Supreme Court passed judgment on 17.01.2025 in the matter of U. Sudheera & Others vs. C. Yashoda & Others to reaffirm that judicial principle that while dealing with a second appeal filed under Order XLI r/w Section 100 CPC, High Court cannot grant ad interim order without framing substantial question of law.
The facts before the Supreme
Court were that the suit filed by the Respondent No.1/ Plaintiff for permanent
injunction was decreed in her favour by judgment dated 05.02.2016 but the First
Appellate Court set aside the same and allowed the appeal suit filed by the
appellants / defendants by judgment dated 11.11.2022. Consequently, second
appeal was preferred before High Court, in which, without formulating the
substantial questions of law, the High Court granted the interim relief in the
form of status quo to be maintained by the parties, and the
same was in question before the Supreme Court.
Supreme Court noted that right of
filing a second appeal is provided under section 100 CPC which confers
jurisdiction on the High Court only when it is satisfied that the case involves
a substantial question of law. In this context, Court referred its previous
judgments in the matter of: (i) Ram Phal, Ram Phal v. Banarasi,
(2003) 11 SCC 762; (ii) Raghavendra Swamy Mutt v. Uttaradi Mutt,
(2016) 11 SCC 235; (iii) Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179;
(iv) Roop Singh v. Ram Singh, (2000) 3 SCC 708; (v) SBI v. S.N. Goyal, (2008) 8
SCC 92; (vi) Municipal Committee, Hoshiarpur v. Punjab SEB, (2010) 13 SCC 21
(vii) Umerkhan v. Bismillabi, (2011) 9 SCC 684 (viii) Bhagyashree Anant
Gaonkar v. Narendra @ Nagesh Bharma Holkar, (2023) SCC Online 1236 (ix) Hemavathi
& others v. V.Hombegowda and another, 2023 INSC 848 : 2023 SCC
OnLine SC 1206 (x) Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal,
1961 SCC OnLine SC 17 : 1962 Supp (1) SCR 450 : AIR 1962 SC 527.
Supreme Court noted that as per
Section 100, a High Court can proceed to hear a Second Appeal only if the case
involves a substantial question of law, implying that when the appeal is taken
up for admission, it must satisfy itself that a substantial question of law is
involved. Thereafter, the High Court must frame such question and direct the
parties to submit their arguments on such question. The scheme of the Code also
enables the High Court to hear the parties on any other substantial question of
law, not framed by it at the first hearing, but during the course of hearing
for the reasons to be recorded. Again, if the court is not satisfied at the
first hearing that the case does not involve a substantial question of law, it
cannot proceed further. Once such additional question of law is framed during
the course of hearing, the parties must be given opportunity to submit their
arguments on the other substantial question of law(s).
Further, Supreme Court also took
cognizance of the fact, that in some High Courts, there is a practice to order
Notice of Motion, whereby even before an appeal is admitted, an opportunity is
granted to the respondents therein to contest the case. In such a case, it is
implied that the High Court is not satisfied prima facie with
the case. Such dissatisfaction could be either for a reason that the case does
not involve a substantial question of law or for a reason that in the facts of
the case, the question of law, though substantial, would not warrant
interference. In such cases, though the High Court in exercise of its power
under Section 151 of CPC is generally empowered to grant interim orders to
preserve the subject matter of the dispute and to avoid multiplicity of
proceedings, the court cannot grant any interim protection to the appellant,
unless the substantial question of law is framed under Section 100 (4) or as
per the Proviso. On the other hand, if the High Court is prima
facie of the view that the substantial question of law involved would
not require much time for disposal, the court is bound to frame the substantial
question of law at the stage of admission and then order short notice.
Thus, Supreme Court reaffirmed
that the law is clear that a second appeal will be maintainable before the High
Court, only if it is satisfied that the case involves a substantial question of
law. If no substantial question of law arises, the second appeal could not have
been entertained and the same ought to have been dismissed, as the jurisdiction
of the High Court itself is not yet invoked. The High Court acquires
jurisdiction to deal with the second appeal on merits only when it frames a
substantial question of law as required to be framed under Section 100 CPC; and
it cannot grant an interim order, without framing substantial question of law.
In light of the aforesaid settled
legal position, the impugned order dated 20.09.2024 of the High Court was aside
by the Supreme Court.
