HC Cannot Allow Second Appeal Without Formulating Substantial Question Of Law, Reiterates SC [Read Order]

The Supreme Court has reiterated that a High Court cannot allow Second Appeal without having formulated a substantial question of law.

A mere mention about the question having been formulated in the memorandum of appeal is not enough, said the bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna while setting aside a Kerala High Court judgment.

While considering an appeal against the High Court judgment, the bench noted that no substantial question of law was formulated and the appeal was placed for consideration before the Court on the basis of question of law in the memorandum of appeal.

"The Court ought to have formulated substantial question of law and proceeded with the arguments thereafter. A mere mention about the question having been formulated in the memorandum of appeal is not enough. That is not in accord with the settled law. It is possible that more than one question of law had been formulated in the appeal memo, as substantial question of law. The Court ought to advert to the question which it thinks appropriate to examine and then answer the same, as is mandated in terms of the settled legal position."

In this regard, the court referred to its earlier judgment in Bokka Subba Rao Vs. Kukkala Balakrishna (2008) 3 SCC 99. "It is now well settled by catena of decisions of this Court that the High Court in second appeal, before allowing the same, ought to have formulated the substantial questions of law and thereafter, to decide the same on consideration of such substantial questions of law.", it was observed in the said judgment.

Setting aside the High Court order, the bench relegated the parties before the High Court for reconsideration of the Second Appeal on its own merits.

More recently in Sreedevi vs. Sarojam, the Supreme Court had observed that it is obligatory for a High Court to frame substantial question of law in second appeal even if lower courts' findings are perverse per se. That was also a case which arose from a Kerala High Court order.

However, in a judgment delivered last year [Illoth Valappil Ambunhi (D) vs. Kunhambu Karanavan], the Court observed that mere error in framing a question of law would not render a judgment in Second Appeal liable to be set aside, if it is found that a substantial question of law existed and such question has in fact been answered by the High Court.

Case name: KUNJUMUHAMMED VERSUS MARIYUMMA 

Case no.: CIVIL APPEAL NO. 2771 OF 2020 

Coram: Justices AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna 

Appearances: Sr. Adv. V. Giri, along with AOR K. Parameshwar, and Adv M.V. Mukunda for Appellant, . Adv Gaurav Agrawal, along with AOR Mohammed Sadique T.A for respondents

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