REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.742 OF 2001

Narayanan Rajendran & Another .. Appellant

Versus

Lekshmy Sarojini & Others ..Respondent

JUDGMENT

Dalveer Bhandari, J.

1. This appeal is directed against the judgment dated 23rd

March, 2000 passed by the High Court of Kerala at

Ernakulam in Second Appeal No.518 of 1990

2. The appellant is aggrieved by the order of the High Court

because the High Court in second appeal under section 100 of

Civil Procedure Code, 1908 reversed the concurrent findings

of the trial court and the first appellate court. According to

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the appellant, the second appeal did not involve any question

of law much less any substantial question of law warranting

interference by the High Court under section 100 of the Code

of Civil Procedure.

3. The facts which are necessary to dispose of the appeal

are recapitulated as under:

The appellants were defendants in the suit and the

respondents were the plaintiffs. The plaintiffs filed a suit

contending that the property in question is a subtarwad

property of defendant no.1 and, therefore, the members of the

subtarwad including the plaintiffs and defendants no.1 to 3

are entitled to 1/11 share each for each member of the

subtarwad under the customary law. Defendant nos.1 to 3

and defendant nos.4 and 5 who got assignment of the

property for a valuable consideration from defendant nos.1 to

3 contended that the suit property is the personal property of

defendant no.1 who has exclusive right of title and possession

ever since 1103 M.E. under registered settlement deed

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executed by the grandfather and grandmother of defendant

no.1, therefore, the suit property is not partible.

4. Both the trial court as well as the first appellate court

concurrently found that defendant no.1 has exclusive right

and possession over the suit property and that the plaintiffs

have failed to prove that the suit property is subtarwad

property or that the parties are governed by the customary

marumakkathayam law. The court further held that the

burden is on the plaintiffs to prove the customary law is

applicable which the plaintiffs have failed to prove. On the

other hand, several documents executed in the family of the

parties prove that the parties are governed by makkathayam

law.

5. In the impugned judgment, the High Court on re-

appreciation of the evidence in the case reversed the

concurrent findings of the courts below and held that the suit

property is the subtarwad property and the parties are

governed by ezhava marumakkathayam customary law.

According to the appellants, the findings of the High Court are

wholly unsustainable. The burden of proof of the customary

 4

law is upon the person who alleges it. In the instant case, the

respondents who were the plaintiffs before the trial court have

clearly failed to prove the customary law. On the other hand,

the trial court and the first appellate court on evidence found

that the parties are following makkathayam system and not

marumakkathayam system. Under the marumakkathayam

law, every member is entitled to one share in the property.

The law of succession and inheritance followed by the parties

is makkathayam law.

6. The trial court on the documents and evidence on record

framed the following issues:

i. Whether the suit is maintainable?

ii. Whether the Munsiff’s Court has pecuniary

jurisdiction to try this suit?

iii. Whether the plaintiffs have paid proper court fees?

iv. Whether the plaint schedule property is the

subtarwad property of plaintiffs and defendants 1 to
3?

v. Whether the plaintiffs are entitled to get share in

the plaint schedule property and if so, what is the
share due to the plaintiffs?
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vi. Whether defendants 4 and 5 have done any

improvements in the property and if so what is the
quantum thereof?

vii. Whether the plaintiffs are entitled to get any mesne

profits and if so, what is its extent?

viii. Reliefs and Costs?

Additional

ix. Are plaintiffs and defendants 1 to 3

Marumakkathayee Ezhavas? Are they governed by
Marumakkathayam law?

7. According to the trial court, issues no.(iv), (v) and (ix)

were main issues and they were decided together. The trial

court came to the conclusion that the plaintiffs have not

proved that they are Marumakkathayee ezhavas. The

defendants have succeeded in showing that the parties are

governed by makkathayam law and that the plaint schedule

property is not the subtarwad property as claimed by the

plaintiffs. This necessarily follows that the plaintiffs are not

entitled to claim partition and get any share in the plaint

property. The issues, therefore, were found accordingly

against the plaintiffs and in favour of the defendants holding

that the plaint schedule property is not the subtarwad

property of the plaintiffs and defendant nos.1 to 3 and they

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are not Marumakkathayee ezhavas and hence the plaintiffs

are not entitled to get any share in the said property.

