Kirpa Ram (Deceased) Through Legal Representatives & Ors v. Surendra Deo Gaur & Ors.
APPEAL NO. 8971 OF 2010 decided on 16.11.2020
Bench: L. Nageswara Rao, Hemant Gupta, Ajay Rastogi JJ.
Facts: The suit proceedings between the parties herein came up before the Supreme Court by means of the present Civil Appeal.
A suit was filed for permanent injunction which was decreed thereafter, against the injunction order passed by the trial court a First Appeal was preferred in which the judgment and decree of the trial court was affirmed by the First Appellate Court.
Being aggrieved by this a Second Appeal was filed before the High Court wherein, the High Court refused to upset the findings of the Trial Court as well as the First Appellate Court and affirmed both the judgments and dismissed the said Second Appeal.
The appellants raised a preliminary argument before the Supreme Court that the High Court dismissed the Second Appeal without framing the substantial question of law which is mandatory requirement of Section 100 of Civil Proceure Code, 1908 (hereinafter referred to as, “CPC”).
The Supreme Court while deciding the present Civil Appeal held that the High Court did not commit any illegality in not framing any substantial question of law while dismissing the appeal filed by the appellants.
Issues: The main issues that arose before Supreme Court was:-
a) With regard to the aspect that whether it was mandatory requirement under Section 100 CPC to frame substantial questions of law while dismissing the Second Appeal?
The Apex Court in its judgment while taking into account Section 100 (1) of CPC propounded on the requirements of the aforesaid Section and observed that an appeal shall lie to the High Court if it is satisfied that the case involves a substantial question of law and the substantial question of law is required to be precisely stated in the memorandum of appeal. Further, it observed that if the High Court is satisfied that such substantial question of law is involved, then only it is required to formulate that question and the appeal has to be heard on the question so formulated. However, the Court has the power to hear appeal on any other substantial question of law on satisfaction of the conditions laid down in the proviso of Section 100 of CPC.
Therefore, in conclusion the Supreme Court held that if the substantial question of law framed by the appellants is found to be arising in the case, only then in that case the High Court is required to formulate the same for consideration and if no such question arises, then in that case it is not necessary for the High Court to frame any substantial question of law. The formulation of substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law. The High Court is not obliged to frame substantial question of law, in case, it finds no error in the findings recorded by the First Appellate Court.
Section 100 of CPC
Second appeal.—(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.
(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.