Satisfaction on a substantial question
A second appeal lies to the High Court (HC) from every decree passed in appeal by any subordinate court if the HC is satisfied that the case involves a substantial question of law. If satisfied the HC shall formulate that question. The Memorandum of Appeal shall state the substantial question of law proposed.
The admission order in second appeal must speak of the substantial question of law to be notified to the respondent so as to enable him to argue that it is not a substantial question.
The HC is not, however, prevented from hearing any other question of law involved in it, even if it has not been formulated.
Appeal is a statutory right
An appeal is not a matter of right. The right of appeal is conferred by statute. The right to second appeal is also a specific right conferred by the statute. That can only be exercised under the statutory stipulations relating to it.
When statute confers a limited right of appeal in second appeal, the court cannot expand its scope but has to confine to it. Therefore, it is not open for the High Court to reagitate facts or re-analyse or re-appreciate evidence, in a Second Appeal.
An appeal on a question of law means an appeal in which the question for argument and determination of what the true rule or law on a certain matter.
Section 100 CPC is the statutory basis
The Section 100 of the Civil Procedure Code (CPC) is the legal provision that restricts the right of second appeal, to only those cases, where a substantial question of law is involved. The existence of a substantial question of law is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC.
The second appeal is like SLP to the SC where all the processes of adjudication have made a complete round. However, the scope of appeal to the SC and to the HC cannot be equated. The former must be one decided by the SC and must be of general importance but in the latter, there is not such restriction.
What is a question of law or fact?
All questions a court is required to answer in a proceeding is either a question of law or question of fact.
Question of law: A question which the court is bound to answer in accordance with a rule or law or binding precedent is a question of law. A question as to what the law is also a question of law. A question that comes to the court for the first time as to the meaning of an ambiguous statutory provision is a question of law. If conclusion drawn on the facts in the case is wrong it is a question of law. The proper legal effect of a proved fact is necessarily a question of law.
Question of fact: A question of fact is the one that is capable of proof and subject of evidence adduced. That means if one can prove anything by adducing evidence that is a question of fact. Any question not determined by a rule of law is a question of fact. Any question except a question as to what the law is a question of fact.
Practical examples: Whether the accused has committed the criminal act of theft with which he is charged by matching the facts of his action and the ingredients of theft is a question of fact, whereas whether he should be punished with imprisonment or fine only is a question of judicial discretion or of a matter of right and hence is a question of law.
Similarly, whether an agreement has been made between two parties is a question of fact whereas such an agreement constitute the legal relation of partnership is a question of law.
When a question of law becomes substantial?
The word substantial, as qualifying ‘question of law”, means of having substance, essential, real, of sound worth, important or considerable.
When a question of law is fairly arguable, where there is room for difference of opinion on it or where the court deals with that question at some length, and discuss alternative views, 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.
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.
A wrong interpretation of a document is a substantial question of law and a good case of interference in second appeal.
The question must be substantial
The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. If a question of law has a material bearing on the decision of the case and it will affect the rights of parties to the suit, then it 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 it involves a debatable legal issue. A substantial question of law is a question on which there is scope of debate and there is conflict of opinion.
In a contrary situation also, a substantial question of law will arise. It arises where the legal position is clear on account of express provisions of law or of binding precedents, but the court below decides 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.
Inference of fact is a question of fact
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 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.
A plea of jurisdiction can be raised even in the second appeal, as a decree without jurisdiction is a nullity. However, determination of limitation is not a substantial question of law.
SC enunciates principles on substantial question
The principles for deciding when a question of law becomes a substantial question of law, have been enunciated by a Constitution Bench of the Supreme Court (SC) in Sir Chunilal v. Mehta & Sons Ltd. v Century Spg. & Mfg. Co. Ltd.
The SC holds that the proper test for determining whether a question of law 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 and if so whether it is either an open question in the sense that it is not finally settled by the SC or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views.
If the question is already 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, then the question would not be a substantial question of law.
Pleadings must lay down the foundation
Whether a question of law is a substantial one and whether such a question is involved in the case or not, would depend on the facts and circumstances of each case.
Therefore, to be a question of law in a 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 the court of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.
Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, then a second appeal is not maintainable.
No finding of fact in second appeal
In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law. Finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect.
An entirely new point, raised for the first time, before the High Court, cannot be treated as a question involved in the case, unless it goes to the root of the matter.
The decision of the court of appeal remains final as regards facts. However, Section 100 CPC does not impose a blanket restriction against reappreciation of the evidence where the findings of the first appeal court is perverse, inadequate and violative of natural justice. The HC can interfere with the findings of facts of the courts below when there is illegality, manifest perversity or misconstruction.
Further reading
- Sir Chunilal v. Mehta & Sons Ltd. v Century Spg. & Mfg. Co. Ltd
- Sarkar, A K: Summary or Salmond’s Jurisprudence. Gurgaon, Lexis Nexis, 2010.