8. The first appellate court also comprehensively re-

evaluated and re-examined the entire evidence on record and

came to the conclusion that the evidence led by the side of the

plaintiffs is not convincing and reliable to uphold the case

advanced by the plaintiffs and on the other hand, the evidence

pointed out by the defendants would lead to the inference that

the parties are makkathayee ezhavas. Therefore, there is no

reason to interfere with the reasoning and findings of the

lower court that the parties are governed by makkathayam

system of inheritance, that there exists no subtarwad property

of plaintiffs and defendant nos.1 to 3 and as such the

plaintiffs are not entitled to get any share in the suit property.

The first appellate court upheld the judgment and decree

passed by the trial court.

9. The appellants aggrieved by the judgment of the trial

court and the first appellate court preferred second appeal

before the High Court.

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10. In the impugned judgment, while setting aside the

concurrent findings of fact, the High Court observed that

“parties to the suit being persons residing in Kollam District

and the property over which they claim right also being

situated in Kollam District, they were following misravazhi

system of inheritance which was essentially the principles of

Marumakkathayam system of inheritance with modifications

recognized by judicial pronouncement”.

11. The entire basis of the aforesaid finding of the High Court

is without any basis and unsustainable in law. It is

astonishing how the person residing in a particular district

would be governed by misravazhi system of inheritance. The

customary laws cannot be applied on the yardstick as adopted

by the High Court.

12. The appellants submitted that it is the settled legal

position that the burden of proof was on the plaintiffs to prove

that they are governed by the customary law of

marumakkathayam law of inheritance which the plaintiffs

have failed to prove.

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13. The appellants are seriously aggrieved by the judgment

of the High Court. According to them, the High Court was in

error in interfering with the findings of the fact of the courts

below, particularly when the second appeal did not involve

any question of law much less than any substantial question

of law.

14. The counsel for the plaintiffs placed reliance on the

judgment of this court in Radha Amma & Another v. C.

Balakrishnan Nair & Others (2006) 8 SCC 546 dealing with

marumakkathayam law. The court observed as under:

“12. So far as the first submission is concerned it is

not disputed before us that the question as to
whether those items, namely, Items 8 to 16
belonged to the puthravakasam thavazhi, never
arose for consideration in the suit or in the appeal.
Defendant 2 never raised such a plea. No such
issue was framed. Neither any evidence was
recorded on this aspect of the matter, nor were the
courts called upon to record a finding on that
question. This position is not disputed by the
counsel appearing for the respondents. If such be
the legal and factual position, we find no
justification for the High Court to interfere in appeal
and modify the decree of the courts below on a
question which did not arise for its consideration….
”

15. Similarly, in the instant case, the High Court set aside

the concurrent findings of fact of the courts below on the

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ground that the parties to the suit being persons residing in

Kollam district and the property over which they claim right

also being situated in Kollam district, they were following

misravazhi system of inheritance which was essentially the

principles of marumakkathayam system of inheritance. This

was not the case of either of the parties. No documents were

filed. No evidence was led. No issues were framed by the trial

court. Therefore, the High Court was clearly in error in setting

aside the concurrent findings of fact on virtually non-existent

material. According to the appellants, the impugned

judgment is liable to be set aside and the findings of the trial

court and as affirmed by the first appellate court are liable to

be restored.

16. In Gurdev Kaur and Others v. Kaki and Others (2007)

1 SCC 546 in which one of us (Bhandari, J.) was party to that

judgment crystallized the entire legal position but

unfortunately even thereafter in the number of cases it has

come to our notice that the law declared by this court is not

followed in a large number of cases by the High Courts. Once

again we are making serious endeavour to recapitulate the

 10

legal position with the fond hope that the High Courts would

keep in mind the legal position before interfering in a case of

concurrent findings of facts arrived at by the trial court and

upheld by the first appellate court.

17. Section 100 of the Code of Civil Procedure, 1908 (for

short, C.P.C.) corresponds to Section 584 of the old Civil

Procedure Code of 1882. The Section 100 (prior to 1976

amendment) reads as under:

“100. Second appeal – (1) “Save where otherwise

provided in the body of this Code or by any other
law for the time being in force, an appeal shall lie to
the High Court from every decree passed in appeal
by any Court subordinate to a High Court on any of
the following grounds, namely :

(a) the decision being contrary to law or to some

usage having the force of law;

(b) the decision having failed to determine some

material issue of law or usage having the force of
law;

(c) a substantial error or defect in the procedure

provided by this Code or by any other law for the
time being in force, which may possibly have
produced error or defect in the decision of the case
upon the merits.

