LexKASHMIR SINGH versus HARNAM SINGH & ANR.
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(2008] 3 S.C.R. 763 "'J ,,,, KASHMIR SINGH A II. HARNAM SINGH & ANR. (Civil Appeal No.1036 of 2002) ., MARCH 3,, 2008 B (DR. ARIJIT PASAYAT, P. SATHASIVAM :';.l. AND AFTAB ALAM, JJ.) • Code of Civil Procedure, 1908; s. 100: Second appeal - Requirement of formulating substantial c question of law- Held: In appeal filed uls. 100 CPC, High Court, if satisfied that substantial question of law is involved, should formulate the q(Jestion in terms of sub-section (4) of s.100 - Since right to appeal is a substantive statutory right, it has to · be regulated in accordance with law in force at relevant time - D ~·· ,.'. -t· Conditions me.ntioned therefor must strictly be fulfilled before I second appeal could be maintained - No Court has power to enlarge the grounds - Whether a question of law is a substantial one or not and inyolved in the case or not depends on the facts and circumstances of each case - High Court E empowered to hear the appeal on a substantial question of law even though no question was formulated by it- Jn the instant case, High Court did not formulate question/heard the second ·"'" appeal on the question - Hence, the impugned judgment can not be maintained and set aside - Matter remitted to High F Court. for consideration afresh. ,- Raising of question of law when not amoun(ing to substantial question of Jaw- Held: If it stands already decided by a larger Bench of High Courr!Privy Council/Federal Court/ Supreme Court/when facts required for a point of law have not G been pleaded. , Words and Phrases: 'Substantial question of law' - Meaning of in the context 763 H 764 SUPREME COURT REPORTS [2008] 3 S.C.R. A of s.100 CPC. 'Substantial question of law and substantial question of fact' - Distinction between. The question arose for determination in this appeal B was as to whether the High Court was right in allowing the second appeal filed by respondent No.1 u/s.100 CPC without formulating the substantial question of law. Partly allowing the appeal, the Court c HELD: 1.1 A perusal of the impugned judgment passed by the High 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 0 maintained. (Para - 4) [770-C] 1.2 In view of s. 100 of the Civil Procedure Code the memorandum of appeal shall precisely state substantial question or questions of law involved in the appeal as required under sub-section (3) of s. 100 of the Code. Where E the High Court is satisfied that in any case any substantial question of law is involved it shall formulate that question under sub-section (4) and the second appeal has to be heard on the question so formulated as stated in sub- section (5) of Section 100. (Para - 2) [769-C, D] F 1.3 After the amendment made in s.100 CPC, a second appeal can be filed only if a substantial question of law is involved in the case. However, the respondent at the time of hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of G law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated H \ . ., KASHMIR SINGH v. HARNAM SINGH & ANR. 765 ,. 1 at the time of admission either by mistake or by A )I inadvertence. (Para - 8) [771-F, G; 772-A] /shwar Dass Jain vs. Sohan Lal (2000)1 SCC 434; Roop Singh vs. Ram Singh (2000) 3 SCC 708 and Kanahaiyala/ and Ors. vs. Anupkumar and Ors. JT (2002) 10 SC 98 - B referred to. ~~ 1.4 It has to be kept in mind that the right of appeal is • neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant c time. (Para - 9) [772-C, D] 1.5 'The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely D " • -r equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a sub
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