Mandatory procedure under section 100 of the 'Code' and relevant provisions of U.P. Zamindari Abolition and Land Reforms Act for entertaining a second appeal based on substantial question of law.

Per Hon'ble Irshad Hussain, J.

By means of this writ petition under Article 2 7 ate Constitution a India the petitioners have taken exception to the judgment and order dated 5-10-2002 passed by Additional Chief Revenue Commissioner, Uttaranchal passed in second appeal no. 11/1989-90 and thus sought quashing of the same.

2. Having gone through the impugned judgment it is obvious that the learned Additional Chief Revenue Commissioner decided the second appeal without resorting to the amended provision of section 100 of the Code of Civil Procedure (in short 'Code') in as much as no substantial question of law was formulated as is obligatory and went on to decide the second appeal by referring to the material considered by the courts below. Sub-section (4) of section 331 of U.P. Zamindari Abolition and Land Reforms Act is the provision under which a second appeal lie on any of the grounds specified in section 100 of the 'Code'. Section 331 of the U.P. Zamindari Abolition and Land Reforms Act reads as under:-

"331 Cognizance of suits, etc. under this Act .

(1) . ………..

(2) . ………..

(3) . ………….

(4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 1908) from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid.

341. Application of certain Acts to the proceeding to this Act.- Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1870 (VII of 1870), the Code of Civil Procedure, 1908 (V of 1908), and the [Limitation Act,1963 (XXXVI of 1963)], [including Section 5 thereof] shall apply to the proceedings under this Act.. "

3. From above it is obvious that by virtue of the above provisions of sub-section (4) of section 331 and section 341 of U.P. Zamindari Abolition and Land Reforms Act, the provisions of the 'Code' as well as that of Indian Court Fees Act, 1870 and the Indian Limitation Act, 1963 including section-5 thereof shall apply to the proceedings under U.P. Zamindari Abolition and Land Reforms Act. As regards second appeal it is obligatory that it shall lie on any of the grounds specified in section 100 of the 'Code' from the final order or decree passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in column 6 of the Schedule given in the end of the Act No.1 of 1951. Section 100 of the 'Code' also need to be reproduced here and it reads as under:-

"100. Second Appeal- (1) Save as otherwise expressly provided in the body of this Code or by any 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."

4. From a perusal of the above provisions it is abundantly clear that a second appeal can only be entertained if the court is satisfied that the case involves a substantial question of law and the court is required to formulate such question and thereafter the appeal had to be heard on that question so