(2) An appeal may lie under this section from

an appellate decree passed ex parte.”
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18. A reference of series of cases decided by the Privy

Council and this court would reveal true import, scope and

ambit of Section 100 C.P.C.

Cases decided prior to 1976 amendment both by the Privy

Council and the Supreme Court dealing with the scope of
Section 100 C.P.C.

19. The Privy Council, in Luchman v. Puna [(1889) 16

Calcutta 753 (P.C.)], observed that a second appeal can lie

only on one or the other grounds specified in the present

section.

20. The Privy Council, in another case Pratap Chunder v.

Mohandranath [(1890) ILR 17 Calcutta 291 (P.C.)], the

limitation as to the power of the court imposed by sections

100 and 101 in a second appeal ought to be attended to, and

an appellant ought not to be allowed to question the finding of

the first appellate court upon a matter of fact.

21. In Durga Chowdharani v. Jawahar Singh (1891) 18

Cal 23 (PC), the Privy Council held that the High Court had no

jurisdiction to entertain a second appeal on the ground of

erroneous finding of fact, however gross or inexcusable the

 12

error may seem to be. The clear declaration of law was made

in the said judgment as early as in 1891. This judgment was

followed in the case of Ramratan Shukul v. Mussumat

Nandu (1892) 19 Cal 249 (252) (PC) and many others. The

court observed:

“It has now been conclusively settled that the

third court...cannot entertain an appeal upon
question as to the soundness of findings of fact by
the second court, if there is evidence to be
considered, the decision of the second court,
however unsatisfactory it might be if examined,
must stand final.”

22. In the case of Ram Gopal v. Shakshaton [(1893) ILR 20

Calcutta 93 (P.C.)], the court emphasized that a court of

second appeal is not competent to entertain questions as to

the soundness of a finding of facts by the courts below.

23. The same principle has been reiterated in Rudr Prasad

v. Baij Nath [(1893) ILR 15 Allahabad 367]. The court

observed that a judge to whom a memorandum of second

appeal is presented for admission is entitled to consider

whether any of the grounds specified in this section exist and

 13

apply to the case, and if they do not, to reject the appeal

summarily.

24. Similarly, before amendment in 1976, this court also had

an occasion to examine the scope of Section 100 C.P.C.. In

Deity Pattabhiramaswamy v. S. Hanymayya and Others

[AIR 1959 SC 57], the High Court of Madras set aside the

findings of the District Judge, Guntur, while deciding the

second appeal. This court observed that notwithstanding the

clear and authoritative pronouncement of the Privy Council on

the limits and the scope of the High Court’s jurisdiction under

section 100, Civil Procedure Code, “some learned Judges of

the High Courts are disposing of Second Appeals as if they

were first appeals. This introduces, apart from the fact that

the High Court assumes and exercises a jurisdiction which it

does not possess, a gambling element in the litigation and

confusion in the mind of the litigant public. This case affords

a typical illustration of such interference by a Judge of the

High Court in excess of his jurisdiction under Section 100,

Civil Procedure Code. We have, therefore, no alternative but

to set aside the judgment of the High Court which had no

 14

jurisdiction to interfere in second appeal with the findings of

fact arrived at by the first appellate court based upon an

appreciation of the relevant evidence.

25. In M. Ramappa v. M. Bojjappa [(1963) SCR 673], the

Andhra Pradesh High Court interfered with the finding

recorded by the Appellate Court which, in turn, had itself

reversed the trial court’s finding on the same question of fact.

While setting aside the decree of the second Appellate Court,

this court observed:

“It may be that in some cases, the High Court

dealing with the second appeal is inclined to take
the view that what it regards to be justice or equity
of the case has not been served by the findings of
fact recorded by courts of fact, but on such
occasions it is necessary to remember that what is
administered in courts is justice according to law
and considerations of fair play and equity however
important they may be, must yield to clear and
express provisions of the law. If in reaching its
decisions in second appeals, the High Court
contravenes the express provisions of section 100, it
would inevitably introduce in such decisions an
element of disconcerting unpredictability which is
usually associated with gambling; and that is a
reproach which judicial process must constantly
and scrupulously endeavour to avoid.”
 15

26. It may be pertinent to mention that as early as in 1890

the Judicial Committee of the Privy Council stated that there

is no jurisdiction to entertain a second appeal on the ground

of an erroneous finding of fact, however, gross or inexcusable

the error may seem to be and they added a note of warning

that no Court in India has power to add, or enlarge, the

grounds specified in Section 100 of the Code of Civil

Procedure.

