KASHMIR SINGH v. HARNAM SINGH & ANR

Citation: [2008] 3 S.C.R. 763

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, P. SATHASIVAM, AFTAB ALAM

Case summary

KASHMIR SINGH v. HARNAM SINGH & ANR.pdf

Judgment text

(2008] 3 S. C. R. 763 "'J ,,,, KASHMIR SINGH II. HARNAM SINGH & ANR. (Civil Appeal No. 1036 of 2002) MARCH 3,, 2008 , (DR. ARIJIT PASAYAT, P. SATHASIVAM :';. l. AND AFTAB ALAM, JJ. ) • Code of Civil Procedure, 1908; s. 100: Second appeal - Requirement of formulating substantial question oflaw- Held: In appeal filed uls. 100 CPC, High Court, if satisfied that substantial question of law is involved, should formulate the q(Jestion in terms of sub-section (4) of s. 100 - Since right to appeal is a substantive statutory right, it has to · be regulated in accordance with law in force at relevant time - ~·· ,. '. -t· Conditions me.

ntioned therefor must strictly be fulfilled before I second appeal could be maintained - No Court has power to enlarge the grounds - Whether a question of law is substantial one or not and inyolved in the case or not depends on the facts and circumstances of each case - High Court empowered to hear the appeal on a substantial question of law even though no question was formulated byit- Jn the instant case, High Court did not formulate question/heard the second appeal on the question - Hence, the impugned judgment can ·"'" not be maintained and set aside - Matter remitted to High Court. for consideration afresh. ,- Raising of question of law when not amoun(ing to substantial question of Jaw- Held: If it stands already decided by a larger Bench of High Courr! Privy Council/Federal Court/ Supreme Court/when facts required for a point oflaw have not been pleaded. , Words and Phrases: 'Substantial question of law' - Meaning of in the context of s. 100 CPC.

'Substantial question of law and substantial question of fact' - Distinction between. The question arose for determination in this appeal was as to whether the High Court was right in allowing the second appeal filed by respondent No. 1 u/s. 100 CPC without formulating the substantial question of law. Partly allowing the appeal, the Court HELD: 1. 1 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. (Para - 4) [770-C] 0 1. 2 In view of s. 100 of the Civil Procedure 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 s. 100 of the Code.

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 subsection (5) of Section 100. (Para - 2) [769-C, D] 1. 3 After the amendment made in s. 100 CPC, a second appeal can be filed only if a substantial question of law is involved in the case. However, the respondent at the time of hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated ,. 1 at the time of admission either by mistake or by )I inadvertence. (Para - 8) [771-F, G; 772-A] /shwar Dass Jain vs. Sohan Lal (2000)1 SCC 434; Roop Singh vs.

Ram Singh (2000) 3 SCC 708 and Kanahaiyala/ and Ors. vs. Anupkumar and Ors. JT (2002) 10 SC 98 referred to. 1. 4 It has to be kept in mind that the right of appeal is ~~ • neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. (Para - 9) [772-C, D] 1. 5 'The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will " • -r not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. (Para - 9) [772-D, E, F] Sir Chunilal V Mehta and Sons Ltd. vs. Century Spg. & Mfg. Co. Ltd, AIR (1962) SC 1314 - followed. 2.

1 In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in ~ second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on- the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. (Para - 10) [773-C, D, E] 1"' ~ 2. 2 The question of law raised will not be considered based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where · the evidence, taken as a whole, is not reasonably capable of supporting the finding. 18.

In view of the aforesaid position, we set aside the impugned judgment of the High Court and remit the matter to it for fresh consideration. The Second Appeal can be only maintained after formulating subst;mtial question of law, if any and not otherwise. We make it clear we have not expressed any opinion on the question as to whether any substantial, question of law is involved or not. 19. The appeal is allowed to the aforesaid extent without: any order as to costs. S. K. S. Appeal partly allowed.