IMPORTANT POINT
Second appeal – Section 100 of CPC grants power to High Court to consider a regular Second Appeal only on a substantial question of law.

ORDER :

1. Though this special leave petition is listed for admission, with the consent of the learned senior counsel for the petitioner, Sri V. Chitambaresh and learned counsel for the first respondent-caveator (the second respondent being the power of attorney holder of the petitioner herein), it is heard finally.

2. Leave granted.

3. The judgment of the High Court of Karnataka dated 06.01.2023 passed in Regular Second Appeal No. 5085 of 2011 is called into question in this appeal.

4. The main contention raised by learned senior counsel for the appellant, Sri V. Chitambaresh, is that the High Court has lost sight of the fact that it was dealing with a regular second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short “CPC”) and disposed of the second appeal as if it was a regular first appeal. In other words, no substantial questions of law, which ought to have been framed and answered in the regular second appeal, were even raised in the impugned judgment, let alone answered. It was next submitted that the regular second appeal must be considered only on substantial questions of law, but the High Court has considered the said appeal as if it was a first appeal and gone into details of the evidence, etc. In the circumstances, learned senior counsel for the appellant submitted that the impugned judgment may be set aside and the matter may be remanded to the High Court for a fresh adjudication.

5. In this regard, learned senior counsel Sri V. Chitambaresh relied upon judgments of this Court in the case of C.A. Sulaiman vs. State Bank of Travancore, Alwayee, (2006) 6 SCC 392, State Bank of India vs. S.N. Goyal, (2008) 8 SCC 92 and Raghavendra Swamy Mutt vs. Uttaradi Mutt, (2016) 11 SCC 235.

6. Per contra, learned counsel appearing for the respondent supported the judgment and decision arrived at by the High Court on merits and contended that although the High Court raised no substantial question of law, yet, the reasoning and the conclusion of the High Court is justified. That in the facts of this case, there may be no interference with the impugned judgment and decree.

7. We have considered the contentions advanced at the Bar in light of the requirements of Section 100 of the CPC. It is trite that the exclusive jurisdiction of the High Court to deal with a regular second appeal is stipulated in Section 100 of the CPC, which grants power to the High Court to consider a regular Second Appeal only on a substantial question of law. This would clearly indicate that the First Appellate Court is the final court on questions of facts but only if there is any substantial question of law, a second appeal could be considered and raised by the High Court and such substantial questions of law ought to be answered. In fact, it is the practice and a mandatory requirement that at the time of admitting the regular second appeal, substantial questions of law must be framed, on the basis of which the arguments must be advanced and a decision given thereon. It is also permitted that once the arguments have been advanced, the court is at liberty to re-frame or frame fresh substantial questions of law and answer the same on hearing the learned counsel for the respective parties for immediate reference Section 100 of the CPC extracted as under:

“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 sh