LexSHAH MANSUKHLAL CHHAGANLAL (D) THROUGH LRS. versus GOHIL AMARSING GOVINDBHAI (D) THROUGH LRS.
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SHAH MANSUKHLAL CHHAGANLAL (D) THROUGH LRS. A v. GOHIL AMARSING GOVINDBHAI (D) THROUGH LRS. DECEMBER 5, 2006 [DR. ARIJIT PASAYA T AND S.H. KAPADIA, JJ.] Code of Civil Procedure, 1908-Section JOO-Second appeal- Maintain'!bility of. when substantial question of law not formulated-Held: Not maintainable. Words and Phrases-Expression 'on any other substantial question of law'-Meaning of-In the context of S. I 00(5J of Code of Civil Procedure, 1908. B c The question for consideration in the present appeal is whether High D Court was justified in allowing the second appeal filed in terms of Section 100 of the Code of Civil Procedure, 1908. Disposing of the appeal and remitting the matter to High-Court, the Court HELD: 1. A perusal of the impugned judgment passed by the High E 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. That being so, the judgment cannot be maintained. [137-C-D] Ishwar Dass Jain v. Sohan Lal [2000) 1 SCC 434; Roop Singh v. Ram F Singh, [2000) 3 SCC 708; Kanhaiyalal v. Anupkumar, [2003) l SCC 430; Chadat Singh v. Bahadur Ram and Ors., [2004] 6 SCC 359; Joseph Severane and Ors. v. Benny Mathew and Ors., [2005] 7 SCC 667; Sasikumar and Ors. v. Kunnath Chellappan Nair and Ors., [2005) 12 SCC 588; Jawala Singh (DJ by Lrs. v. Jagat Singh (DJ by Lrs., · JT (2006) 8 SC 483 and C.A. Sulaiman & Ors. v. State Bank of Travancore, Alwayee and Ors., [2006] 6 SCC 392, G relied on. 2. The proviso to Sub-section (5) of Section 100 is applicable only when any substantial question of law has already been formulated and it 135 H 136 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. A empowers the High Court to hear, for reasons to be recorded, the appeal on any other substantial question of law. The expression "on any other substantial question of law" clearly shows that there must be some substantial question of law already formulated and then only another substantial question of law which was not formulated earlier cari be taken up by the High Court for B reasons to be recorded, if it is of the view that the case involves such question. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5614 of2006. From the final Judgment and Order dated 29.8.2002 of the High Court of Gujarat at Ahmedabad in S.A. No. 491 of 1978. C A. Raghunath for the Appellant. Rameshwar Prasad Goyal for the Respondents. The Judgment of the Court was delivered by D Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Gujarat High Court. Second appeal filed by the respondents in terms of Section 100 of the Code of Civil Procedure, 1908 (in short the 'Code') was allowed. Though various questions were raised in support of the E appeal, it was primarily highlighted that the ~econd Appeal was allowed without formulating any substantial.ques~ion of law. F G H There is no appearance on behalf of respondents when the matter is called though learned counsel had entered appearance. Section 100 of the Code deals with "Second Appeal". The provision reads as follows: "100(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 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. - SHAH MANSUKJILAL CHHAGANLAL (0) 111ROUGH LRS. v. GOHIL AMARSING GOVINDBHAI (0) 111ROUGH LRS. If ASAY AT. J. ( 13 7 (3) In an appeal under this section, the memorandum of appeal shall A 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 B 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 c formulated by it, if it is satisfied that the case involves such question." A perusal of the im
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