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The Supreme Court has reiterated that Second Appeal under Section 100 of the Code of Civil Procedure should be entertained by the High Court, only if there is a substantial question of law.
A Bench of Justices Abhay Manohar Sapre and S Abdul Nazeer delivered the judgment in an appeal against a judgment of the Bombay High Court.
The Bombay High Court in a second appeal before it had set aside the judgment passed by the District Judge, Ahmednagar and confirmed the judgment passed by the Civil Judge, Junior Division Ahmednagar.
The short question which arose for consideration before the Supreme Court was whether the High court was justified in allowing the appeal.
The Supreme Court referred to Section 100 of the Code of Civil Procedure.
Sub-section (1) of Section 100 says that the second appeal would be entertained by the High Court only if the High Court is “satisfied” that the case involves a “substantial question of law”.
Sub-section (3) makes it obligatory upon the appellant to state in the memo of appeal, the “substantial question of law” involved in the appeal.
Subsection (4) provides that where the High Court is satisfied that any substantial question of law is involved in the case, it shall formulate that question.
In other words, once the High Court is satisfied after hearing the appellant that the appeal involves a substantial question of law, it has to formulate that question and then direct issuance of notice to the respondent. Subsection (5) provides that the appeal shall be heard only on the question formulated by the High Court under sub-section (4).
In other words, the jurisdiction of the High Court to decide the second appeal is confined to the question framed by the High court under sub-section 4, the Supreme Court stated.
The Court ruled that in the instant case, the manner in which the High Court proceeded to decide the second appeal did not appear to be in conformity with the mandatory procedure prescribed under Section 100 of the CPC.
It, therefore, remanded the case back to the High Court.
“In our considered view, the need to remand the case to the High Court has occasioned because the High Court while deciding and eventually allowing the second appeal did not follow the mandatory procedure prescribed under Section 100 of the Code of Civil Procedure, 1908.”
Read the judgment below.