Whether high court has jurisdiction to decide appeal on question which is not framed as per S 100(4) of CPC?

Now reverting to the facts of this case, in our
considered opinion, the High Court rightly upheld
all the material findings of the two courts below but
committed one legal error when it placed reliance on
Section 15(2)(a) read with Schedule appended to the
Act for granting relief to the plaintiffs and by
recognizing their right in the suit properties against
the defendant. This finding of the High Court is bad
in law for various reasons mentioned hereinafter.
32) In the first place, such was not the case set up
by the plaintiffs in the Trial Court or the first
appellate Court or even before the High Court.
Second, no substantial question of law was framed
by the High Court on the applicability of Section
15(2) of the Act and third, in the absence of any
pleading, issue and finding recorded by the two
courts below on the applicability of Section15(2) of
the Act, the High Court had no jurisdiction to
examine the case of its own for the first time in

second appeal on such issue.
33) It is a settled principle of law that the High
Court has jurisdiction to hear the second appeal
only on the substantial question of law framed
under Section 100(5) of the
Code of Civil Procedure, 1908 (hereinafter referred
to as “the Code”). Equally well settled principle of
law is that the High Court has no jurisdiction to
decide the appeal on the question which is not
framed as required under Section 100(4) of the
Code.
34) It is clear from the record of the case that the
High Court had framed following three substantial
questions of law, which did not include any
question regarding the applicability of Section 15(2)
of the Act:
“1. Whether the lower appellate Court erred
in law in not drawing adverse inference
against the defendant for non-production of
the original of the Will dated 23.12.1923
executed by Perumal Naidu when the same
was produced by them in the earlier suit?
2. Whether the lower appellate Court erred

in law in receiving in evidence Exs. B3 and
B4 in the absence of any explanation for
non-production of the original Will and
without making grounds for reception of
second evidence?
3. Whether the lower appellate Court erred
in not taking the circumstances prevailing in
1923 at the time of execution of the Will that
female heirs were given only life estates and
hence the female lagatees of Perumal Naidu
as per Will only got life estate and not
absolute interest?”
35) The High Court, in our considered opinion,
was, therefore, not right in suo moto applying the
provisions of Section 15(2)(a) of the Act without even
framing any additional substantial question of law
by taking recourse to Section 100(5) of the Code. If
it was of the view that such issue was involved in
the case then it was mandatory for the High Court
to have first formulated the specific question on the
applicability of Section 15(2)(a) of the Act either at
the time of admission of the appeal or at the time of
final hearing of the appeal by assigning reasons for
framing such question. This was not done. It was,
in our view, a jurisdictional error committed by the

High Court while deciding the second appeal.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4490 OF 2017

Karunanidhi 
V
Seetharama Naidu & Ors.
Dated:March 27, 2017.
Citation: AIR 2017 SC 1632

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What is distinction between grounds for attacking appellate order and substantial question of law?

 Under Section 125 of the Electricity Act, 2003, an
appeal to this Court lies only when there is a substantial
question of law, as required for a second appeal under
Section 100 of Code of Civil Procedure, 1908. Though the
appellant has raised 34 questions, they are actually
grounds for attacking the appellate order. Grounds for
attacking an order are different from substantial question
of law evolved in the appeal. On appreciation of the
correspondence between the parties during the subsistence

of the agreement, both the Commission and the Appellate
Tribunal have held against the appellant.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5919 OF 2013
WARDHA POWER CO. LTD.
V
MAHARASHTRA STATE ELECTRICITY
DISTRIBUTION CO. LTD. AND ANR.

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What are proper test for determining whether a question of law raised in the case is substantial?

The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying 'question of law', means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. scope of 'substantial question of law' by suffixing the words 'of general importance' as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta,MANU/PR/0005/1934, the phrase 'substantial question of law' as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd.MANU/SC/0056/1962 : AIR1962SC1314 , the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju MANU/TN/0318/1951 : AIR1951Mad969 : AIR1951Mad969 :-

"...when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."

and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

13. In Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate Vs. Rama Krishna Narain & Ors. MANU/SC/0112/1953 : AIR1953SC521 : AIR1953SC521 , also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to certificate under (the then) Section 110 of the Code.

14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial', a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.

IN THE SUPREME COURT OF INDIA

C.A. No. 1117 of 2001

Decided On: 08.02.2001

Santosh Hazari vs. Purushottam Tiwai (Dead) by L.Rs.

