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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8909 OF 2015 Arising out of SLP(C) No.1120 of 2015

ASHOK RANGNTH NAGAR                       ….APPELLANT(S)

VERSUS

SHRIKANT GOVINDRAO SANGVIKAR     …..RESPONDENT(S)

WITH  

C.A.No.8910/2015 (Arising out of SLP(C) No.1121/2015) C.A.No.8911/2015 (Arising out of SLP(C) No.1122/2015)

O R D E R

Leave granted.

2. We  have  heard  Mr.  Vatsalya  Vigya,  learned  counsel  

appearing for the appellant and Ms. Chandrakant Giri, learned  

Amicus Curiae for the respondents and perused the common  

impugned judgment dated 13.02.2014 passed by the Bombay  

High Court.

3. The short question that arises for consideration in these  

appeals  is  as  to  whether  the  High  Court  was  justified  in  

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passing  the  impugned  judgment  without  formulating  any  

substantial question of law.

4. The facts of the case in a nutshell are that the plaintiff-

respondents filed a civil suit for perpetual injunction against  

the defendant-appellant seeking a decree restraining him from  

alienating the suit property.

5. After  a  full-fledged  trial,  the  suit  was  dismissed.   As  

against the judgment and decree passed by the trial court, the  

plaintiff  preferred an appeal before the District Judge which  

was  also  dismissed  by  upholding  the  judgment  of  the  trial  

court.  Aggrieved by the same, the plaintiff-respondents filed  

second appeals in the High Court.  The High Court without  

formulating substantial question of law heard the appeals and  

reversed the judgment and decree passed by the trial court as  

also  of  the  appellate  court.   Consequently,  the  suit  was  

decreed.  Hence, these appeals by special leave.

6. Without expressing any opinion on the merits of the case  

prima facie  we  are  of  the  view that  the  matter  need  to  be  

remitted to the High Court to decide the second appeal afresh.  

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The High Court, in fact, failed to notice the mandate of Section  

100 CPC while deciding a second appeal.  Time and again this  

Court has held that unless the High Court is  satisfied that  

there  is  a  substantial  question  of  law,  jurisdiction  under  

Section 100 of the Code cannot be exercised.

7. Although not necessary but to remind ourselves the law  

settled  by  this  Court  we  may  refer  some  of  the  decisions  

hereinafter.

8. In the case of Shiv Cotex vs. Tirgun Auto Plast (P) Ltd.,   

(2011)  9  SCC  678, against  the  concurrent  judgment  and  

decree of the two courts, a Second Appeal was filed before the  

High Court, which has been allowed by the Single Judge and  

the  suit  had  been  remanded  to  the  trial  court  for  fresh  

decision in accordance with law.  While deciding the appeal  

and reversing the judgment and decree of the two courts, the  

High  Court  proceeded  without  formulating  any  substantial  

question of law.  On these facts, this Court observed that

“11. The judgment of the High Court is gravely  flawed and cannot be sustained for more than  one reason.  In the first  place,  the High Court,  

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while  deciding  the  second  appeal,  failed  to  adhere to the necessary requirement of Section  100  CPC  and  interfered  with  the  concurrent  judgment and decree of the courts below without  formulating any substantial question of law. The  formulation of substantial question of law is a  must  before  the  second  appeal  is  heard  and  finally disposed of by the High Court. This Court  has  reiterated  and  restated  the  legal  position  time  out  of  number  that  formulation  of  a  substantial  question  of  law  is  a  condition  precedent for entertaining and deciding a second  appeal.  Recently,  in  Umerkhan v.  Bismillabi  decided by us on 28-7-2011,  it  has been held  that the judgment of the High Court is rendered  patently illegal, if a second appeal is heard and  the  judgment  and  decree  appealed  against  is  reversed  without  formulating  a  substantial  question of law.”

9. In the case of  Umerkhan vs. Bismillabi,  (2011) 9 SCC  

684, the High Court had allowed the second appeal and set  

aside the judgment and decree of  the First Appellate Court.  

While allowing the appeal and reversing the judgment of the  

Appellate  Court,  no  substantial  question  of  law  was  

formulated.  On these facts, this Court observed as under:

“11. In our view, the very jurisdiction of the High  Court in hearing a second appeal is founded on  the formulation of a substantial question of law.  The  judgment  of  the  High  Court  is  rendered  patently illegal, if a second appeal is heard and  judgment  and  decree  appealed  against  is  

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reversed  without  formulating  a  substantial  question  of  law.  The  second  appellate  jurisdiction of the High Court under Section 100  is  not  akin to  the  appellate  jurisdiction  under  Section 96 of the Code; it is restricted to such  substantial  question  or  questions  of  law  that  may  arise  from  the  judgment  and  decree  appealed against. As a matter of law, a second  appeal is entertainable by the High Court only  upon its satisfaction that a substantial question  of  law  is  involved  in  the  matter  and  its  formulation  thereof.  Section  100  of  the  Code  provides that the second appeal shall be heard  on the  question so  formulated.  It  is,  however,  open to the High Court  to reframe substantial  question of law or frame substantial question of  law afresh or hold that no substantial question  of  law  is  involved  at  the  time  of  hearing  the  second appeal but reversal of the judgment and  decree passed in appeal by a court subordinate  to it in exercise of jurisdiction under Section 100  of the Code is impermissible without formulating  substantial  question of  law and a  decision  on  such question.