27. Even before the amendment, interference under Section

100 C.P.C. was limited, which has now been further curtailed,

which we would be dealing in cases decided by this court after

the amendment.

28. We have given reference of a large number of cases

decided by the Privy Council and this court to clearly

understand the ambit and scope of Section 100 before

amendment.

29. The Amendment Act of 1976 has introduced drastic

changes in the scope and ambit of Section 100 C.P.C. A

second appeal under Section 100 C.P.C. is now confined to

 16

cases where a question of law is involved and such question

must be a substantial one. Section 100, as amended, reads

as under:

“100. Second Appeal:

(1) Save as otherwise expressly provided in the

body of this Code or by any other law for the time
being in force, an appeal shall lie to the High Court
from every decree passed in appeal by any Court
subordinate 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 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 that question.

(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 such question:

Provided that nothing in this sub-section shall

be deemed to take away or abridge the power of the
court to hear, for reasons to be recorded, the appeal
on any other substantial question of law, not
formulated by it, if it is satisfied that the case
involves such question.”

Cases decided after 1976 amendment

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30. In Bholaram v. Amirchand (1981) 2 SCC 414 a three-

Judge Bench of this court reiterated the statement of law. The

High Court, however, seems to have justified its interference

in second appeal mainly on the ground that the judgments of

the courts below were perverse and were given in utter

disregard of the important materials on the record particularly

misconstruction of the rent note. Even if we accept the main

reason given by the High Court the utmost that could be said

was that the findings of fact by the courts below were wrong or

grossly inexcusable but that by itself would not entitle the

High Court to interfere in the absence of a clear error of law.

31. In Kshitish Chandra Purkait v. Santosh Kumar

Purkait [(1997) 5 SCC 438], a three judge Bench of this court

held: (a) that the High Court should be satisfied that the case

involved a substantial question of law and not mere question

of law; (b) reasons for permitting the plea to be raised should

also be recorded; (c) it has the duty to formulate the

substantial questions of law and to put the opposite party on

notice and give fair and proper opportunity to meet the point.

The court also held that it is the duty cast upon the High
 18

Court to formulate substantial question of law involved in the

case even at the initial stage.

32. This court had occasion to determine the same issue in

Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor

(1999) 2 SCC 471. The court stated that the High Court can

exercise its jurisdiction under Section 100 C.P.C. only on the

basis of substantial questions of law which are to be framed at

the time of admission of the second appeal and the second

appeal has to be heard and decided only on the basis of the

such duly framed substantial questions of law.

33. A mere look at the said provision shows that the High

Court can exercise its jurisdiction under Section 100 C.P.C.

only on the basis of substantial questions of law which are to

be framed at the time of admission of the second appeal and

the second appeal has to be heard and decided only on the

basis of such duly framed substantial questions of law. The

impugned judgment shows that no such procedure was

followed by the learned Single Judge. It is held by a catena of

judgments by this court, some of them being, Kshitish

 19

Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438

and Sheel Chand v. Prakash Chand (1998) 6 SCC 683 that the

judgment rendered by the High Court under Section 100

C.P.C. without following the aforesaid procedure cannot be

sustained. On this short ground alone, this appeal is required

to be allowed.

34. In Kanai Lal Garari v. Murari Ganguly (1999) 6 SCC

35 the court has observed that it is mandatory to formulate

the substantial question of law while entertaining the appeal

in absence of which the judgment is to be set aside. In

Panchugopal Barua v. Umesh Chandra Goswami (1997) 4

SCC 713 and Santosh Hazari v. Purushottam Tiwari (2001) 3

SCC 179 the court reiterated the statement of law that the

High Court cannot proceed to hear a second appeal without

formulating the substantial question of law. These judgments

have been referred to in the later judgment of K. Raj and Anr.

v. Muthamma (2001) 6 SCC 279. A statement of law has been

reiterated regarding the scope and interference of the court in

second appeal under Section 100 of the Code of Civil

Procedure.
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35. In Ishwar Dass Jain v. Sohan Lal (2000) 1 SCC 434,

this court in para 10, has stated:

“Now under Section 100 CPC, 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.”