Coram:

Dr. A.S. Anand, C.J., R.C. Lahoti and Brijesh Kumar, JJ.

Citation:(2001) 3 SCC 179

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Procedure is to be followed by high court while deciding second appeal U/S 100 of CPC

 On perusal of the judgment it clearly shows that the High Court neither set out the case of the parties from their pleadings properly nor mentioned the findings recorded by the Trial Court and nor of the first appellate court. The High Court also did not examine the case in the context of legal provisions governing the issues and nor dealt with any submissions urged by the parties much less to record categorical finding on the questions framed.

17. On the contrary, we notice that the High Court in para 5 formulated another question as the only question arising in the case for decision which was not formulated as substantial question of law along with two questions already framed.

18. In our considered opinion, it was legally obligatory upon the High Court to properly set out the case of the parties, findings recorded by the Trial Court and the first Appellate Court, arguments of the parties on the questions of law framed and then answer the questions framed in the light of law applicable to the controversy involved by giving its reasoning. Order 20 Rule 4(2) and Rule 5 read with Order 41 Rule 31 provides for this requirement.

19. We may also consider apposite to mention that this Court had the occasion to examine the scope of Section 100 of the Code in Santosh Hazaro vs. Purushottam Tiwari (deceased) by LRs., [(2001) 3 SCC 179], wherein Justice R.C. Lahoti (as His Lordship then was and later became CJI) speaking for the three-judge Bench explained the scope and jurisdiction of the High Court while deciding the second appeal under Section 100 of the Code. The High Court, in our opinion, should have kept in consideration the law laid down in this case while deciding the second appeal.

Reportable

Supreme Court of India

Chintaman Namdev Patil (Dead) vs Sukhdev Namdev Patil & Anr on 28 September, 2015

Bench: J. Chelameswar, Abhay Manohar Sapre

Citation:(2016)1 SCC681

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How to ascertain substantial question of law?

It is settled principle of law that second appeal under Section 100 of the Code of

Civil Procedure, 1908, cannot be admitted unless there is substantial question of law

involved in it. As to what is substantial question of law, in Kondiba Dagadu Kadam v. Savitribai Sopan Gujarl, this Court has explained the position

of law as under: (SCC pp. 725-26, para 6)

“6. If the question of law termed as a substantial question stands already decided by

a larger Bench of the High Court concerned or by the Privy Council or by the Federal

Court or by the Supreme Court, its merely wrong application on the facts of the case

would not be termed to be a substantial question of law. Where a point of law has not

been pleaded or is found to be arising between the parties in the absence of any factual

format, a litigant should not be allowed to raise that question as a substantial question

of law in second appeal. The mere appreciation of the facts, the documentary evidence

or the meaning of entries and the contents of the document cannot be held to be

raising a substantial question of law. But where it is found that the first appellate court

has assumed jurisdiction which did not vest in it, the same can be adjudicated in the

second appeal, treating it as a substantial question of law. Where the first appellate

court is shown to have exercised its discretion in a judicial manner, it cannot be termed

to be an error either of law or of procedure requiring interference in second appeal."

12. In view of the above position of law, the question formulated by the High Court in

the present case, as quoted above, cannot be termed to be a question of law, much less a

substantial question of law. The above question formulated is nothing but a question of

fact. Merely for the reason that on appreciation of evidence another view could have been

taken, it cannot be said that the High Court can assume the jurisdiction by terming such a

question as a substantial question of law.
SUPREME COURT OF INDIA
(2015) 11 Supreme Court Cases 782:(2015) 3 SCR 737

(BEFORE DIPAK MISRA AND PRAFULLA C. PANT, JJ.)

LISAMMA ANTONY AND ANOTHER 

Versus

KARTHIYAYANI AND ANOTHER 

Civil Appeals Nos. 3066-67 of 20151, decided on March 20, 2015

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Whether it is necessary to frame substantial question of law if appeal is dismissed at admission stage?

In our opinion, a substantial question of law is not
required to be framed if the High Court decides to dismiss
the second appeal at an admission stage. Only in a case
where the second appeal is admitted or is decided finally
by allowing the same, a substantial question of law is
required to be framed by the High Court.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
 CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.13338 OF 2015
 (Arising out of SLP(C)No.541 of 2015)
 HARI NARAYAN BANSAL 
 VS.
 DADA DEV MANDIR PRABANDHAK SABHA
 (BARAH GAON) PALAM 
Citation: 2016(2) ALLMR 477 SC

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Whether it is necessary to frame substantial question of law while hearing appeal as per S 72(4) of Bombay public trust Act?

