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Patrick Jj. Saldanha v. Antony M. Saldanha .
Factual and Procedural Background
The appellant challenged an order of a learned Single Judge of the Karnataka High Court that had allowed the respondent’s second appeal (RSA No. 930 of 1991). The Supreme Court’s opinion focuses on the procedural validity of that High Court decision. Specifically, the appellant argued that the High Court reversed the lower appellate decree without first formulating any “substantial question of law,” a mandatory step under Section 100 of the Code of Civil Procedure, 1908 (CPC).
Legal Issues Presented
- Whether a High Court may allow a second appeal under Section 100 CPC without first formulating and deciding a substantial question of law as required by sub-sections (3)–(5) of that provision.
Arguments of the Parties
Appellant's Arguments
- The High Court allowed the second appeal without formulating any substantial question of law, contrary to the express mandate of Section 100 CPC.
- Because the statutory pre-condition was ignored, the impugned judgment is unsustainable in law and must be set aside.
The opinion does not detail the respondent’s arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ishwar Dass Jain v. Sohan Lal (2000) 1 SCC 434 | High Court must formulate a substantial question of law before reversing an appellate judgment under Section 100 CPC. | Quoted to show that failure to formulate such a question renders the High Court’s decision invalid. |
| Roop Singh v. Ram Singh (2000) 3 SCC 708 | Jurisdiction under Section 100 CPC is confined to substantial questions of law; factual findings cannot ordinarily be disturbed. | Relied on to emphasise limits on High Court’s power and the necessity of formal question formulation. |
| Kanhaiyalal v. Anupkumar (2003) 1 SCC 430 | Reiteration of mandatory nature of Section 100 CPC requirements. | Cited as confirmatory authority. |
| Premabai v. Jnaneshwar Ramakrishna Patange (2000) 9 SCC 418 | Same principle as above. | Cited as confirmatory authority. |
| Chadat Singh v. Bahadur Ram (2004) 6 SCC 359 | Same principle as above. | Cited as confirmatory authority. |
| Mathakala Krishnaiah v. V. Rajagopal (2004) 10 SCC 676 | Same principle as above. | Cited as confirmatory authority. |
| Shah Mansukhlal Chhaganial v. Gohil Amarsing Govindbhai (2006) 13 SCC 113 | Recent clarification on Section 100 CPC’s scope and requirements. | Referenced to reinforce the settled position. |
| Ravi Constructions Co. v. Somvanshi Arya Kshatriya Samaj (2006) 10 SCC 669 | Further confirmation of mandatory formulation of substantial questions of law. | Referenced. |
| Jawala Singh v. Jagat Singh (2006) 10 SCC 148 | Same principle. | Referenced. |
| C.A. Sulaiman v. State Bank of Travancore (2006) 6 SCC 392 | Same principle. | Referenced. |
Court's Reasoning and Analysis
The Supreme Court examined the impugned High Court judgment and found no indication that any substantial question of law had been formulated, nor that the appeal was argued on such a question. Section 100 CPC, as amended in 1976, expressly mandates:
- The memorandum of second appeal must “precisely state” the substantial question(s) of law (sub-section (3)).
- Upon being satisfied that such a question exists, the High Court “shall formulate” it (sub-section (4)).
- The appeal “shall be heard” on the question so formulated (sub-section (5)).
By failing to comply with these statutory steps, the High Court exceeded its jurisdiction. The Supreme Court bolstered this conclusion by citing a consistent line of authorities—beginning with Ishwar Dass Jain and continuing through recent cases—that invalidate High Court interventions undertaken without the requisite formulation of a substantial question of law.
Holding and Implications
The impugned judgment of the Karnataka High Court is set aside, and the matter is remitted to the High Court for fresh disposal after formulating the substantial question(s) of law, if any, in accordance with Section 100 CPC.
Implications: The decision directly affects only the parties by vacating the High Court’s earlier order, but it reinforces an already well-settled procedural rule that High Courts must strictly comply with Section 100 CPC. No new substantive precedent is created; the Court reiterates existing jurisprudence.
Dr. Arijit Pasayat, J.— Challenge in this appeal is to the order passed by a learned Single Judge of the Karnataka High Court allowing the second appeal (RSA No. 930 of 1991) filed by the respondent.
2. Though many points are urged, primarily it was submitted that the second appeal was allowed without formulating a substantial question of law.
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.
4. Section 100 of the Code deals with “second appeal”. The provision reads as follows:
“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.”
5. 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 second appeal was heard on the question, if any, so formulated. That being so, the judgment cannot be maintained.
6. In Ishwar Dass Jain v. Sohan Lal (2000) 1 SCC 434 this Court in para 10, has stated thus:
“10. Now under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so.”
7. Yet again in Roop Singh v. Ram Singh (2000) 3 SCC 708 this Court has expressed that the jurisdiction of a High Court is confined to appeals involving substantial question of law. Para 7 of the said judgment reads:
“7. It is to be reiterated that under Section 100 CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 CPC. That apart, at the time of disposing of the matter the High Court did not even notice the question of law formulated by it at the time of admission of the second appeal as there is no reference of it in the impugned judgment. Further, the fact-finding courts after appreciating the evidence held that the defendant entered into the possession of the premises as a batai, that is to say, as a tenant and his possession was permissive and there was no pleading or proof as to when it became adverse and hostile. These findings recorded by the two courts below were based on proper appreciation of evidence and the material on record and there was no perversity, illegality or irregularity in those findings. If the defendant got the possession of suit land as a lessee or under a batai agreement then from the permissive possession it is for him to establish by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession. (Thakur Kishan Singh v. Arvind Kumar (1994) 6 SCC 591) Hence, the High Court ought not to have interfered with the findings of fact recorded by both the courts below.”
8. The position has been reiterated in Kanhaiyalal v. Anupkumar (2003) 1 SCC 430, JT (2002) 10 SC 98, Premabai v. Jnaneshwar Ramakrishna Patange (2000) 9 SCC 418, 2003 AIR SCW 2922, Chadat Singh v. Bahadur Ram (2004) 6 SCC 359, JT (2004) 6 SC 296 and Mathakala Krishnaiah v. V. Rajagopal (2004) 10 SCC 676, JT (2004) 9 SC 205. Recently this Court has clarified the position in Shah Mansukhlal Chhaganial v. Gohil Amarsing Govindbhai (2006) 13 SCC 113, (2006) 13 Scale 99, Ravi Constructions Co. v. Somvanshi Arya Kshatriya Samaj (2006) 10 SCC 669, (2006) 9 Scale 174, Jawala Singh v. Jagat Singh (2006) 10 SCC 148, JT (2006) 8 SC 483 and C.A Sulaiman v. State Bank of Travancore (2006) 6 SCC 392, AIR 2006 SC 2848.
9. In the circumstances, the impugned judgment is set aside. We remit the matter to the High Court for disposal after formulating the substantial question of law, if any, and in accordance with law. The appeal is disposed of in the aforesaid terms with no order as to costs.
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