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Second Appeal in CPC

Updated: May 5

Second Appeal in CPC


Provisions of CPC

Sections 100 through 103, along with 107-108, and Order 42 of Civil Procedure Code (CPC) are concerned with the realm of second appeals. The right to appeal is not an inherent facet of legal proceedings; it only exists when expressly granted by statute.

Section 100 of the Code permits the initiation of second appeals in the High Court under specific conditions. The High Court may entertain such appeals if it is convinced that "the case involves a substantial question of law," with no allowance for other grounds to be considered.

Section 100 of the Civil Procedure Code grants the provision for filing a second appeal in the High Court. It states as follows:

"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 the case does not involve such question: Provided that nothing in this subsection 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."


Scope of Section 100 of CPC

Section 100 of the Code, as amended by the Amendment Act of 1976, stipulates that an appeal shall be permissible to the High Court from every decree passed in appeal by any subordinate court if the High Court is convinced that the case raises a substantial question of law.

This provision extends to appeals against ex parte appellate decrees as well. In the memorandum of appeal, the appellant is obliged to precisely articulate the substantial question of law at issue. Upon the High Court's acknowledgment of the presence of a substantial question of law, it is mandated to frame such question.

The appeal is then adjudicated solely on the formulated question. Nevertheless, the respondent is granted the opportunity during the appeal hearing to contend that the question identified by the court as substantial does not hold such status.

Notwithstanding, the High Court retains the authority to deliberate on any other substantial question of law, not initially formulated, if it deems such question integral to the case. However, the High Court must provide reasoned justification for this course of action.

The amendment to Section 100 has significantly altered and restricted the scope of second appeals. Formerly, a second appeal could be lodged based on any of the three grounds outlined in clauses (a), (b), or (c) of Section 100, which were liberally construed by the High Courts, resulting in a proliferation of contradictory judgments.

The Law Commission aptly noted, "It appears that the wide language of Section 100 and the somewhat liberal interpretation placed judicially on it have practically resulted in giving a goodbye to the basic principle that on questions of fact decisions of courts of first instance would be final subject to one appeal."

Post-amendment, the following consequences are observed:

(i) The High Court must ascertain that the case involves a substantial question of law;

(ii) The memorandum of appeal must precisely articulate this question;

(iii) The High Court, upon admission of the appeal, must formulate this question;

(iv) The appeal shall be exclusively heard on this formulated question;

(v) During the appeal hearing, the respondent may argue against the existence of such question;

(vi) Nonetheless, the High Court is empowered to consider the second appeal on any other substantial question of law, not initially formulated, if it deems such a question relevant. However, the High Court must provide reasoning for this decision.

Substantial Question of Law

The term "substantial question of law" remains undefined by the legislature, despite its utilisation in the Constitution and other statutes. This phrase defies rigid classification, and no universally applicable rule can be established to determine its emergence.

Regarding jurisdiction under Section 100 of the Civil Procedure Code, a High Court may entertain a second appeal only if it is convinced that the case "involves" a substantial question of law.

The term "involves" implies that such a question must be pertinent to the case and necessitates resolution. Mere raising of the question by the appellant does not suffice for the High Court to entertain the appeal. The term "involves" underscores a significant element of necessity.

Though the Code does not offer a definition of the expression "substantial question of law," in Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd, the Supreme Court provided guidance. The Court opined that a question of law can be deemed substantial if it holds general public importance or directly and substantially impacts the rights of the parties.

Additionally, if the question remains unsettled by the highest court or if there exists doubt or room for alternative interpretations, it qualifies as substantial. However, if the question is settled by the highest court or the principles guiding it are well-established, rendering the plea raised patently absurd, it ceases to be substantial.


Substantial Question of Law Involved: Illustrative Cases

Determining whether a substantial question of law is at hand in a particular matter hinges upon the specific facts and circumstances of each case.

The term "involves" signifies a significant degree of necessity; it denotes that such a question unequivocally arises in the case.

Mere raising of such a question in a second appeal is insufficient; it must undeniably and distinctly emerge in the case. Furthermore, if a question of law has already been settled by the highest court, regardless of its past importance or complexity and its potential impact on the parties, it would not qualify as a substantial question of law.

The following questions may be considered substantial questions of law:

(i) A question of law that prompts conflicting judicial opinions;

(ii) Recording of a finding without any evidence on record;

(iii) Inferences drawn from or legal ramifications of established or admitted facts;

(iv) Disregard or non-consideration of relevant or admissible evidence;

(v) Consideration of irrelevant or inadmissible evidence;

(vi) Misinterpretation of evidence or documents;

(vii) Interpretation or construction of crucial documents;

(viii) Question regarding the admissibility of evidence;

(ix) Misplacement of burden of proof;

(x) Disposal of appeal prior to addressing an application for additional evidence under Order 41 Rule 27, etc.

Substantial Question of Law Not Involved: Illustrative Cases

The following questions were deemed not to be substantial questions of law:

(i) Concurrent findings of fact recorded by lower courts;

(ii) Finding of fact recorded by the first appellate court;

(iii) Cases where two plausible views exist;

(iv) Instances where a new case is sought to be established;

(v) Cases where a new plea is raised, based on fact, or a mixture of fact and law, or merely on a question of law (but not a substantial question of law);

(vi) Questions of a general or omnibus nature;

(vii) Inferences drawn regarding findings of fact based on material evidence and records;

(viii) Questions conclusively settled by the Supreme Court, Privy Council, or Federal Court;

(ix) Attacks on findings of fact on grounds of erroneousness (as opposed to perversity);

(x) Instances where the High Court deems the reasoning of the first appellate court inappropriate, etc.

No Second Appeal in Certain Cases

According to the Code, no second appeal is permissible in specific scenarios. Similarly, a second appeal cannot be pursued in any suit where the original claim for money recovery does not exceed Rs 25,000.

However, if the case encompasses additional issues beyond monetary recovery, a second appeal can still be pursued.

No Letters Patent Appeal

Section 100-A, introduced by the Amendment Act of 1976, stipulates that no further appeal can be lodged against the verdict of a single judge in a second appeal. The Statement of Objects and Reasons elucidates that under the Letters Patent, an appeal is admissible in certain cases against the ruling of a Single Judge in a second appeal.

Such an appeal essentially constitutes a third appeal. To streamline the adjudication process and minimise delays, it is deemed undesirable to permit more than two appeals. Therefore, Section 100-A is introduced to preclude any additional appeal against the decision of a Single Judge in a second appeal.

It's important to note that this provision is prospective, not retrospective, and does not impact the vested right of a Letters Patent Appeal against judgments pronounced before February 1, 1977.


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