So far as provision of Section 72(4) of the Bombay
Public Trusts Act is concerned, there is no such specification that
the appeal from appellate order of the District Court, presented to
the High Court, shall be heard only if it  involves any substantial
question of law.  Neither Section 72(4) makes  reference to Section
100   of   the   Code   of   Civil   Procedure,   nor   specifically   puts   any
restriction   or   limitation   on   the   powers   of   the   High   Court   in
entertaining the appeal.  Since the provision itself does not limit
scope of the appeal nor puts any limitations on the Court dealing
with the appeal, it cannot be construed that appeal to the High
Court,   as   provided   under   Section   72(4)   is   subject   to   any
limitations as prescribed under Section 100 of the Code of Civil
Procedure.
54 In view of the reasons recorded above, our answer to
the questions formulated for consideration, in this Reference, is:
(1) Appeal provided under sub­section

72(4)   of   the   Maharashtra   Public   Trusts   Act,
1950, is not subjected to the restrictions and
limitations   imposed   under   the   provisions   of
Section 100 of the Code of Civil Procedure and
the scope of appeal extends to reconsideration
of decision of the lower forum on questions of
fact and questions of law with a jurisdiction to
reverse,   modify   the   decision   or   remand   the
matter to the lower forum for fresh decision in
terms   of   its   directions.     Appeal   to   the   High
Court under sub­section (4) of Section 72 of the
Act  of   1950  is  an  appeal  against   the   decree
under   sub­section   (2)   of   Section   72   [The
decision   of   Court   under   section   72(2)   is   a
decree for limited purposes of maintaining an
appeal to the High Court.]
(2) Consequently, there is no obligation for
the appellant to state substantial questions of
law involved in the memorandum of appeal and
High   Court   is   also   not   bound   to   formulate
substantial questions of law while admitting the
appeal or before posting the appeal for hearing.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
 SECOND APPEAL NO.700 OF 2008  
Prabhakar Sambhu Chaudhary,

Versus
Laxman Baban Mali,
   
CORAM : R.M.BORDE,
                 SUNIL P. DESHMUKH & 
                RAVINDRA V. GHUGE, JJJ.

Pronounced on  01st  April, 2016.
Citation;2016(3) ALLMR294 FB

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When first appellate court is last court of facts?

 ‘Perversity’ has been the subject matter of umpteen
number of decisions of this Court. It has also been settled by

several decisions of this Court that the first appellate court,
under Section 96 of The Civil Procedure Code, 1908, is the last
court of facts unless the findings are based on evidence or are
perverse.
10. In Krishnan v. Backiam and another 
(2007) 12 SCC 190
, it has been held
at paragraph-11 that:
“11.It may be mentioned that the first appellate
court under Section 96 CPC is the last court of
facts. The High Court in second appeal under
Section 100 CPC cannot interfere with the
findings of fact recorded by the first appellate
court under Section 96 CPC. No doubt the
findings of fact of the first appellate court can be
challenged in second appeal on the ground that
the said findings are based on no evidence or are
perverse, but even in that case a question of law
has to be formulated and framed by the High
Court to that effect. …”
11. In Gurvachan Kaur and others v. Salikram (Dead)
Through Lrs.(2010) 15 SCC 530, at paragraph-10, 
this principle has been
reiterated:
“10.It is settled law that in exercise of power
under Section 100 of the Code of Civil Procedure,
the High Court cannot interfere with the finding of
fact recorded by the first appellate court which is
the final court of fact, unless the same is found to
be perverse. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 231 OF 2015
DAMODAR LAL ... APPELLANT (S)
VERSUS
SOHAN DEVI AND OTHERS ... RESPONDENT (S)
Dated;January 5, 2016
KURIAN, J.:
Citation;(2016) 3 SCC 78

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Whether appeal U/S 100 of cpc can be admitted even though there is no substantial question of law?

