Second Appeal

Second Appeal

Substantial question of law in respect to Second Appeal

It is quite obvious that a person who is aggrieved from the court of first instance goes to the first appeal and thereby the decision of superior court will be against one party and in favour of the other. But what happens when the appellate court decides a case against a party. Then that party would go for a second appeal. But that procedure is not as simple as it sounds and requires a very important prerequisite which is such case to the second appeal that is High Court must involve a substantial question of law.

The jurisprudential approach of the legislature behind this provision under Section 100 of the Code of Civil Procedure, 1908 has been observed as it is necessary to provide for a stricter and better scrutiny of second appeals as they should be made subject to special leave, instead of giving an absolute right of appeal limiting it to a question of law.[1]

The provision of Section 100 reads as “Firstly, 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. Secondly, an appeal may lie under this section from an appellate decree passed ex parte. Thirdly, in an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. Fourthly, where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. Fifthly, 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 the case does not involve such question with the proviso 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.”

Dealing with the substantial question of law, the term carries the most importance since it can be said it’s a sole test to determine whether a case is appealable or not. The term is not been defined in the Code itself but has been construed from the Constitution of India, 1950 and other various statutes which in one way or other showers light on the substantial question of law. It can be said that there is not hard and fast rule for determining a substantial question of law, wherein the term “involves” from a close scrutiny of section confers those cases wherein the question must arise in a case and it is necessary to decide it.[2]

A judgement aptly provides for the meaning of substantial question of law wherein it was observed that “the proper test for determining whether a question raised in the case is substantial would be whether it is of general public importance or whether it directly and substantially affects the rights of the parties…” It is further held that “if the question is settled by the highest court or  the general principles to be applied in determining the question are well-settled and there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be a substantial question of law.”[3]

Therefore from the above test it can be determined which case involves a substantial question of law and which does not, for instance, a question of admissibility of evidence or irrelevance or inadmissibility of evidence or misinterpretation of material documents or recording any finding without any evidence on record which deals with the Indian Evidence Act can be said to be substantial questions of law. Whereas, cases that involves questions as to erroneous fact findings or general questions or any fact finding by the first appeal or fact finding which is drawn on evidence on record are considered to be questions which are nowhere close to the substantial questions of law.

With the power to prefer the second appeal to the High Court there also arise certain duties and obligations to be meted out along with. As it is quite apparent that the power of Second appeal is not an inherent power of the High Court as it must be conferred upon it by certain statute. Therefore, the foremost duty of the High Court can be derived from the content of section 100 itself that the words “shall formulate the question” provides that it is duty of the High Court to formulate a substantial question of law and that can be only done if the High Court is satisfied with such question, which can be inferred as its power.

But there is also a saving clause in form of proviso under section 100(5) which provides that on recording reasons the High Court can also entertain and decide a second appeal to finally be heard even if such appeal involves a substantial question of law which is not even formulated at the time of admission of appeal. Thereby, the High Court can also exercise its judicial discretion of superiority.

It must be also kept in mind that the substantial question of law view must not prejudice to the fact that even question of fact can be decided by the High Court since there is also a provision under Section 103 of the Code which provides that a High Court may decide question of fact during second appeal if such issue has not been determined either by the trial court or by the appellate court or by both or has been wrongly determined by such court or courts by reason of their decisions on a substantial question of law.

As a concluding remark, it can be said that the powers of High court are repository and the formulation of substantial question of law may be done away with but a duty is henceforth conferred upon the appellant to precisely state in memorandum of appeal the substantial question of law in the appeal. 


[1] Law Commission’s Fifty-Fourth Report

[2] SBI v. S.N. Goyal (2008) 8 SCC 92

[3] Chunilal V. Mehta and Sons v. Century Spg. And Mgf. Company Limited AIR 1962 SC 1314

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