The Apex court observed regarding to frame substantial questions in relation to 2nd appeal is not a formality but meant to be adhered to.
Division bench of Justice K.M Joseph and S.Ravindra Bhat observed that limited exercise of power of high courts in case of 2nd appeal is based on high public policy.
The suit related to easement right is dismissed in trial court and 1st appellate court , but the high court i.e 2nd appellate court entertained and allowed the 2nd appeal.
It is explicitly written in section 100 of code of civil procedure, 1908
Section 100 states the situations where high court can allow the 2nd appeal.
1] If case involves substantial question of law .
2] appellate decree passed ex-parte
3] memorandum of appeal shall precisely state the substantial question of law involved in appeal
4] where court is satisfied , it shall formulate the substantial question of law.
5] Respondent be allowed to argue that case does not involve such question .
But the point is there must be substantial question of law.
Appellant contended before supreme court that appeal in 2nd appeal is allowed only if substantial question of law arises , but scrutiny of impugned judgement shows absence of substantial question of law.
The apex court held that,
“Scheme of CPC accords finality to findings of fact rendered by 1st appellate court , subject to special cases . Restriction are put on high court so that finality to proceedings at particular level in court hierarchy . Therefore formulation of substantial question is not a mere formality because whole judgement revolves around substantial question , so they are meant to be adhered” .