Supreme Court observed that appeal under Section 100 Code of Civil Procedure is required to be admitted only on substantial question/questions of law. It cannot be formal admission like an appeal Under Section 96 Code of Civil Procedure. That is the fundamental imperative. It is peremptory in character, and that makes the principle absolutely cardinal.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3190 OF 2016
(Arising out of S.L.P. (Civil) No. 6662 of 2016)
Raghavendra Swamy Mutt …Appellant
Versus
Uttaradi Mutt ...Respondent
Dated;March 30, 2016.
Dipak Misra, J.

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Whether High court can grant exparte interim order without admitting appeal?

 Submission of the learned senior counsel for the
appellant is that Order XLI Rule 5 confers jurisdiction on
the High Court while dealing with an appeal under Section
100 CPC to pass an ex parte order and such an order can
be passed deferring formulation of question of law in grave
situations. Be it stated, for passing an ex parte order the
Court has to keep in mind the postulates provided under
sub-rule (3) of Rule 5 of Order XLI. It has to be made clear
that the Court for the purpose of passing an ex parte order
is obligated to keep in view the language employed under
Section 100 CPC. It is because formulation of substantial
question of law enables the High Court to entertain an
appeal and thereafter proceed to pass an order and at that
juncture, needless to say, the Court has the jurisdiction to
pass an interim order subject to the language employed in
Order XLI Rule 5(3). It is clear as day that the High Court
cannot admit a second appeal without examining whether it
raises any substantial question of law for admission and
thereafter, it is obliged to formulate the substantial question
of law. Solely because the Court has the jurisdiction to
pass an ex parte order, it does not empower it not to
formulate the substantial question of law for the purpose of
admission, defer the date of admission and pass an order of
stay or grant an interim relief. That is not the scheme of
CPC after its amendment in 1976 and that is not the tenor
of precedents of this Court and it has been clearly so stated
in Ram Phal (supra). Therefore, the High Court has
rectified its mistake by vacating the order passed in IA No.
1/2015 and it is the correct approach adopted by the High
Court. Thus, the impugned order is absolutely impregnable.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3190 OF 2016

Raghavendra Swamy Mutt Vs  Uttaradi Mutt 
Dated: March 30, 2016.

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Basic concept of substantial question of law

“23. To be “substantial” a question of law must be
debatable, not previously settled by law of the land
or a binding precedent, and must have a material
bearing on the decision of the case, if answered
either way, insofar as the rights of the parties
before it are concerned. To be a question of law
“involving in the case” there must be first a
foundation for it laid in the pleadings and the
question should emerge from the sustainable
findings of fact arrived at by court of facts and it
must be necessary to decide that question of law
for a just and proper decision of the case. An
entirely new point raised for the first time before
the High Court is not a question involved in the
case unless it goes to the root of the matter. It will,
therefore, depend on the facts and circumstance of
each case whether a question of law is a
substantial one and involved in the case or not, the
paramount overall consideration being the need
for striking a judicious balance between the
indispensable obligation to do justice at all stages
and impelling necessity of avoiding prolongation
in the life of any lis. (See Santosh Hazari v.
Purushottam Tiwari.)
24. The principles relating to Section 100 CPC
relevant for this case may be summarised thus:
(i) …
(ii) The High Court should be satisfied that the
case involves a substantial question of law,
and not a mere question of law. A question
of law having a material bearing on the
decision of the case (that is, a question,
answer to which affects the rights of parties
to the suit) will be a substantial question of
law, if it is not covered by any specific
provisions of law or settled legal principle
emerging from binding precedents, and,
involves a debatable legal issue. A
substantial question of law will also arise in
a contrary situation, where the legal position
is clear, either on account of express
provisions of law or binding precedents, but
the court below has decided the matter,
either ignoring or acting contrary to such
legal principle. In the second type of cases,
the substantial question of law arises not
because the law is still debatable, but
because the decision rendered on a material
question, violates the settled position of
law.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7346 OF 2008
(Arising out of SLP (C) No. 11785 OF 2007)

U.R. Virupakshaiah  V Sarvamma & Anr. 

Citation; (2009)2SCC177, AIR2009SC1481,2009(4)MhLJ337(SC),

S.B. Sinha, J.

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When finding of fact may give rise to a substantial question of law?

It is trite law that a finding of fact may give rise to

a substantial question of law, inter-alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread.

 This Court culled out three principles for determining whether a question of law raised in a case is substantial. One of the principles so summarised, is : The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. 

Supreme Court of India

Chandna Impex P.Ltd. vs Commr.Of Customs on 6 July, 2011

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