MUTHU GOUNDER versus AMMAYEE AMMAL

Citation: [2002] SUPP. 1 S.C.R. 103 · Decided: 09-07-2002 · Supreme Court of India · Bench: S.S.M. QUADRI, S.N. VARIAVA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

' 
MUTHU GOUNDER 
A 
v. 
AMMA YEE AMMAL 
JULY 9, 2002 
[SYED SHAH MOHAMMED QUADRI AND S.N. VARIAVA, JJ.] 
B 
Code of Civil Procedure, 1908: 
S.100-Second appeal-Substantial question of law-High Court 
deciding second appeal without framing substantial question of law though it C 
formulated points which arose for its consideration-Held, it is manifest that 
High Court can entertain a second appeal only if it is satisfied that the case 
involves a substantial question of law-An obligation is cast on appellant to 
state precisely the substantial question of law involved in the case in the 
memorandum of second appeal and if the High Court is satisfied that a D 
substantial question of law is involved in the case, it is required to formulate 
that question-Interference by High Court in second appeal without framing 
substantial que.fition of law is impermissible and unsustainahle-Car;e remanded 
to High Court for disposal in accordance with law. 
Shankareppa M. Mutanki v. B.M. Mutanki, (2000( 9 SCC 254 and E 
Birendera Kumar Dubey and Anr. Girja Nandan Dubey and Ors., (2001] 6 
sec 767, relied on. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3717 of 
2002. 
From the Judgment and Order dated 20.8.200 I of the Madras High 
Court in SA. No. 1748 of 2000. 
V. Prabhakar, Rakesh Garg and M.K.D. Namboodiri, for the Appellants. 
S. Aravindh and V. Balachandran, for the Respondent. 
The following Order of the Court was delivered : 
Heard learned counsel for the parties. 
Leave is granted. 
103 
F 
G 
H 
104 
SUPREME COURT REPORTS [2002] SUPP. l S.C.R. 
A 
This appeai is directed against the judgment and order of the High 
Court of Judica,ture at Madras in Second Appeal No. 1748 of 2000 dated 
August 20, 2001. 
· We have been taken through the judgment under challenge. It is evident 
that the learned Judge has disposed of the second appeal unmindful of the 
B amended provisions of Section 100 C.P.C. inasmuch as no substantial questio~ 
of law has been framed which is obligatory thereunder. Section 100 C.P.C. 
reads as under : 
c 
D 
E 
F 
"100. Second Appeal-(!) 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 of 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 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 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 take 
away or abridge the power of the Court to hear, for reasons to be 
recorded, the appeal on any other substantial question of law, not 
formulated by it, if it is satisfied that the case involves such question." 
From a perusal of the above provisions, it is manifest that the High 
G Court can entertain a Second Appeal only if it is satisfied that the case 
involves a substantial question of law. An obligation is cast on the appellant 
to state precisely the substantial question of law involved in the case in the 
memorandum of Second Appeal and if the High Court is satisfied that a 
substantial question of law is involved in the Second Appeal it is required to 
formulate that question. The appeal has to be heard on that question though 
H the respondent is permitted to argue that no such question is involved in the 
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MUTHU GOUNDER v. AMMA YEE AMMAL 
105 
case. Nonetheless, the High Court has power to hear the appeal on any other A 
substantial question of law not formulated by it provided it is satisfied that 
the case involves such other substantial question and in that event it has to 
record reasons. This Court reiterated the requirement of Section I 00 C.P.C. 
on a number of occasions. [See : Shankareppa M. Mutanki v. BM. Mutanki, 
[2000] 9 SCC 254 and Birendera Mumar Dubey and Anr. v. Girja Nandan B 
Dubey and Ors., [2001] 6 SCC 767. 
The learned Judge, in the instant case, failed to frame any substantial 
question of law though he formulated poin
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