12. This  Court  has  been  bringing  to  the  notice  of  the  High  Courts  the  constraints  of  Section 100 of the Code and the mandate of the  law  contained  in  Section  101  that  no  second  appeal shall lie except on the ground mentioned  in  Section  100,  yet  it  appears  that  the  fundamental  legal  position  concerning  jurisdiction of the High Court in second appeal  is ignored and overlooked time and again. The  present  appeal  is  unfortunately  one  of  such  matters where the High Court interfered with the  judgment and decree of the first appellate court  in total disregard of the above legal position.”

10. In the case of  Rameshwar Dayal Mangala v. Harish  

Chand, (2009) 4 SCC 800, a suit for mandatory injunction was  

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filed and the same was decreed by the trial court.  Challenging  

the judgment and decree of the trial  court, first appeal was  

preferred,  which  was  eventually  allowed.   Questioning  the  

judgment and decree passed by the First Appellate Court, a  

second appeal was filed and the same was allowed by the High  

Court and the judgment and decree passed by the Appellate  

Court  was  reversed  without  formulating  any  substantial  

question of law.  On these facts, this Court held that the High  

Court, exercising jurisdiction under Section 100 of the Code of  

Civil Procedure, cannot interfere with or reverse the judgment  

without formulating any substantial question of law.

11. Also  in  the  case  of  B.C.  Shivashankara  vs.  B.R.  

Nagaraj,  (2007)  15  SCC  387,  learned  Single  Judge  of  the  

Karnataka High Court allowed second appeal and set aside the  

judgment  and  decree  without  first  formulating  substantial  

question of law.  This Court, therefore, after referring earlier  

decisions of  this Court,  held that  the judgment of  the High  

Court cannot be sustained in law and the matter was remitted  

to the High Court for its disposal in accordance with law.

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12. In  the  case  of  Patrick  JJ.  Saldanha vs.  Antony M.  

Saldanha,  (2007) 11 SCC 148, the High Court allowed the  

second appeal and set aside the judgment and decree passed  

by the courts below.  While allowing the appeal and reversing  

the judgment, no substantial question of law was framed by  

the  High  Court.   In  that  context,  this  Court  reiterated  as  

under:

“3. 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-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.”

13. In the case of Mahavir vs. Lakhmi, (2007) 9 SCC 208, it  

was reiterated by this Court that while reversing the judgment  

and decree in second appeal by the High Court, Section 100,  

CPC mandates to formulate substantial question of law before  

allowing the second appeal and reversing the judgment and  

decree of the lower court.

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14. In the case of Hardeep Kaur vs. Malkiat Kaur, (2012) 4  

SCC 344, the second appeal was allowed by the High Court  

and the judgment and decree passed by the appellate Court  

was set aside.  The short question considered by this Court  

was  whether  a  second  appeal  lies  only  on  a  substantial  

question  of  law  and  is  it  essential  for  the  High  Court  to  

formulate a substantial question of law before interfering with  

the judgment and decree of the lower appellate court.  This  

Court, after considering almost all the earlier judgments, held  

as under:

“18. The law consistently  stated by this Court  that formulation of substantial question of law is  a sine qua non for exercise of jurisdiction under  Section  100  CPC admits  of  no  ambiguity  and  permits no departure. In the present case,  the  High Court has allowed the second appeal and  set  aside the judgment and decree  of  the first  appellate  court  without  formulating  any  substantial  question  of  law,  which  is  impermissible and that renders the judgment of  the High Court unsustainable.

15. In Shah Mansukhlal Chhaganial vs. Gohil Amarsing  

Govindbhai,  (2006)  13  SCC  113,  and  Boodireddy  

Chandraiah  vs.   Arigela Laxmi, (2007) 8 SCC 155,  this  

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Court reiterated the same view that the second appeal cannot  

be  allowed  by  the  High  Court  without  formulating  any  

substantial question of law.

16. In  the  case  of  Joseph  Severance  v.  Benny  Mathew,  

(2005) 7 SCC 667, this Court again took the view that the High  

Court would not be competent to reverse the finding recorded  

by  the  trial  court  or  the  first  appellate  court  without  

formulating substantial question of law.