36. Again in Roop Singh v. Ram Singh (2000) 3 SCC 708,

this court has expressed that the jurisdiction of a High Court

is 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 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. That apart,
at the time of disposing of the matter the High
Court did not even notice the question of law
formulated by it at the time of admission of the
second appeal as there is no reference of it in the
impugned judgment….”

37. Again in Santosh Hazari v. Purushottam Tiwari

(deceased) by LRs. (2001) 3 SCC 179, another three-Judge

Bench of this court correctly delineated the scope of Section

 21

100 C.P.C.. The court observed that an obligation is cast on

the appellant to precisely state in the memorandum of appeal

the substantial question of law involved in the appeal and

which the appellant proposes to urge before the court. In the

said judgment, it was further mentioned that the High Court

must be satisfied that a substantial question of law is involved

in the case and such question has then to be formulated by

the High Court. According to the court 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

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 Section 109 of the Code of

Article 133(1) (a) of the Constitution.

38. In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5

SCC 311 the court came to the conclusion that the finding

thus reached by the first appellate court cannot be interfered

 22

with in a second appeal as no substantial question of law

would have flowed out of such a finding.

39. In Thiagarajan v. Sri Venugopalaswamy B. Koil

[(2004) 5 SCC 762], this court has held that the High Court in

its jurisdiction under Section 100 C.P.C. was not justified in

interfering with the findings of fact. The court observed that

to say the least the approach of the High Court was not

proper. It is the obligation of the courts of law to further the

clear intendment of the legislature and not frustrate it by

excluding the same. This court in a catena of decisions held

that where findings of fact by the lower appellate Court are

based on evidence, the High Court in second appeal cannot

substitute its own findings on reappreciation of evidence

merely on the ground that another view was possible.

40. In the same case, this court observed that in a case

where special leave petition was filed against a judgment of

the High Court interfering with findings of fact of the lower

appellate court. This court observed that to say the least the

approach of the High Court was not proper. It is the

obligation of the courts of law to further the clear intendment

 23

of the legislature and not frustrate it by excluding the same.

This court further observed that the High Court in second

appeal cannot substitute its own findings on reappreciation of

evidence merely on the ground that another view was possible.

41. This court again reminded the High Courts in

Commissioner, Hindu Religious & Charitable

Endowments v. P. Shanmugama [(2005) 9 SCC 232] that the

High Court has no jurisdiction in second appeal to interfere

with the finding of facts.

42. Again, this court in the case of State of Kerala v. Mohd.

Kunhi [(2005) 10 SCC 139] has reiterated the same principle

that the High Court is not justified in interfering with the

concurrent findings of fact. This court observed that, in doing

so, the High Court has gone beyond the scope of Section 100

of the Code of Civil Procedure.

43. Again, in the case of Madhavan Nair v. Bhaskar Pillai

[(2005) 10 SCC 553], this court observed that the High Court

was not justified in interfering with the concurrent findings of

fact. This court observed that it is well settled that even if the
 24

first appellate court commits an error in recording a finding of

fact, that itself will not be a ground for the High Court to upset

the same.

44. Again, in the case of Harjeet Singh v. Amrik Singh

[(2005) 12 SCC 270], this court with anguish has mentioned

that the High Court has no jurisdiction to interfere with the

findings of fact arrived at by the first appellate court. In this

case, the findings of the trial court and the lower appellate

court regarding readiness and willingness to perform their

part of contract was set aside by the High Court in its

jurisdiction under Section 100 C.P.C. This court, while

setting aside the judgment of the High Court, observed that

the High Court was not justified in interfering with the

concurrent findings of fact arrived at by the courts below.

45. In the case of H. P. Pyarejan v. Dasappa [(2006) 2 SCC

496] delivered on 6.2.2006, this court found serious infirmity

in the judgment of the High Court. This court observed that it

suffers from the vice of exercise of jurisdiction which did not

vest in the High Court. Under Section 100 of the Code (as
 25

amended in 1976) the jurisdiction of the court to interfere with

the judgments of the courts below is confined to hearing of

substantial questions of law. Interference with the finding of

fact by the High Court is not warranted if it invokes

reappreciation of evidence. This court found that the

impugned judgment of the High Court was vulnerable and

needed to be set aside.

