B.C. SHIVASHANKARA versus B.R. NAGARAJ

Citation: [2007] 3 S.C.R. 389 · Decided: 27-02-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off
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Judgment (excerpt)

B.C. SHIVASHANKARA 
A 
'1 
v. 
> 
B.R. NAGARAJ 
FEBRUARY 27, 2007 
[DR. ARJJIT PASAYA T AND TARUN CHATTERJEE, JJ.] 
B 
Code of Civil Procedure, 1908: 
s. l 00-Second appeal allowed by High Court without formulating any c 
substantial question of /aw-Justification of-Held, not justified. 
s. 100(5)-Applicability of-Held: It is applicable only when any 
substantial question of law has already been formulated and it empowers the 
High Court to hear, for reasons to be recorded, the appeal "on any other 
substantial question of law''. 
D 
Words and Phrases-"On any other substantial question of law"-
Meaning of 
'r 
Challenge in the present appeal is to the judgment of the High Court 
<· 
allowing the Second Appeal filed by Respondent No. 1. It was contended that 
the Second Appeal was allowed without formulating any substantial question E 
of law as required under Section 100, CPC. 
Disposing of the appeal, the Court 
HELD: 1.1. A perusal of the impugned judgment passed by the High F 
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. [Para 4) (391-El 
1.2. Sub-section (5) of Section I 00, CPC is applicable only when any 
substantial question of law has already been formulated and it empowers the G 
High Court to hear, for reasons to be recorded, the appeal on any other 
substantial question of law. The expression "on any other substantial question 
of law" clearly shows that there must be some substantial question of law 
already formulated and then only another substantial question of law which 
389 
H 
390 
SUPREME COURT REPORTS 
[2007] 3 S.C.R. 
A was not formulated earlier can be taken up by the High Court for reasons to 
be recorded, if it is of the view that the case involves such question. (Para 10( 
~ , 
Ishwar Dass Jain v. Sohan Lal, (2000] I SCC 434; Roop Singh v. Ram 
Singh, (2000( 3 SCC 708; Kanhaiyalal v. Anupkumar, (2003( 1 SCC 430; 
Chadat Singh v. Bahadur Ram and Ors., (2004( 6 SCC359; Joseph Severane 
B and Ors. v. Benny Mathew and Ors .. (2005] 7 SCC 667; Sasikumar and Ors. 
v. Kunnath Chellappan Nair and Ors., (2005] 12 SCC 588 and Gian Dass v. 
Gram Panchayat, Village Sunner Kalan and Ors., (2006] 6 SCC 271, relied 
on. 
2. Under the circumstances the impugned judgment is set aside. The 
C matter is remitted to the High Court so far as it relates to the Second Appeal 
for disposal in accordance with law. (Para 11 ( (393-C( 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5452 of2000. 
D 
From the final Judgment and Decree dated 27.5.1998 of the High Court 
of Kamataka at Bangalore in R.S.A. No. 236/1991. 
S.N. Bhat for the Appellant. 
The Judgment of the Court was delivered by 
E 
DR. ARIJIT PASAYA T, J. l. Challenge in this appeal is to the judgment 
of a learned Single Judge of the Kamataka High Court allowing the Second 
Appeal filed by respondent No. I. Originally, there were three defendants and 
the present appeal has been filed only by defendant no. I. The other defendants 
were impleaded as respondents 2 and 3 in the present appeal but their names 
F were deleted at the request of the appellant. Though several points were 
urged in support of the appeal, we think it unnecessary to deal with them in 
detail considering the primary stand taken that the Second Appeal was allowed 
without formulating any substantial question of law as required under Section 
I 00 of the Code of Civil Procedure, 1908 (in short the 'Code'). 
G 
2. None appeared for the respondent in spite of service of notice. 
3. Section I 00 of the Code deals with "second appeal". The provision 
reads as follows: 
"JOO (I) Save as otherwise expressly provided in the body of this 
H 
Code or by any other law for the time being in force, an appeal shall 
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B.C. SHIVASHANKARA v. B.R. NAGARAJ [PASA Y AT,J.] 
391 
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. 
(
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