This is the first part of a bi-partite blog series.
Arrears of cases have always been a problem for Indian Judicial System. Something which is common and finds place in the list of arrears throughout the High Courts is Second Appeal in Civil Cases. The issue is so trending that every other day we find some decision of Apex Court assailing the approach adopted by High Courts while dealing with Second Appeal in Civil Cases. Because of the laxity with which second appeals are admitted and lack of serious scrutiny of the provisions of Civil Procedure Code, the parties are facing problem of continuous and vexatious litigation.
Despite declaration of law in numerous judgments, it is evident that the scope and ambit of Section 100 C.P.C. has not been properly appreciated and applied in a large number of cases. The authors in this present Bi-Partite Article Series makes a serious endeavour to discern legislative intention, ambit and scope of interference under Section 100 C.P.C. The authors plan to carry out this exercise by examining important judgments decided recently. This effort is made with the hope that it will help the legal community in understanding the correct position of law.
The expression appeal has not been defined in the code. According to dictionary meaning, “appeal” is the judicial examination of the decision by a higher court of the decision of an inferior court.[i] In Nagendra Nath Dey vs Suresh Chandra Dey[ii], it was said that there is no definition of appeal in the Code of Civil Procedure, but there is no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent. So appeal is basically testing the soundness of decision of lower court by the higher court.
Sections 100 to 103, 107-108 and Order 42 of Civil Procedure Code (CPC)[iii] deal with second appeals. Right of appeal is not a natural or inherent right and it does not exist unless expressly conferred by the statute.[iv] It is to be noted that only from decrees second appeal lies and not from orders. Under CPC Second Appeal always lies to High Court.[v]
Section 100 of the Code of Civil Procedure, 1908 (for short, C.P.C.) corresponds to Section 584 of the old Civil Procedure Code of 1882. The Section 100 (prior to 1976 amendment) reads as under:
“100. Second appeal
(1) “Save where otherwise 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 a High Court on any of the following grounds, namely :
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
(2) An appeal may lie under this section from an appellate decree passed ex parte.”
The wide language of this section and liberal interpretation by judiciary by adopting several concepts like a mixed question of law and fact, a legal inference drawn from the facts proved and even the point that case has not been properly approached by the courts below, 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. This created a confusion in the minds of the public as to the legitimate scope of second appeal and unnecessary burdened High Courts.
Need for Change
The facility of appeal is founded on a most laudable principle of securing, by double and treble checks, the proper decision of all suits, but the utopian idea, in its attempt to prevent individual injury from a wrong decision, has been productive of general injustice by withholding redress, and general inconvenience, by perpetuating litigation.
Supreme Court’s observation in Deity Pattabhiramaswamy v. S. Hanymayya and Others[vi] shows that why there was a need for an amendment. Court observed that notwithstanding the clear and authoritative pronouncement of the Privy Council on the limits and the scope of the High Court’s jurisdiction under section 100, Civil Procedure Code, “some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public”.
Law Commission in its Fifty-Fourth Report as well Shah Committee in its report advocated for stricter and better scrutiny of second appeal and argued for right to second appeal only on questions of law.
In the light of these observations the Amendment Act of 1976 was brought in and it introduced drastic changes in the scope and ambit of Section 100 C.P.C. A second appeal under Section 100 C.P.C. is now confined to cases where a question of law is involved and such question must be a substantial one. Section 100, as amended, reads as under:
“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 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.”
The scope of interference by the High Court in second appeal under section 100 CPC after 1976 Amendment is strictly confined to cases involving substantial questions of law. The High Court would not be justified in dealing with any second appeal without first formulating substantial question of law.
In Chacko & Another v. Mahadevan[vii], while dealing with the jurisdiction of Sections 96 and 100 CPC, the court laid down as under:
“It may be mentioned that in a first appeal filed under Section 96 CPC, the appellate court can go into questions of fact, whereas in a second appeal filed under Section 100 CPC the High Court cannot interfere with the findings of fact of the first appellate court, and it is confined only to questions of law.”
Substantial Question of Law
The term has not been defined by the legislature. However it cannot be confined to a strait- jacket formula and no rule of universal application can be formulated as to when it can be said that a substantial question of law has arisen. What is a substantial question of law as between the parties would certainly depend upon the facts and circumstances of every case. Thus for instance, if a question of law bad been settled by the highest court of the country the question of law however important or difficult it may have been regarded in the past and however much it may affect any of the parties would cease to be a substantial question of law. Nor again, would a question of law which is palpably absurd be a substantial question of law as between the parties.[viii]
To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.
“To be a question of law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter.”[ix]
A question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.
A substantial question of law is one which is of general public importance or which directly and substantially affects the rights of the parties and which have not been finally settled by the Supreme Court, the Privy Council or the Federal Court or which is not free from difficulty or which calls for discussion of alternative views.[x]
Substantial Question of Law and Question of Law of General Public Importance
Substantial question is not necessarily a question which is of general public importance. It must be a substantial question of law as between-the parties in the case involved. But here again it must not be forgotten that what is contemplated is not a question of law alone; it must be a substantial question. One can define it negatively. For instance, if there is a well-established principle of law and that principle is applied to a given set of facts that would certainly not be a substantial question of law. Where the question of law is not well settled or where there is some doubt as to the principle of law involved, it certainly would raise a substantial question of law which would require a final adjudication by the highest Court.[xi]
A question of law is substantial as between the parties if the decision turns one way or another on the particular view taken of the law. If it does not affect the decision then it cannot be substantial as between the parties. But if it substantially affects the decision then it is substantial as between the parties though it may be wholly unimportant to others.[xii]
[i] Chamber’s 21st Century Dictionary (1997) at p. 59.
[ii] (1931-32) 59 IA 283.
[iv] Ganga Bai vs Vijay Kumar, (1974) 2 SCC 393.
[v] Section 100 CPC.
[vi] AIR 1959 SC 57.
[vii] (2007) 7 SCC 363.
[viii] Raghunath Prashad Singh v. Deputy Commissioner of Partabgarh, (1927) 54 1. A. 126, 128.
[ix] Nazir Mohamed vs. J. Kamala, (Civil Appeal Nos. 2843-2844 of 2010).
[x] Chunilal V Mehta & Sons vs Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314.
[xi] Supra Note viii.
[xii] Pankaj Bhargava vs Mohinder Nath, (1991) 1 SCC 556.
ABOUT THE AUTHORS
Harshit Sharma has done his B.A., LL.B (Criminal Law Hons.), from National Law University, Jodhpur (2019) and he completed his Masters in Criminal Law in July 2020. He secured AIR-15 in CLAT PG (2019) and he has Qualified NTA NET (December 2019). Currently, he is preparing for his Delhi Judicial Services 2019 Interview and simultaneously working for his PhD enrolment. He can be reached at email@example.com.
Maryanka has done her B.A., LL.B (Hons.), from UPES, Dehradun and Masters in Corporate Law from National Law University, Jodhpur. Currently she is working as an Assistant Professor in School of Law, IMS Unison University, Dehradun. She has an avid interest in Legal Theory and International Law. She can be reached at: firstname.lastname@example.org.