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History of law making it mandatory

  • This is governed under sub-section (1) of section 100 of Civil Procedure code.
  • It contemplates that an appeal must lie with High Court if it involves the substantial question of law.
  • Moreover, that substantial question of law must be stated precisely in the memorandum of appeal. And, if the High Court stands satisfied that such question of law exists, it needs to formulate those questions. The appeal has to heard in the court with respect to such questions.
  • If the substantial question of law which are formed by appellant are found to be arising in the instant case, only then court is required to frame questions of law. If no such question arises, it is not mandatory for the High Courts to formulate Questions.
  • Also, the High Court need not frame substantial question of law if it finds no error in the rulings of First Appellate Court.

What is substantial question of law?

  • The term is not defined in the code but the proper test for substantial question was laid down by one of the Supreme Courts’ judgement inSir Chunilal V. Mehta And Sons, Ltd. vs The Century Spinning and Manufacturing Co., Ltd.
  • If the question of law would be substantial if it is of general public importance.
  • If it directly or indirectly affects the rights of the parties involved.
  • And if it does affect their right, whether or not it is settled by the Privy court or The Federal court and if it calls for discussion of alternative views.

What were the previous rulings of SC?

  • The Supreme Court in Sreedevi & Ors V. Sarojam & Ors CA no.1301 of 2019, has examined that it is an obligation for a High Court, if it is considering a Second Appeal, to frame substantial question of law in second appeal even if lower courts’ findings are contradicted per se.
  • The two-judges bench of Justice AM Khanwilker and Justice Ajay Rastogi pointed out that in one of the rulings of Kerala HC in2012 (4) SCC 344 – Hardeep Kaur Vs. Malkiat Kaur, the court decided the case of second appeal without formulating the substantial question of law on the ground of which the bench set aside the judgement.
  • The bench said, “Even on a fair reading of the judgment, we are of the considered opinion that the High Court proceeded to decide the Second Appeal without formulating any substantial question of law, which it ought to have done in view of the mandate of Section 100 of the Code of Civil Procedure, 1908.”

Current ruling of Supreme Court

  • The three-judge bench of Supreme Court has observed that a HC it is not mandatory for a high Court to frame the question of law while dismissing a second appeal.
  • The bench was comprised of Justice L. Nageshwara Rao, Hemant Gupta and Ajay Rastogi pointed out that the formulation of substantial question of law arises only if there are some question of law and not in the absence of any substantial question of law.
  • Judgement came after the bench was deciding the appeal filed against the judgement of High court which rejected the plea without the formulation of substantial question of law, which according to appeal is necessary under section 100 of Civil Procedure Code,1908.
  • While deciding, the bench also observed the case of Ashok Rangnath Magar v.ShrikantGovindraoSangvikar (2015) 16 SCC 763 in which it was held that it is not mandatory for the court to formulate a substantial question of law.
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