TAPESAR Vs. PAHALWAN

JUDGEMENT

(1.) CASE called out in the revised list. Sri Ashish Kumar Mishra, holding brief for Sri Shashi Nandan, learned Counsel for the plaintiff-appellant is present. However, learned Counsel for the defendants-respondents are not present. The present Second Appeal is listed today for hearing.

(2.) A perusal of the record shows that by the order dated 22-9-1982, the present Second Appeal was admitted, and the notice was directed to be issued. However, no Substantial Question of Law, as per the requirements of sub-section (4) of Section 100 of the Code of Civil Procedure, was framed by the Court. The question arises as to whether in such circumstances, it is open to this Court to frame Substantial Question of Law at this stage of hearing of the Second Appeal. Section 100 of the Code of Civil Procedure lays down as under : "section 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 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. "

(3.) IT has been laid down by the Supreme Court in various decisions that it is incumbent on the High Court to frame Substantial Question of Law under Section 100 of the Code of Civil Procedure. If the Second Appeal is entertained without framing Substantial Question of Law, it amounts to illegality and failure to perform duty cast on the Court.