M/S. WYAWAHARE & SONS AND ORS. versus MADHUKAR RAGHUNATH BHAVE

Citation: [2007] 3 S.C.R. 632 · Decided: 07-03-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off
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Judgment (excerpt)

A 
M/S. WY A WAHARE & SONS AND ORS. 
v. 
-( 
MADHUKARRAGHUNATHBHAVE 
MARCH 7, 2007 
B 
[DR. ARIJIT PASA Y AT AND LOKESHW AR SINGH PANT A, JJ.] 
Code of Civil Procedure, 1908-Section JOO-Second appeal-Disposal 
,/ . 
of by High Court without formulating substantial question of law-Justification 
c of-Held: High Court is to formulate a substantial question of law and hear 
the appeal on the question formulated-Jn absence of the same, judgment 
cannot be maintained. 
The question which arose for consideration in this appeal, was whether 
the High Court was justified in disposing of the second appeal without 
D formulating the substantial question of law, as mandated by Section 100 CPC. 
Disposing of the appeal, the Court 
HELD: A perusal of the impugned judgment passed by High Court does 
y 
not show that any substantial question of law has been formulated or that the 
E second appeal was heard on the question, if any, so formulated and as such 
the judgment cannot be maintained. [Para 6) [634-D-E) 
Jshwar Dass Jain v. Sohan Lal, [2000) 1 SCC 434; Roop Singh v. Ram 
Singh, (2000) 3 SCC 708; Kanahaiyalal and Ors. v. Anupkumar and Ors., JT 
(2002) 10 SC 98; Mathakala Krishnaiah v. V. Rajagopal, [2004) 10 SCC 676; 
F Smt. Ram Sakhi Devi v. Chhatra Devi & Ors., JT (2005) 6 SC 167; Sasikumar 
& Ors. v. Kunnath Chellappan Nair & Ors., [2005) 12 SCC 588; Gian Dass 
~ 
v. The Gram Panchayat Village Sunner Kalan & Ors., [20061 6 SCC 271 and 
Shah Mansukhlal Chhaganial (d) through Lrs. v. Gohil Amarsing Govindbhai 
(d) through Lrs., (2006) 13 SCALE 99, relied on. 
G 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1187 of2007. 
From the Judgment and Order dated 26.8.2004 of the High Court of 
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Judicature at Bombay Nagpur Bench, Nagpur In S.A. No. 43/1991. 
H 
632 
. ; + 
WYAWAHARE&SONSr.MADHUKARRAGHUNATHBHAVE[PASAYAT,J.] 
633 
Aniruddha P. Mayee and Sanjeev Kumar Choudhary for the Appellants. A 
S. V. Deshpande for the Respondent. 
The Judgment of the Court was delivered by 
DR. ARIJIT PASA Y AT, J. I. Leave granted. 
2. Challenge in this appeal is to the order passed by the learned Single 
Judge of the Bombay High Court allowing the second appeal filed by the 
respondent under Section I 00 of the Code of Civil Procedure, 1908 (in short 
'CPC'). 
Factual background in a nutshell is as follows: 
3. The respondent-plaintiff filed a Special civil suit bearing No.2of1986 
B 
c 
in the Court of Civil Judge, Sr. Division, Buldana against the appellants-
defendants. The Trial Court by the judgment and order dated 19 .9 .1987 partially 
decreed the suit. Aggrieved by the judgment and decree of the Trial Court, D 
the appellants-defendants preferred an appeal in the Court of Additional 
District Judge, Buldana. By judgment and order dated 28.9.1990 the first 
appellate court allowed the appeal and set aside the decree passed by the 
Trial Court. The respondent-plaintiff preferred a second appeal before the 
High Court of Bombay, Nagpur Bench. By the impugned judgment the learned E 
Single Judge allowed the second appeal. 
4. Though many points have been urged in support of the appeal, the 
primary stand of the learned counsel for the appellants is that the second 
appeal was allowed without framing any substantial question of law as 
mandated by Section I 00 CPC. Learned counsel for the respondent submitted F 
that though the High Court's judgment does not show that any substantial 
question of law was framed yet the learned Single Judge at the time of 
admission of the second appeal had referred to certain points urged. 
5. Section JOO ofCPC deals with "Second Appeal". The provision reads 
as follows: 
G 
"Section JOO-Second Appeal: (I) Save as otherwise expressly 
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 H 
634 
SUPREME COURT REPORTS 
[2007] 3 S.C.R. 
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oflaw. 
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(2) An appeal may lie under this section from an appellate decree 
passed ex pa rte. 
(3) Jn 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 an
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