LexMADAN LAL AND ANR versus BAL KRISHAN AND ORS.
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A B MADAN LAL AND ANR .. v. BAL KRISHAN AND ORS. NOVEMBER 14, 2005 [ARIJIT PASA Y AT AND TARUN CHATTERJEE, 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: It is essential for High Court to formulate a substantial question of law and hear the appeal on the question formulated-In absence, such judgment cannot be maintained-Matter remitted back to High Court for disposal after formulating substantial question of law. In this appeal, the issue involved was as to whether the High Court was D justified in allowing the second appeal without formulating the substantial question of law, as mandated by Section 100 CPC. Disposing of the appeal, the Court HELD: 1.1. In view of Section 100 CPC, 1908, the memorandum of appeal E shall precisely state substantial questions or questions of law involved in the appeal as required under sub-section (3) of Section 100. Where 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 CPC. (737-F, G) F 1.2. In the instant case, a perusal of the impugned judgment passed by 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 and as such the judgment cannot be maintained. The matters are G remitted back to High Court for disposal after formulating the substantial question of law, if any and in accordance with law. (738-E; 739-F) H Jshwar Dass Jain v. Sohan Lal, (2000) l SCC 434; Roop Singh v. Ram Singh, (2000) 3 SCC 708; Kanahaiyalal and Ors. v. Anupkumar and Ors., JT (2002) 10 SC 98; Prembai v. Jhaneshwar Ramakrishna Patange and Ors., 736 '· MADAN LAL v. BAL KRIS HAN [PASA YAT, J.] 737 (2003) AIR SCW 2922; Chadat Singh v. Bahadur Rama and Ors. JT 12004) A 6 SCC 296 and Mathakala Krishnaiah v. V. Rajagopal, JT 12004) 9 SCC 205, relied on. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 918 of2000. From the Judgment and Order dated 2.9.98 of the Himachal Pradesh B High Court at Shimla in R.S.A. No. 273 of 1992. Gopal Balwant Sathe for the Appellants. Ramesh Babu M.R. for the Respondents. c The Judgment of the Court was delivered by ARIJIT PASAYA T, J. Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Himachal Pradesh High Court in a Second Appeal preferred under Section I 00 of the Code of Civil Procedure, 1908 (in short the 'Code). By the impugned judgment the learned Single Judge set D aside the judgments and decrees of the courts below and decreed the suit of the plaintiffs for declaration of title and injunction as prayed for. Though several points were urged in support of the appeal it was basically contended that findings of fact recorded by the two courts were set aside even without formulating question of law muchless a substantial question of law. Learned counsel for the respondents on the other hand submitted that though specifically the questions of law were not formulated, the High Court has rightly taken note of the legal position as applicable to the factual background and has allowed the appeal. E In view of Section I 00 of the Code the memorandum of appeal shall F precisely state substantial question or questions of law involved in the appeal as required under sub-section (3) of Section 100. Where 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 G 100. Section I 00 of the Code deals with "Second Appeal". The provision reads as follows: "Section 100- (I) Save as otherwise expressly provided in the body H 738 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R. A 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. (2) An appeal may lie under this section from an appellate decree B passed ex parte. (3) In an appeal under this Section, the memorandum of appeal sh
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