Dharam Singh v. Karnail Singh & Ors.

The Supreme Court, in Dharam Singh v. Karnail Singh & Ors., (Arising out of S.L.P. (C) No.11713 of 2007) decided on October 13, 2008 had to decide whether there was any substantive question of law in the second appeal as per Section 100 of the Code of Civil Procedure, 1908.

Facts:

The Plaintiff filed a suit before the Additional Civil Judge (Senior Division), Kharar for a declaration "to the effect that plaintiff had become owner of the suit property by way of extinguishment of equity of redemption qua the rights of the defendants and further with consequential relief of restraining the defendants from transferring the suit property in favour of any body..."

The Trial Court decided in favour of the Plaintiff. An appeal was filed before the Additional District Judge, which was dismissed. A second appeal was filed before the Punjab and Haryana High Court, which was allowed. Hence the Suit- Plaintiff filed a case before the Supreme Court challenging the judgement of the High Court.

Decision:
The Supreme Court held:

1. 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.

2. 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.

3. 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.

4. The Proviso to 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.

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.

Hence, the Supreme Court remitted the matter to the High Court so far as it related to Second Appeal for disposal. No order as to costs was made.