(2008] 3 S.C.R. 763

"'J ,,,,

KASHMIR SINGH A

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 c

question of law- 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 - D

~·· ,.'. -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 a substantial one or not and inyolved in the case or not depends on the facts and circumstances of each case - High Court E empowered to hear the appeal on a substantial question of law even though no question was formulated by it- 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 F 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 of law have not G been pleaded. , Words and Phrases:

'Substantial question of law' - Meaning of in the context 763 H

A of s.100 CPC.

'Substantial question of law and substantial question of fact' - Distinction between.

The question arose for determination in this appeal B 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 c 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

0 maintained. (Para - 4) [770-C]

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 E 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] F 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 G 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 H

\ . .,

,. 1 at the time of admission either by mistake or by A )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 - B 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 c 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 D " • -r equitable grounds. The concurrent findings of facts will 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] E

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 F 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 G mandatory provisions of law applicable or its settled position onthe 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] H

1"' A 2.2 The question of law raised will not be considered < as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of B law have not been pleaded, a litigant should not be allowed

to raise that question as a substantial question of law in second appeal. (Para - 11) [773-E, F, G] _;.• • 2.3 Mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of c the documents cannot be held to be raising a substantial

question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate D court is shown to have exercised its discretion in a judicial

manner, it cannot be termed to be an error either of law or '\ . ,..

of procedure requiring interference in second appeal. (Para 11) [773-G; 774-A]

E Reserve Bank of India vs. Ramkrishna Govind Morey (1976 (1) SCC 803 and Kondiba Dogadu Kadam vs. Savitribai Sopan Gujar and Others (1999) 3 sec 722 - relied on.

2.4 The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in

F the Code. The word substantial, as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic

G merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Article 133(1)(a) of the Constitution. The substantial question of

H law on which a second appeal shall be heard need not

j. il

_)I necessarily be a $Ubstantial question of law of general A importance. (Para 12) [774-8, C, D, E]

Sir Chunilal II. Mehta and Sons Ltd. vs. Century Spg. & Mfg. Co. Ltd. AIR (1962) SC 1314 - followed.

Guran Ditta vs. T Ram Ditta AIR (1928) PC 172 - relied B on.

~~ Rimmalapudi Subba Rao vs. Noony Veeraju AIR (1951) ~

Mad. 969 - approved.

2.5 To be a question of law "involving in the case" c there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable • findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised D --t- ,... -r for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter.

It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall E consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding

Ml"< prolongation in the life of any lis. (Para - 15) [775-E, F, G]

Sir Chunilal II. Mehta and Sons Ltd. vs. Century Spg. & F _.,, Mfg. Co. Ltd. AIR (1962) SC 1314 - followed.

Dy. Commnr Hardoi vs. Rama Krishna Narain AIR

(1953) SC 521 and Santosh Hazari vs. Purushottam Tiwari

(deceased) by Lrs. (2001) 3 SCC 179 - relied on.

3.1 The principles relating to Section 100, relevant G

for the present case, are: (i) when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law and (ii) the High Court should be satisfied that the H

A case involves a substantial question of law, and not a mere question of law. (Para - 16) [776-A, B, C]

3.2 The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions 8 are where (i) the courts below have ignored material

evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly

cast the burden of proof. When this Court refers to C 'decision 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. (Para - 17) [776-F, G; 777-A] D 4.1 In view of the facts and circumstances of the case, the matter is remitted to the High Court for fresh consideration. The Second Appeal can be only maintained after formulating substantial question of law, if any and E not otherwise. (Para - 18) [777 -B]

4.2 It is clarified that no opinion has been expressed in the present case on the question as to whether any substantial question of law is involved or not. (Para -18)

[777-B, C]

F CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1036 of 2002.

From the final Judgment and Order dated 16.01.2001 of the High Court of Punjab and Haryana at Chandigarh in Regular G Second Appeal No. 873 of 1996.

J.S.N. Joshi, A.S. Bhasme and Brijesh Pande for the Appellant.

Raj at Sharma, Siddhartha Singh and A. P. Mohanty for the H Respondents.

j, ~

[DR. ARIJIT PASAYAT, J.]

,• The Judgment of the Court was delivered by A

Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the judgment of a learned Single Judge of the Punjab and Haryana High Court allowing the Second Appeal filed by respondent No.1. The Second Appeal was filed under Section

B 100 -of the Code of Civil Procedure, 1908 (in short the 'Code').

"' • Though many points were urged in support of the appeal it was ,4.

" primarily submitted that no substantial question of law was formulated and Second appeal would not have been allowed without formulating any such question. c

2. In view of Section 100 of the 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 Section 100. Where the High Court is satisfied that in any case any substantial question of law is involved it shall formulate D i" -t 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.

3. Section 100 of the Code deals with "Second Appeal".

The provision reads as follows: E

"Section 100- (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time

4""' being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate F to the High Court, if the High Court is satisfied that the case involves a substantial question of law:

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this Section, the memorandum of G appeal shall precisely state the substantial question of

........ law involved in the appeal . •

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate H

A that question.

If "

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve

B such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court . -4-. to hear, for reasons to be recorded, the appeal on any

other substantial question of law, not formulated by it, if it c is saisfied that the case involves such question."

