MAHAVIR versus LAKHMI AND ANR.

Citation: [2007] 1 S.C.R. 1135 · Decided: 22-01-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

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MAHAVIR 
A 
v. 
LAKHMI AND ANR. 
JANUARY 22, 2007 
[DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] 
B 
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Code of Civil Procedure, 1908-s. JOO-Second appeal-Substantial 
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question of /aw-Formulation-Necessity of-Held: Second appeal has to 
be heard on the substantial question formulated-Jn absence thereof 
appeal shall fail-Appeal-Second appeal. 
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Present appeal was filed questioning the judgment of High <;ourt 
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which allowed the second appeal without formulating a question of law. 
Allowing the appeal, the Court 
HELD: 1. In view of Section 100 CPC, the memorandum of appeal D 
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shall 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) 
E 
of Section 100. (Para 6] (1136-F] 
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2. The impugned judgment passed by the High Court does not show 
that any substantial question oflaw has been formulated or that the second 
appeal was heard on the question, if any, so formulated. That being so, the 
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judgment cannot be maintained. The matter is remitted to the High Court, 
which shall formulate substantial questions of law, if any, and then deal 
with the matter. [Paras 8 & 12] [1137-E 1138-G) 
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., 
G 
[2003] 1 SCC 430 and Ram Sakhi Devi (Smt.) v. Chhatra Devi and Ors., 
[2005] 6 sec 181- relied on. 
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CIVIL APP ELLA TE JUPJSDICTION : Civil Appeal No. 30 l of2007. 
From the Final Judgments/Orders dated 4.8.2004 and 11.10.2004 of the 
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1135 
1136 
SUPREME COURT REPORTS 
[2007] 1 S.C.R. 
A 
High Court of Punjab and Haryana at Chandigarh in R.S.A. No. 1325/1983 
and C.M. No. 9023-C/2004 in R.S.A. No. 1325/1983. 
B 
c 
D 
E 
R. Venkataramani, Sr. Adv., Ashok Panigrahi, Manju Aggarwal and 
Satya Mitra Garg for the Appellant. 
Chaitanya Siddharth, Mrs. P. Purnima, Mukesh K. Sharma and 
Rameshwar Prasad Goyal, Advs. for the Respondents. 
The Judgment of the Court was delivered by 
DR. ARIJIT PASAY AT, J. : 1. Heard learned counsel for the parties. 
2. Leave granted. 
3. These appeals are directed against the judgment passed by learned 
Single Judge of Punjab and Haryana High Court allowing the Second Appeal 
filed by the defendant and rejecting the application for review. 
4. The plaintiff has filed the present appeals against the aforesaid 
orders. 
5. Though several points were urged in support of the appeals, main 
ground was that the Second appeal was allowed without formulating a 
question of law. 
6. In view of Section 100 of the Code of Civil Procedure, 1908 (in short 
the 'Code') the memorandum of appeal shall precisely state substantial 
question or questions of law involved in the appeal as required under sub-
F 
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 100. 
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7. Section 100 of the Code deals with "Second Appeal". The provision 
reads as follows: 
"Section 100- (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 
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MAHAVIR v. LAKHMI [PASAYAT,J.] 
1137 
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Court is satisfied that the case involves a substantial question of A 
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 
B 
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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(5) 
The appeal shall be heard on the question so formulated and 
the respondent shall, at the hearing of the appeal, be allowed to 
argue that the case does not involve such question: 
Provided that nothing in this sub-section shall be deemed to 
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take away or abr

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