High Court Cannot Admit Regular Second Appeal Without Framing Substantial Questions Of Law : Supreme Court

A Division Bench of the Supreme Court, while hearing an appeal, re-iterated the established position of law related to Section 100 of the CPC. The Court observed that the provision clearly indicates that first appellate court is the final court on questions of facts but only if there is any substantial question of law, a second appeal could be considered and raised by the High Court and such substantial question(s) of law ought to be answered. Bench comprised of Justices B.V. Nagarathna and Ujjal Bhuyan.

The present appeal was filed assailing the judgment of the High Court of Karnataka dated 06.01.2023 passed in Regular Second Appeal No.5085 of 2011. The core issue to be adjudicated in this was that whether the impugned judgment is contrary to the law laid down under Section 100 CPC. As per the said provision, regular second appeal shall lie to the High Court it is satisfied that the case involves a substantial question of law.

Senior Advocate Sri V. Chitambaresh, appearing for the appellant, argued that no substantial questions of law, which ought to have been framed and answered in the regular second appeal, were even raised in the impugned judgment, let alone answered. Chitambaresh further brought into notice of the Court regular second appeal must be considered only on substantial questions of law, but the High Court has considered the said appeal as if it was a first appeal and gone into details of the evidence, etc. On the other hand, advocate, appearing for the respondent, supported the judgment and decision arrived at by the High Court.

After hearing arguments of both the parties, the Court observed: “It is trite that the exclusive jurisdiction of the High Court to deal with a regular second appeal is stipulated in Section 100 of the CPC, which grants power to the High Court to consider a regular Second Appeal only on a substantial question of law.”

Thereafter, the Court listed catena of judgments on pertaining to the law on the practice to be followed while considering a regular second appeal. This included the landmark judgment in the case of Roop Singh v. Ram Singh, (2000) 3 SCC 708, wherein the Court held:

“It is to be reiterated that 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.”

It further also relied upon a judgment rendered by Justice Nagarathna in Raghavendra Swamy Mutt v. Utaradi Mutt, 2016 SCC OnLine Kar 473, where it was observed:

“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.”

Based on these observations, the Court set aside the impugned judgment of the High Court and remanded matter to the High Court for a fresh consideration after ascertaining whether substantial questions were framed at the time of admitting the matter and if not, to frame the substantial questions of law on hearing the learned counsel for the respective parties and thereafter to dispose of the second appeal in accordance with law.

Case Title: Bhagyashree Anant Gaonkar v. Narendra@ Nagesh Bharma Holkar & Anr., SLP (C) No.12163 of 2023

Citation : 2023 LiveLaw (SC) 688

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