintiff preferred an appeal before the District Judge which was also dismissed by upholding the judgment of the trial court. Aggrieved by the same, the plaintiff-respondents filed second appeals in the High Court. The High Court without formulating substantial question of law heard the appeals and reversed the judgment and decree passed by the trial court as also of the appellate court. Consequently, the suit was decreed. Hence, these appeals by special leave.

6. Without expressing any opinion on the merits of the case prima facie we are of the view that the matter need to be remitted to the High Court to decide the second appeal afresh.

The High Court, in fact, failed to notice the mandate of Section 100 CPC while deciding a second appeal. Time and again this Court has held that unless the High Court is satisfied that there is a substantial question of law, jurisdiction under Section 100 of the Code cannot be exercised.

7. Although not necessary but to remind ourselves the law settled by this Court we may refer some of the decisions hereinafter.

8. In the case of Shiv Cotex vs. Tirgun Auto Plast (P) Ltd., (2011) 9 SCC 678, against the concurrent judgment and decree of the two courts, a Second Appeal was filed before the High Court, which has been allowed by the Single Judge and the suit had been remanded to the trial court for fresh decision in accordance with law. While deciding the appeal and reversing the judgment and decree of the two courts, the High Court proceeded without formulating any substantial question of law. On these facts, this Court observed that

“11. The judgment of the High Court is gravely flawed and cannot be sustained for more than one reason. In the first place, the High Court, while deciding the second appeal, failed to adhere to the necessary requirement of Section 100 CPC and interfered with the concurrent judgment and decree of the courts below without formulating any substantial question of law. The formulation of substantial question of law is a must before the second appeal is heard and finally disposed of by the High Court. This Court has reiterated and restated the legal position time out of number that formulation of a substantial question of law is a condition precedent for entertaining and deciding a second appeal. Recently, in Umerkhan v. Bismillabi decided by us on 28-7-2011, it has been held that the judgment of the High Court is rendered patently illegal, if a second appeal is heard and the judgment and decree appealed against is reversed without formulating a substantial question of law.”

9. In the case of Umerkhan vs. Bismillabi, (2011) 9 SCC 684, the High Court had allowed the second appeal and set aside the judgment and decree of the First Appellate Court.

While allowing the appeal and reversing the judgment of the Appellate Court, no substantial question of law was formulated. On these facts, this Court observed as under:

“11. In our view, the very jurisdiction of the High Court in hearing a second appeal is founded on the formulation of a substantial question of law. The judgment of the High Court is rendered patently illegal, if a second appeal is heard and judgment and decree appealed against