46. In Chandrika Singh (Dead) by LRS & Another v.

Sarjug Singh & Another (2006) 12 SCC 49, this court again

reiterated legal position that the High Court under section 100

CPC has limited jurisdiction. To deal with cases having a

substantial question of law, this court observed as under:

“12. … While exercising its jurisdiction under

Section 100 of the Code of Civil Procedure, the High
Court is required to formulate a substantial
question of law in relation to a finding of fact. The
High Court exercises a limited jurisdiction in that
behalf. Ordinarily unless there exists a sufficient
and cogent reason, the findings of fact arrived at by
the courts below are binding on the High Court…”

47. In Chacko & Another v. Mahadevan (2007) 7 SCC 363,

while dealing with the jurisdiction of sections 96 and 100

CPC, this court laid down as under:

 26

“6. It may be mentioned that in a first appeal filed

under Section 96 CPC, the appellate court can go
into questions of fact, whereas in a second appeal
filed under Section 100 CPC the High Court cannot
interfere with the findings of fact of the first
appellate court, and it is confined only to questions
of law.”

48. In Bokka Subba Rao v. Kukkala Balakrishna &

Others (2008) 3 SCC 99, this court has clearly laid down that

without formulating substantial questions of law under

section 100 CPC, the High Court cannot interfere with the

findings of fact. The court laid down as under:

“4. … It is now well settled by a 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 … .”

49. In Nune Prasad & Others v. Nune Ramakrishna

(2008) 8 SCC 258, this court laid down that the legislature

has conferred a limited jurisdiction under section 100 CPC on

the High Court to deal with the cases where substantial

question of law is involved.

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50. In Basayyal Mathad v. Rudrayya S. Mathad &

Others (2008) 3 SCC 120, this court has held that

interference by the High Court without framing substantial

question of law is clearly contrary to the mandate of section

100 CPC.

51. In Dharam Singh v. Karnail Singh & Others, (2008) 9

SCC 759, this court again crystallized the legal position in the

following words:

“13. The plea about proviso to Sub-section (5) of

Section 100 instead of supporting the stand of the
respondent rather goes against them. The proviso is
applicable only when any substantial question of
law has already been formulated and it empowers
the High Court to hear, for reasons to be recorded,
the appeal on any other substantial question of law.
The expression "on any other substantial question
of law" clearly shows that there must be some
substantial question of law already formulated and
then only another substantial question of law which
was not formulated earlier can be taken up by the
High Court for reasons to be recorded, if it is of the
view that the case involves such question.”

52. In Narendra Gopal Vidyarthi v. Rajat Vidyarthi, 2008

(16) SCALE 122, this court laid down that the High Court

would be justified to interfere under section 100 CPC only if it

involves substantial question of law.

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53. In a recent judgment U.R. Virupakshaiah v.

Sarvamma & Another, 2009 (1) SCALE 89, this court has

once again crystallized the legal position after 1976

Amendment of the CPC. The court observed as under:

“The Code of Civil Procedure was amended in the

year 1976 by reason of Code of Civil Procedure
(Amendment) Act, 1976. In terms of the said
amendment, it is now essential for the High Court
to formulate a substantial question of law. The
judgments of the trial court and the First Appellate
Court can be interfered with only upon formulation
of a substantial question of law…”

Legislative Background in the 54th Report of the Law

Commission of India submitted in 1973:

54. The comprehensive 54th Report of the Law Commission of

India submitted to the Government of India in 1973 gives

historical background regarding ambit and scope of Section

100 C.P.C. According to the said report, any rational system

of administration of civil law should recognize that litigation in

civil cases should have two hearings on facts – one by the trial

court and one by the court of appeal.

55. In the 54th Report of the Law Commission of India, it is

incorporated that it may be permissible to point out that a

 29

search for absolute truth in the administration of justice,

however, laudable, must in the very nature of things be put

under some reasonable restraint. In other words, a search for

truth has to be reconciled with the doctrine of finality. In

judicial hierarchy finality is absolutely important because that

gives certainty to the law. Even in the interest of litigants

themselves it may not be unreasonable to draw a line in

respect of the two different categories of litigation where

procedure will say at a certain stage that questions of fact

have been decided by the lower courts and the matter should

be allowed to rest where it lies without any further appeal.

