Full Judgment Text
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CASE NO.:
Appeal (civil) 3717 of 2002
PETITIONER:
MUTHU GOUNDER
RESPONDENT:
AMMAYEE AMMAL
DATE OF JUDGMENT: 09/07/2002
BENCH:
SYED SHAH MOHAMMED QUADRI & S.N. VARIAVA
JUDGMENT:
JUDGMENT
2002 Supp(1) SCR 103
The following Order of the Court was delivered : Heard learned counsel for
the parties.
Leave is granted.
This appeal is directed against the judgment and order of the High Court of
Judicature 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
amended provisions of Section 100 C.P.C. inasmuch as no substantial
question of law has been framed which is obligatory thereunder. Section 100
C.P.C. reads as under :
"100. 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."
From a perusal of the above provisions, it is manifest that the 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 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
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heard on that question though the respondent is permitted to argue that no
such question is involved in the case. Nonetheless, the High Court has
power to hear the appeal on any other 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 100 C.P.C. on a number of occasions.
[See : Shankareppa M. Mutanki v. B. M. Mutanki, [2000] 9 SCC 254 and
Birendera Mumar Dubey and Anr. v. Girja Nandan 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 points which arose for his
consideration and accordingly decided the appeal. It follows that
interference by the High Court in Second Appeal without framing substantial
question of law is impermissible and unsustainable.
In this view of the matter, we set aside the judgment and order under
challenge, restore the Second Appeal (No. 1748 of 2000) to the file of the
High Court and remand the case to the High Court for disposal in accordance
with law.
The appeal is accordingly allowed. No costs.