Regular second appeal can't be examined without framing questions of law: Supreme Court

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Existence of a substantial question of law is the sine qua non for exercise of power under Section 100, Code, the bench pointed out

The Supreme Court has emphasized that a regular second appeal cannot be examined without framing a substantial question of law.

A bench of Justices CT Ravikumar Sudhanshu Dhulia explained the legal position in the matter of exercise of power under Section 100 of the Civil Procedure Code.

The court allowed the appeals against the Uttarakhand High Court's order of March 23, 2018 passed in second appeal and the order in review petition of October 25, 2018.

The High Court's order was found to have revealed that despite the recalling of the substantial question of law framed on July 29, 2009, no new question of law was framed and considered thereunder.

The bench pointed out the impugned judgment would reveal that referring to the said substantial question of law that was recalled, it was held that it could not even be considered as a question of law and it could, at the most, be a case of professional misconduct and too, required to be proved. 

"Evidently, after observing thus the High Court permitted the parties to advance arguments on the issues arising from the pleadings and the oral and documentary evidence led by the parties qua partition. Evidently, thereafter the High Court had undertaken re-appreciation of the evidence, without formulating any question of law warranting such re-appreciation," the bench said. 

The top court said in the contextual situation, it is relevant to refer to the decision of the Supreme Court in 'Govindaraju V. Mariamman' (2005) whereunder the top court held from the analysis of Section 100 that if the appeal was entertained without framing substantial questions of law, then it would be illegal and would amount to failure or abdication of the duty cast on the court.

Accordingly, the bench remanded the matter to the Uttarakhand High Court to frame the questions of law, if any, exist for consideration and to deal with it in accordance with law. Further, taking note of the fact that the appeals are of the year 2019, High Court has been requested to dispose of the appeal expeditiously.