This may be somewhat harsh to an individual litigant; but, in

the larger interest of the administration of justice, this view

seems to us to be juristically sound and pragmatically wise. It

is in the light of this basic approach that we will now proceed

to consider some of the cases which were decided more than a

century ago.

56. The question could perhaps be asked, why the litigant

who wishes to have justice from the highest Court of the State

should be denied the opportunity to do so, at least where

 30

there is a flaw in the conclusion on facts reached by the trial

court or by the court of first appeal. The answer is obvious

that even litigants have to be protected against too persistent

a pursuit of their goal of perfectly satisfactory justice. An

unqualified right of first appeal may be necessary for the

satisfaction of the defeated litigant; but a wide right of second

appeal is more in the nature of a luxury.

57. The rational behind allowing a second appeal on a

question of law is, that there ought to be some tribunal having

jurisdiction that will enable it to maintain, and, where

necessary, re-establish, uniformity throughout the State on

important legal issues, so that within the area of the State, the

law, in so far as it is not enacted law, should be laid down, or

capable of being laid down, by one court whose rulings will be

binding on all courts, tribunals and authorities within the

area over which it has jurisdiction. This is implicit in any

legal system where the higher courts have authority to make

binding decisions on questions of law.

58. It may be relevant to recall the statement of Douglas

Payne on “Appeals on Questions of Fact” reported in (1958)

 31

Current Legal Problem 181. He observed that the real

justification for appeals on questions of this sort is not so

much that the law laid down by the appeal court is likely to be

superior to that laid down by a lower court as that there

should be a final rule laid down which binds all future courts

and so facilitates the prediction of the law. In such a case the

individual litigants are sacrificed, with some justification, on

the altar of law-making and must find such consolation as

they can in the monument of a leading case.

Historical Perspective:

59. The predecessors of the High Courts in their civil

appellate jurisdiction were the Sadar Divani Adalats. The

right of appeal to the Sadar Divani Adalat was very wide

initially, but came to be severely curtailed in the course of

time. The “Conwallis Scheme”, for example, made provision

for two appeals in every category of cases, irrespective of its

value. By 1814, this was reduced to one appeal only. Only in

cases of Rs.5,000 or over, there could be two appeals; one to

the Provincial Court of Appeal and second to the Sadar Divani

Adalat. As Lord Hastings observed, -

 32

“The facility of appeal is founded on a most

laudable principle of securing, by double and treble
checks, the proper decision of all suits, but the
utopian idea, in its attempt to prevent individual
injury from a wrong decision, has been productive
of general injustice by withholding redress, and
general inconvenience, by perpetuating litigation”.

Arrears:

60. The primary cause of the accumulation of arrears of

second appeal in the High Court is the laxity with which

second appeals are admitted without serious scrutiny of the

provisions of Section 100 C.P.C. It is the bounden duty of the

High Court to entertain second appeal within the ambit and

scope of Section 100 C.P.C.

61. The question which is often asked is why should a

litigant have the right of two appeals even on questions of law?

The answer to this query is that in every State there are

number of District Courts and courts in the District cannot be

final arbiters on questions of law. If the law is to be uniformly

interpreted and applied, questions of law must be decided by

the highest Court in the State whose decisions are binding on

all subordinate courts.

Rationale behind permitting second appeal on question of

law:
 33

62. The rationale behind allowing a second appeal on a

question of law is, that there ought to be some tribunal having

a jurisdiction that will enable it to maintain, and, where

necessary, re-establish, uniformity throughout the State on

important legal issues, so that within the area of the State, the

law, in so far as it is not enacted law, should be laid down, or

capable of being laid down, by one court whose rulings will be

binding on all courts, tribunals and authorities within the

area over which it has jurisdiction. This is implicit in any

legal system where the higher courts have authority to make

binding decisions on question of law.

63. The analysis of cases decided by the Privy Council and

this court prior to 1976 clearly indicated the scope of

interference under Section 100 C.P.C. by this Court. Even

prior to amendment, the consistent position has been that the

courts should not interfere with the concurrent findings of

facts.