4. 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

D question, if any, so formulated. That being so, the judgment cannot be maintained .. t . 5. In /shwar Dass Jain v. Sohan Lal (2000 (1) SCC 434) this Court in para 10, has stated thus:

E "10. Now under Section 100, 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."

6. Yet again in Roop Singh v. Ram Singh (2000 (3) SCC ,.

F 708) this Court has expressed that the jurisdiction of a High

Court ls confined to appeals involving substantial question of .... law. Para 7 of the said judgment reads:

"7. It is to be reiterated that under section 100 jurisdiction

G 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. That apart, at the time

H of disposing of the matter the High Court did not even

 KASHMIR SINGH v. HARNAM SINGH & ANR. 771

[DR. ARIJIT PASAYAT, J:]

r notice the question of law formulated by it at the time of A ,

admission of the second appeal as there is no reference of it in the impugned judgment. Further, the fact findings courts after appreciating the evidence held that the defendant entered into the possession of the premises as a batai, that is to say, as a tenant and his possession was B

". .. permissive and there was no pleading or proof as to when

,~ it became adverse and hostile. These findings recorded • by the two courts below were based on proper appreciation of evidence and the material on record and there was no perversity, illegality or irregularity in those c findings. If the defendant got the possession of suit land as a lessee or under a batai agreement then from the permissive possession it is for him to establish by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. D

Mere possession for a long. time does not result in converting permissive possession into adverse possession (Thakur Kishan Singh v. Arvind Kumar (1994

(6) SCC 591). Hence the High .Court ought not to have interfered with the findings of fact recorded by both the E courts below."

7. The position has been reiterated in Kanahaiyafal and Ors. v. Anupkumar and Ors. (JT 2002 (10) SC 98) t}<

8. After the amendment, a second appeal can be filed only F if a substantial question of law is involved in the case. The .. memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law G involved in the case. The appeal is required to be heard on the question so formulated. 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 H

A 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 at the time of admission either by mistake or by inadvertence.

9. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the

\ procedure prescribed under Section 100 of the Code. It has C further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the D 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.

The. conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has E 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 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 F substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC

1314) held that:

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, G be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question'in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty H

~ .

....

. • 1'

[DR. ARIJIT PASAYAT, J.]

.,, or calls for discussion of alternative views. If the question A is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." B

...... ..

10. It is not within the domain of the High Court to investigate -"· ... the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court sho!Jld not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where c it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances • • two inferences of fact are possible, one drawn by the lower D I 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 E 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. f7'.

11. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a F larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. Mere appreciation of facts, G the documentary evidence or the meaning of entries and the

~ contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating H

A it as a substantial question of law. Where the first appellate court lt' •

is shown to have exercised its discretion in a judicial manner, it

cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey (1976 (1) SCC B 803) held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.([See: Kondiba Dogadu Kadam v. Savitribai ~

-.~ Sopan GCJjar and Others (1999(3) SCC 722)].

12. The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradis.tinction with - technical, of no substance or D consequence, or academic merely. However, it is clear that the

legislature has chosen not to qualify the scope of "substantial ' ' .. question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Article 133(1 )(a) of the Constitution. The substantial question of law on E which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T Ram Ditta (AIR 1928 PC 172), the phrase 'substantial question of law' as it was employed in the last clause of the then existing Section 100 (since omitted by the Amendment Act, '"!:" F 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case.

In Sri Chunilal's case (supra), the Constitution Bench expressed agreement with the following view taken by a full Bench of the

G Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (AIR 1951 Mad. 969):

"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some H length and discuss alternative views, then the question

KASHMIR SINGH v. HARNAM SINGH'&ANR. 775

[DR. ARIJIT PASAYAT, J.] • 't ,, would be a substantial question of law. On the other hand A if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial"question of B law." ·"' . • .

• 'r:-

13. This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial as quoted in Sir Chunilal's case (supra). c

14. In Dy. Commnr. Hardoi v. Rama Krishna Narain (AIR 1953 SC 521) also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to a certificate under (the then) Section 100 of the CPC.

~I T

15. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" E there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide ,,.. that question of law for a just and proper decision of the case.

An entirely new point raised for the first time before the High F Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration be1ng the need for striking a judicious G balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in -t the life of any lis. (See :Santosh Hazari v Purushottam Tiwari

(deceased) by Lrs. [(2001) 3 SCC 179].

16. The principles relating to Section 100, relevant for this r: • A ( case, may be summarized thus:-

(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect

B of the terms of a document is a question of law.

Construction of a document involving the application of any principle of law, is also a question of law. "' ' ,., .

Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question c of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material

D bearing on the decision of the case (that is, a question, answer to which affects the rights of parties t- 'r to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding

E precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal F principle. In the second type of cases, the substantial question of law arises not because the law is still .... debatable, but because the decision rendered on a material question, violates the settled position of law.

17. The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where

(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from

H proved facts by applying the law erroneously; or (iii) the courts

• t >

KASHMIR SINGH v. HARNAM SINGH & ANR. 777

[DR. ARIJIT PASAYAT, J.]

have wrongly cast the burden of proof. When we refer to 'decision A 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 B 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, C 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. D