SASIKUMAR AND ORS. versus KUNNATH CHELLAPPAN NAIR AND ORS.

Citation: [2005] SUPP. 4 S.C.R. 363 · Decided: 19-10-2005 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off
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Judgment (excerpt)

SASIKUMAR AND ORS. 
A 
v. 
KUNNATH CHELLAPPAN NAIR AND ORS. 
OCTOBER 19, 2005 
[ARIJIT PASAYAT AND C.K. THAKKER, JJ.] 
B 
Code of Civil Procedure, I 908: 
ss.100(3) and (4)-Second appeal-Substantial question of law-Not C 
stated in second appeal-High Court hearing and deciding the appeal without 
formulating any substantial question of law-Held, judgment of High Court 
cannot be sustained-Matter remitted to High Court. 
Jshwar Dass Jain v. Sohan Lal, [2000] 1 SCC 434; Roop Singh v. Ram 
Singh, [2000] 3 SCC 708; Kanhaiya/al v. Anupkumar, [2003] 1 SCC 430 and D 
Chadat Singh v. Bahadur Ram and Ors., [2004] 6 SCC 359, relied on. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 976 of 1998. 
From the Judgment and Order dated 9.12.97 of the Kerala High Court 
in S.A. No. 174 of 1990. 
E 
P. Krishnamoorthy, A.K. Jha and Ms. V. Mohana for the Appellants. 
Vishnu B. Saharya for M/s. Saharya & Co. for the Respondents. 
·The Judgment of the Court was delivered by 
ARIJIT PASAYA T, J. Heard learned counsel for the parties. 
This appeal relates to a judgment delivered by a learned single Judge 
of the Kerala High Court in Second Appeal No. 174/90-D. It may be noted 
F 
that by a common judgment dated 09.12.1997 two appeals, both filed by the G 
present respondent No. 1 were disposed of. Second Appeal No. 174/1990 to 
which the present appeal relates was directed against the judgment and decree 
in A.S. No. 42 of 1986 of Sub Court, Palakkad. Same was filed against the 
judgment and decree in O.S. No. 118of1970 of the Munsiff's Court, Palakkad. 
The other Second Appeal No. 531 of 1990 was preferred against the judgment 
3~ 
H 
364 
SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R. 
A and decree passed by Sub-Judge, Palakkad in appeal which was filed against 
the judgment and decree in O.S. No. 126 of 1977 of the Munsiff's Court, 
Palakkad. By a common judgment, as noted above, the High Court disposed 
of both the matters. Learned Single Judge dismissed Second Appeal No. 531 
of 1990, but set aside the judgment and decree of the courts below in the 
B other appeal i.e. Second Appeal No. 174 of 1990. Though several points 
were urged in support of the appeal, we find that the basic issue which 
requires to be adjudicated is whether the Second Appeal in terms of Section 
I 00 of the Code of Civil Procedure, 1908 (in short 'the Code') could have 
been disposed of without formulating substantial question of law by the High 
Court. It is, therefore, not necessary to deal with the factual aspects in detail. 
c 
Mr. P. Krishnamoorthy, learned senior counsel appearing for the 
appellants submitted that the High Court was not justifies in disposing of the 
Second Appeal without formulating the substantial question or questions of 
law, as mandated by Section 100 of the Code. 
D 
Learned counsel for respondent No. I submitted that though the High 
Court has not formulated the questions of law, as required, yet, on analyzing 
the evidence, it concluded that the view expressed by the courts below were 
not tenable in law. 
E 
Section 100 of the Code deals with "second appeal". The provision 
reads as follows: 
"I 00(1) 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 
F 
subordinate to the High Court, if the High Court is satisfied that the 
case involves a substantial question of law. 
G 
(2) An appeal may lie under this section from an appellate decree 
passed ex-parte. 
(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 and the 
H 
respondent shall, at the hearing of the appeal, be allowed to argue 
SASIKUMAR v. KUNNATH CHELLAPPAN NAIR (PASAYA T, J.] 
365 
that the case does not involve such question: 
A 
Provided that nothing in this subsection 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." 
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
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