64. Now, after 1976 Amendment, the scope of Section 100

has been drastically curtailed and narrowed down. The High

 34

Courts would have jurisdiction of interfering under Section

100 C.P.C. only in a case where substantial questions of law

are involved and those questions have been clearly formulated

in the memorandum of appeal. At the time of admission of the

second appeal, it is the bounden duty and obligation of the

High Court to formulate substantial questions of law and then

only the High Court is permitted to proceed with the case to

decide those questions of law. The language used in the

amended section specifically incorporates the words as

“substantial question of law” which is indicative of the

legislative intention. It must be clearly understood that the

legislative intention was very clear that legislature never

wanted second appeal to become “third trial on facts” or “one

more dice in the gamble”. The effect of the amendment

mainly, according to the amended section, was:

(i) The High Court would be justified in admitting

the second appeal only when a substantial
question of law is involved;

(ii) The substantial question of law to precisely

state such question;

(iii) A duty has been cast on the High Court to

formulate substantial question of law before
hearing the appeal;
 35

(iv) Another part of the Section is that the appeal

shall be heard only on that question.

65. The fact that, in a series of cases, this court was

compelled to interfere was because the true legislative

intendment and scope of Section 100 C.P.C. have neither been

appreciated nor applied. A class of judges while administering

law honestly believe that, if they are satisfied that, in any

second appeal brought before them evidence has been grossly

misappreciated either by the lower appellate court or by both

the courts below, it is their duty to interfere, because they

seem to feel that a decree following upon a gross

misappreciation of evidence involves injustice and it is the

duty of the High Court to redress such injustice. We would

like to reiterate that the justice has to be administered in

accordance with law.

66. When Section 100 C.P.C. is critically examined then,

according to the legislative mandate, the interference by the

High Court is permissible only in cases involving substantial

questions of law.
 36

67. The Judicial Committee of the Privy Council as early as

in 1890 stated that there is no jurisdiction to entertain a

second appeal on the ground of an erroneous finding of fact,

however, gross or inexcusable the error may seem to be and

they added a note of warning that no Court in India has power

to add to, or enlarge, the grounds specified in Section 100.

68. The High Court seriously erred in interfering with the

findings of facts arrived at by the trial court and affirmed by

the first appellate court.

69. The scope of interference by the High Court in second

appeal under section 100 CPC after 1976 Amendment is

strictly confined to cases involving substantial questions of

law. The High Court would not be justified in dealing with any

second appeal without first formulating substantial question

of law.

70. The legislative intention has been clearly spelt out in a

series of cases of this court. In Gurdev Kaur (supra), this

court exhaustively dealt with the cases before and after 1976
 37

Amendment of CPC. This court clearly observed that the

scope and ambit of section 100 CPC has been drastically

changed after the amendment.

71. It is a matter of common experience in this court that

despite clear enunciation of law in a catena of cases of this

court, a large number of cases are brought to our notice where

the High Court under section 100 CPC are disturbing the

concurrent findings of fact without formulating the substantial

question of law. We have cited only some cases and these

cases can be easily multiplied further to demonstrate that this

court is compelled to interfere in a large number of cases

decided by the High Courts under section 100 CPC.

Eventually this court has to set aside these judgments of the

High Courts and remit the cases to the respective High Courts

for deciding them de novo after formulating substantial

question of law. Unfortunately, several years are lost in the

process. Litigants find it both extremely expensive and time

consuming. This is one of the main reasons of delay in the

administration of justice in civil matters.

 38

72. We have once again undertaken this exercise and tried to

crystallize the legislative intention by referring to a number of

cases decided by this court with the hope that now the High

Courts would refrain from interfering with the concurrent

findings of fact without formulating substantial question of

law.

73. In this view of the clear legal position which emerges by

the legislative intention and ratio of the judgments of

aforementioned cases, the impugned judgment of the High

Court is wholly unsustainable in law and is accordingly set

aside and consequently the findings of the trial court as

upheld by the first appellate court are restored.

74. Accordingly, the appeal is allowed. In the facts and

circumstances of the case, the parties are directed to bear

their own costs.

…….……………………..J.
(Dalveer Bhandari)

…….……………………..J.
(Harjit Singh Bedi)
 39

New Delhi;
February 12, 2009.