17. In State of Kerala vs. Puthenkavu N.S.S. Karayogam,  

(2001)  10  SCC 191,  a  second  appeal  was  filed  against  the  

concurrent finding recorded by both the trial  court and the  

first  appellate  court.   However,  the  High  Court,  exercising  

jurisdiction  under  Section  100,  CPC  interfered  with  the  

concurrent finding of facts and allowed the appeal.  This Court  

set  aside  the  order  holding  that  the  judgment  of  the  High  

Court  cannot  be  sustained  inasmuch  as  it  reverses  the  

judgment  without  formulating  substantial  question  of  law.  

The Court observed, thus:  

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“5. Both  sides  have  advanced  several  contentions in the appeal petition as also in the  counter-affidavit  filed.  We  refrain  from  expressing any opinion on the merits of the case  as  we propose  to  remit  the  second appeal  for  disposal afresh. We have noted that the learned  Single Judge has not formulated any question of  law, much less any substantial question of law,  which alone would have clothed the High Court  with jurisdiction under Section 100 CPC to deal  with  a  second  appeal.  This  Court  has  stated  time and again  that  unless  the  High Court  is  satisfied that there is a substantial question of  law,  jurisdiction  for  second  appeal  cannot  be  exercised.  It  is  unnecessary  to  cite  the  authorities on that aspect as it has now become  well-nigh  settled.  Both  sides  agreed  that  no  substantial question of law has been formulated  by the learned Single Judge. If so, the learned  Single Judge ought to have proceeded further.”

18. In  the  case  of  Ellangallur  vs.  Gopalan,  (2000)  2  

SCC 11, this Court, considering a case where the High Court  

in  second  appeal  reversed  the  finding  of  the  first  appellate  

court on the re-appreciation of evidence without formulating  

any  substantial  question  of  law,  held  that  the  judgment  

passed by the High Court cannot be sustained in view of the  

prescribed  procedure  of  Section  100  of  the  Code  of  Civil  

Procedure.  Same view has been reiterated by this Court in the  

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case of H.G. Venkataramanaiah vs. Subba Pujari, (2000) 10  

SCC 412.

19. Similar  view  has  been  reiterated  in  the  case  of  

Ramavilasom Grandhasala vs. N.S.S. Karayogam, (2000) 5  

SCC  64,  wherein  it  was  held  that  the  High  Court  without  

formulating any substantial question of law as required under  

sub-section (4) of Section 100 of the Code cannot allow second  

appeal and set aside the judgment of the lower court.  

20. In the light of the provision contained in Section 100 CPC  

and the ratio decided by this Court, we come to the following  

conclusion:-

(i) On the  day  when the  second  appeal  is  listed for hearing on admission if the High Court is  satisfied  that  no  substantial  question  of  law  is  involved, it shall dismiss the second appeal without  even formulating the substantial question of law;

(ii) In  cases  where  the  High  Court  after  hearing  the  appellate  is  satisfied  that  the  substantial  question  of  law  is  involved,  it  shall  formulate that question and then the appeal shall  be heard on those substantial question of law, after  giving  notice  and  opportunity  of  hearing  to  the  respondent;

(iii) In no circumstances the High Court can  reverse the judgment of the trial court and the first  

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appellate court without formulating the substantial  question of law and complying with the mandatory  requirements of Section 100 CPC.

21. Admittedly,  the High Court by the impugned judgment  

allowed the appeal and reversed the judgment passed by the  

trial court and the first appellate court.  We have, therefore,  

no option but to set aside the impugned judgment passed by  

the High Court and remit the matter back to the High Court  

to first  formulate  the substantial  question of  law and then  

decide all these appeals in accordance with law.

22. Hence, we allow these appeals and remit these matters  

back to the High Court to first formulate substantial question  

of law and then decide all these appeals in accordance with  

law accordingly.

23. Since the plaintiff-respondents are old persons aged more  

than 75 years and they have been fighting the litigation since  

1992, we request the High Court to give preference of hearing  

to  these  appeals  and  decide  the  same  as  expeditiously  as  

possible preferably within a period of four months from today.

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24. However,  interim  order  passed  by  this  Court  shall  

continue only for a period of four months from today.

25. After hearing the respondents, who appeared in person  

before  this  Court  today and informed about  their  financial  

status, we request the Maharashtra Legal Services Authority  

to provide all legal assistance to them and to meet all legal  

expenses in defending the second appeals in the High Court.

26. In the peculiar facts and circumstances of the case and  

considering the helplessness of the respondents who are old  

aged  persons,  we  direct  the  appellant  to  pay  a  sum  of  

Rs.25,000/- (Rupees Twenty Five thousand only) towards the  

legal expenses incurred by them in pursuing the case in this  

Court.

27. Mr. Vigya, learned counsel for the appellant, very fairly  

submits that the appellant be allowed some time to pay the  

aforesaid amount to the respondents.

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28. As prayed for, two weeks’ time is allowed to the appellant  

to pay the aforesaid amount to the respondents.

29. The Registry is directed to communicate this Order to the  

Bombay High Court forthwith.   

…………………J. (M.Y. EQBAL)

………………….J. (C. NAGAPPAN)

NEW DELHI, OCTOBER 27, 2015

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