This is the second part of a bipartite blog series. Read the first part here.
Judges must administer law according to the provisions of law. It is the bounden duty of judges to discern legislative intention in the process of adjudication. Justice administered according to individual’s whim, desire, inclination and notion of justice would lead to confusion, disorder and chaos. Indiscriminate and frequent interference under Section 100 C.P.C. in cases which are totally devoid of any substantial question of law is not only against the legislative intention but is also the main cause of huge pendency of second appeals in the High Courts leading to colossal delay in the administration of justice in civil cases in our country.[i]
Formulation of Question
A mere mention about the question having been formulated in the memorandum of appeal is not enough.” In a very recent case of Kunjumuhammed vs Mariyumma[ii], Apex Court held that:
“The Court ought to have formulated substantial question of law and proceeded with the arguments thereafter. A mere mention about the question having been formulated in the memorandum of appeal is not enough. That is not in accord with the settled law. It is possible that more than one question of law had been formulated in the appeal memo, as substantial question of law. The Court ought to advert to the question which it thinks appropriate to examine and then answer the same, as is mandated in terms of the settled legal position.”
In a previous case of Bokka Subba Rao vs. Kukkala Balakrishna[iii] court held that”
“It is now well settled by catena of decisions of this Court that the High Court in second appeal, before allowing the same, ought to have formulated the substantial questions of law and thereafter, to decide the same on consideration of such substantial questions of law.”
More recently in Sreedevi vs. Sarojam[iv], the Supreme Court had observed that it is obligatory for a High Court to frame substantial question of law in second appeal even if lower courts’ findings are perverse per se. It held that:
“Even on a fair reading of the judgment, we are of the considered opinion that the High Court proceeded to decide the Second Appeal without formulating any substantial question of law, which it ought to have done in view of the mandate of Section 100 of the Code of Civil Procedure, 1908 and the consistent view taken by this Court including in Hardeep Kaur Vs. Malkiat Kaur.[v] It was obligatory, to first formulate the appropriate substantial question of law and then deal with the same, after giving an opportunity of hearing to both sides.
However, in a judgment delivered last year Illoth Valappil Ambunhi (D) vs. Kunhambu Karanavan[vi], the Court observed that mere error in framing a question of law would not render a judgment in Second Appeal liable to be set aside, if it is found that a substantial question of law existed and such question has in fact been answered by the High Court. The question framed in the second appeal in the instant case by the High Court was “whether gift deed having been accepted on behalf of the donee could be revoked by the donor unilaterally?” Supreme Court said perhaps the question should have read whether the finding of the Trial Court with regard to non-acceptance of the deed of gift, confirmed in appeal, was vitiated by perversity and if it was so vitiated, whether the unilateral revocation of the deed, by the donor, can be sustained in law. After a careful reading of the judgment of the High Court under Appeal Apex Court held that it is absolutely clear that those are the questions which have, in effect and substance, been addressed. A mere error in framing a question of law would not render a judgment in Second Appeal liable to be set aside, if it is found that a substantial question of law existed and such substantial question of law has in fact been answered by the High Court as in this case.
No Dismissal on the grounds of Concurrent Findings
Supreme Court recently in Shiv Dayal vs State of Rajasthan[vii] held that a High Court cannot dismiss a second appeal merely on the ground that that there is a concurrent finding of two Courts (whether of dismissal or decreeing of the suit). Court also pointed out that any concurrent finding of the courts can be assailed in High Court if it is proved that such finding was:
- recorded de hors the pleadings or
- based on no evidence or
- based on misreading of material documentary evidence or
- recorded against any provision of law and lastly,
- the decision is one which no Judge acting judicially could reasonably have reached.
Limitations under Section 100 CPC
In Gurnam Singh v. Lehna Singh[viii], Supreme Court once again reminded the High Courts of the limitations under Section 100 CPC and said:
“Despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.”
The Court in this case further noticed that:
“While interfering with the judgment and order passed by the first Appellate Court, it appears that while upsetting the judgment and decree passed by the First Appellate Court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that High Court has not at all appreciated the fact that the High Court was deciding the Second Appeal under Section 100 of the CPC and not first appeal under Section 96 of the CPC.”
So it is very much clear that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal.
Himachal Pradesh High Court while following the mandate of Apex Court also held that “the scope of interference by the High Court in Second Appeal under Section 100 of the Code of Civil Procedure is only if the Court finds that there is substantial question of law involved in the appeal”.[ix]
Illustrative Cases of Substantial Question of Law
- Perversity in arriving at a factual finding by Courts below can give rise to a substantial question of law, attracting intervention of the High Court in a Second Appeal filed under Section 100 of the Code of Civil Procedure.[x]
- Debatable issue before the High Court which was not covered by settled principles of law and/or precedents.
- Controversy before the High Court with regard to interpretation or legal effect of any document nor any wrong application of a principle of law, in construing a document, or otherwise, which might have given rise to a question of law.
- Disregard or non-consideration of relevant evidence or taking into consideration irrelevant or inadmissible evidence.
- Placing onus of proof on wrong party.
- Disposal of appeal before disposing an application for additional evidence under Order 41 Rule 27.
Illustrative Cases of No Substantial Question of Law
- Concurrent findings of facts recorded by courts below.
- Where two views are reasonably possible.
- Where a new case is sought to be made out in second appeal.
- Where new plea is raised in appeal which is either based on fact, or on mixed question of law and fact or on mere question of law (not on substantial question of law).
- Where the question raised is too general or omnibus in nature.
- Where the High Court feels that reasoning of the first appellate court is not proper.
Conclusion- General Principles
Based on the discussion some general principles relating to Section 100 of the Code of Civil Procedure can be summarized as follows:
- An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
- The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
- A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
- The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where
- the courts below have ignored material evidence or acted on no evidence;
- the courts have drawn wrong inferences from proved facts by applying the law erroneously; or
- the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
So the primary cause of the accumulation of arrears of second appeal in the High Court is the laxity with which second appeals are admitted without serious scrutiny of the provisions of Section 100 C.P.C. It is the bounden duty of the High Court to entertain second appeal within the ambit and scope of Section 100 C.P.C. and in accordance with the precedents laid down by Apex Court.
[i] Gurdev Kaur & Ors. Vs Kaki & Ors., SLP (C) No. 20797 of 2003.
[ii] (Civil Appeal No. 2771 of 2020).
[iii] (2008) 3 SCC 99.
[iv] CIVIL APPEAL NO. 1302/2019.
[v] 2012 (4) SCC 344
[vi] CIVIL APPEAL NO. 1429 OF 2011.
[vii] CIVIL APPEAL No.7364 of 2000 and CIVIL APPEAL No.7365 of 2000.
[viii] 2019 SCC OnLine SC 374.
[ix] Satyapal Kashyap v. P.P.S. Chhatwal, 2019 SCC OnLine HP 1561
[x] Illoth Valappil Ambunhi (D) vs. Kunhambu Karanavan, CIVIL APPEAL NO. 1429 OF 2011.
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.