- Bookmark
- Share
- CaseIQ
B.C Shivashankara v. B.R Nagaraj .
Factual and Procedural Background
The appellant (originally Defendant 1 in the suit) challenged a judgment of the Karnataka High Court that had allowed Respondent 1’s second appeal. The suit initially involved three defendants, but only Defendant 1 pursued the present appeal in the Supreme Court. The principal procedural complaint was that the High Court allowed the second appeal without first framing any substantial question of law, as required by Section 100 of the Code of Civil Procedure, 1908 (CPC).
Legal Issues Presented
- Whether the High Court erred in allowing the second appeal without formulating and addressing a substantial question of law under Section 100 CPC.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal 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 the first appellate court’s decision. | Cited to demonstrate mandatory nature of framing questions of law in second appeals. |
| Roop Singh v. Ram Singh, (2000) 3 SCC 708 | Jurisdiction under Section 100 CPC is confined to substantial questions of law; High Court cannot interfere with pure findings of fact. | Used to reinforce that absence of such formulated questions invalidates High Court interference. |
| Thakur Kishan Singh (Dead) v. Arvind Kumar, (1994) 6 SCC 591 | Principles on permissive possession and adverse possession (quoted within Roop Singh). | Referenced indirectly; supports discussion in Roop Singh but not decisive for present appeal. |
| Kanhaiyalal v. Anupkumar, (2003) 1 SCC 430 | Reiterated limits of High Court’s second-appeal jurisdiction. | Cited as continuing authority on Section 100 compliance. |
| Chadat Singh v. Bahadur Ram, (2004) 6 SCC 359 | Memorandum of appeal must state substantial questions; High Court must formulate them before hearing. | Quoted to show statutory sequence required by Section 100(3)–(5). |
| Joseph Severance v. Benny Mathew, (2005) 7 SCC 667 | Further emphasis on strict adherence to Section 100 CPC. | Cited as corroborative precedent. |
| Sasikumar v. Kunnath Chellappan Nair, (2005) 12 SCC 588 | Same principle of mandatory question formulation. | Referenced to strengthen statutory interpretation. |
| Gian Dass v. Gram Panchayat, (2006) 6 SCC 271 | Continues the line of authority on Section 100 CPC requirements. | Cited for consistency with prior Supreme Court rulings. |
Court's Reasoning and Analysis
The Supreme Court conducted a textual examination of Section 100 CPC, highlighting sub-sections (3) to (5), which collectively mandate:
- The memorandum of appeal must expressly state the substantial question(s) of law.
- The High Court, once satisfied such a question exists, shall formulate it.
- The appeal must then be heard only on the formulated question(s), unless the court records reasons for considering an additional substantial question of law.
On reviewing the High Court’s judgment, the Supreme Court found no indication that any substantial question of law had been identified or formulated. In line with the binding precedents cited, the Court held that omission to frame such questions is a fatal procedural defect. Consequently, the High Court’s judgment could not stand.
Holding and Implications
Holding: The Supreme Court set aside the Karnataka High Court’s judgment and remitted Second Appeal No. 236 of 1991 to the High Court for disposal in accordance with Section 100 CPC. No order as to costs.
Implications: The decision reinforces the mandatory procedural requirement that High Courts must formulate and address substantial questions of law when exercising second-appeal jurisdiction under Section 100 CPC. Failure to do so renders the decision invalid, thereby ensuring stricter compliance in future second appeals but setting no new substantive precedent.
Dr. Arijit Pasayat, J.— Challenge in this appeal is to the judgment of a learned Single Judge of the Karnataka High Court allowing the second appeal filed by Respondent 1. Originally, there were three defendants and the present appeal has been filed only by Defendant 1. The other defendants were impleaded as Respondents 2 and 3 in the present appeal but their names were deleted at the request of the appellant. Though several points were urged in support of the appeal, we think it unnecessary to deal with them in detail considering the primary stand taken that the second appeal was allowed without formulating any substantial question of law as required under Section 100 of the Code of Civil Procedure, 1908 (in short “the Code”).
2. None appeared for the respondent in spite of service of notice.
3. 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.
(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.”
4. 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.
5. In Ishwar Dass Jain v. Sohan Lal (2000) 1 SCC 434 this Court in SCC 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.”
6. 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.”
The position has been reiterated in Kanhaiyalal v. Anupkumar (2003) 1 SCC 430.
7. In Chadat Singh v. Bahadur Ram (2004) 6 SCC 359 it was observed thus:
“6. In view of Section 100 of 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.”
The position was highlighted by this Court in Joseph Severance v. Benny Mathew (2005) 7 SCC 667, Sasikumar v. Kunnath Chellappan Nair (2005) 12 SCC 588 and Gian Dass v. Gram Panchayat (2006) 6 SCC 271.
8. Sub-section (5) of Section 100 is applicable only when any substantial question of law has already been formulated and it 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 can be taken up by the High Court for reasons to be recorded, if it is of the view that the case involves such question.
9. Under the circumstances the impugned judgment is set aside. We remit the matter to the High Court so far as it relates to Second Appeal No. 236 of 1991 for disposal in accordance with law. The appeal is disposed of in the aforesaid terms with no order as to costs.
Alert