K.K. KANNAN (D) BY LRS. versus KOOLIVATHUKKAL KARIKKAN MANDI & ORS.

Citation: [2009] 16 S.C.R. 362 · Decided: 10-12-2009 · Supreme Court of India · Bench: P. SATHASIVAM, A.K. GANGULY · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2009] 16 (ADDL.) S.C.R. 362 
A 
K.K. KANNAN (D) BY LRS. 
V. 
~ _. 
KOOLIVATHUKKAL KARIKKAN MANDI & ORS. 
(Civil Appeal No. 612 of 2003) 
B 
DECEMBER 10, 2009 
[P. SATHASIVAM AND ASOK KUMAR GANGULY, JJ.] 
Code of Civil Procedure, 1908: 
s.100 - Second appeal - Formulation of substantial 
A • 
c 
question of law - Concurrent findings of courts below reversed 
by High Court without formulating any substantial question of 
law - HELD: High Court has not fulfilled the mandates as 
provided in s.100 and has not formulated any question after 
D satisfying that a substantial question of law involved in the 
appeal - Mere reference to grounds stated in memorandum 
of second appeal would not satisfy the mandates prescribed 
in s. 100 - In order to fulfil the conditions of s.100, if High Court 
+. 
is satisfied that the substantial question of law is involved, it 
r 
E is to formulate that question and then hear the second appeal 
thereon - In such an event it is also the duty of High Court to 
permit the respondent to argue that the case does not involve 
any such question - In the instant case, such a course has 
not been adopted - Judgment of High Court is set aside and 
F matter remitted to it for disposal afresh expeditiously. 
Kanhaiyalal & Ors. vs. Anupkumar & Ors. 2002 (4) 
Suppl. SCR 366 = 2003 (1) SCC 430; Chadat Singh 
Vs Bahadur Ram & Ors. (2004) 3 Suppl. SCR 298= 2004 
(6) SCC 359; Sasikumar & Ors. Vs. Kunnath Chellappan Nair 
-,_
G & Ors. (2005) 12 SCC 588; Joseph Severance & Ors . . Vs. 
Benny Mathew & Ors. 2005 (3) Suppl. SCR 429 = 2005 
(7) SCC 667; Gian Dass . Vs. The Gram Panchayat Village 
Sunner Kalan & Ors. 2006 (3) Suppl. SCR 781 = 2006 
~ ' 
(6) sec 271, relied on. 
H 
362 
K.K. KANNAN (D) BY LRS. v. KOOLIVATHUKKAL 
363 
KARIKKAN MANDI & ORS. 
Case Law Reference: 
2002 (4) Suppl. SCR 366 relied on para 5 
2004 (3 ) Suppl. SCR 298 relied on para 5 
2005 (3 ) Suppl. SCR 429 relied on para 5 
2006 (3 ) Suppl. SCR 781 relied on para 5 
. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 612 
~ .. of 2003. 
A 
B 
From the Judgment & Order dated 23.11.2000 of the High 
C 
Court of Kerala, Ernakulam in S.A. 834 of 1990. 
WITH 
C.A. No. 613 of 2003. 
- ~ 
K. Rajeev for the Appellants. 
A.S. Nambiar, Sewa Ram, P.K. Manohar for the 
Respondents. 
The following Order of the Court was delivered 
ORDER 
Heard learned counsel for both sides. 
D 
E 
~ 
F 
2. Legal representatives of defendant No.1 and defendant 
No.2 are the appellants before us. Even at the outset, learned 
counsel appearing for the appellants pointed out that the High 
Court while reversing the concurrent decisions of both the 
Courts below, committed an error in not adhereing the 
mandates prescribed in Section 100 of the Code of Civil 
G 
Procedure. Apart from the said contention, he also pointed out 
~ tthat the High Court went wrong in interfering with the factual 
decisions arrived at by both the Courts. 
3. With regard to the first contention in para 3 of the 
H 
364 
SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R. 
A impugned judgment, the High Court has merely referred the 
..... 
grounds A to F raised in the memorandum of second appeal 
as substantial questions of law for consideration. After referring 
the same, the High Court without considering and formulating 
the substantial question of law allowed the second appeal and 
B set aside the conclusion arrived at by the Courts below. 
4. It is useful to refer Section 100 of the Code of Civil 
Procedure which reads as under: 
A 
• 
"100. Second appea/.-(1) Save as otherwise expressly 
c 
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. 
D 
(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 
E 
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. 
F 
(5) The appeal shall be heard on the question so 
formulated and the respondent shall, at the 
(6) hearing of the appeal, be allowed to argue that the case 
does not involve such question: 
G 
provided that nothing in this sub-section shall be deemed 
to tak
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