ORAL ORDER

1. Heard Sri R.U. Ansari, learned counsel for appellants. None appeared on behalf of respondents.

2. This is a defendants’ second appeal of the year 1978 and pending for last more than 48 years.

3. Present second appeal was admitted vide order dated 07.04.1979 on substantial questions of law as stated in Grounds No. 1 and 6 of memo of appeal, which are reproduced hereinafter:

“i) Because the provisions of Order 41 Rule 31 C.P.C. are mandatory, the Court below has acted illegally and in excess of its jurisdiction in completely violating the provisions of aforesaid Rule, therefore, the judgment and decree passed by the court below is not sustainable in law.

vi) Because the Valuation of the suit for the purpose of the jurisdiction was fixed Rs. 19,500/-, the learned Munsif where the suit was instituted by the plaintiff could entertain the suit upto valuation of Rs. 5000/- only. The suit was instituted by the plaintiffs in a court which had no pecuniary jurisdiction to entertain the suit. The defect of institution could not be cured by transfer of case to the court of S.C.C. under Section 24 C.P.C., the view taken to the contrary by the trial court and the finding recorded on issue no. 5 was wholly illegal, the court below has acted illegally in completely ignoring this aspect of the matter in spite of the fact that the same was pressed before him.”

4. Section 100 CPC provides appeals from appellate decrees and it shall lie only if the High Court is satisfied that the case involves a substantial question of law. Sub-clause 3 of Section 100 CPC further provides that memorandum of appeal shall precisely state substantial question of law involve in appeal, whereas in present case in memorandum of appeal only grounds were mentioned and no substantial question of law was even mentioned therein. Therefore, the way this second appeal was admitted on basis of grounds treating them to be substantial questions of law was not appropriate (See, R. Nagaraj (Dead) Through Lrs. and another vs. Rajmani and others, 2025 INSC 478).

5. Still considering that this second appeal is pending for last more than 48 years, the Court proceed that above grounds are deemed to be substantial questions of law mentioned in memo of appeal but one consideration is still left that, whether said questions are substantial questions of law or not in terms of a judgment passed by Supreme Court in the case of Chandraban (deceased) through Lrs. and others vs. Saraswati and others, 2022 SCC OnLine SC 1273 wherein the law with regard to “what is the substantial question of law” was discussed and relevant part of the judgment is reproduced hereinafter:

“31. To be “substantial”, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first, a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari [Santosh Hazari v.Purushottam Tiwari, (2001) 3 SCC 179] .)

32. The principles relating to Section 100CPC relevant for this case may be summarised thus:

32.1. An inference of f