The Civil Procedure Code, 1908 under section 100 provides provision for Second Appeal. This appeal shall lie before Hon’ble High Court from every decree passed in appeal by any court subordinate to the High Court. There is no right to appeal unless statutes so provides. As per the statute, a condition precedent is to be satisfied before Hon’ble High Court in order to exercise its appellate jurisdiction. Exercise of the appellate jurisdiction without the fulfilment of the statutory mandate would be without jurisdiction and therefore a nullity.
Section 100 of CPC reads as under:
“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.”
Though High Court have appellate jurisdiction for second appeal but it cannot re-appreciate evidence or facts unless the case involves a substantial question of law. In Prabhudayal vs. Suwa lal, AIR 1994 Raj 149;it was held that question of fact cannot be allowed to be raised in the second appeal.
In Karnataka Board of Wakf vs Anjuman E Ismail Madris-un-Niswan, AIR 1999 SC 3067; Supreme Court held that the High Court, should not interfere with the concurrent finding of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower courts.
In Bismillah Begum (dead) by LRs vs. Rahmatullah Khan (dead) by LRs, AIR 1998 SC 970; it was head that the findings of the fact arrived by the court below are binding in second appeal. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, it was held that the question whether a finding of fact is against the weight of evidence does not project a question of law, much less a substantial question of law.
Substantial Question of Law:
The term substantial law is not defined under CPC but it was first interpreted by Supreme Court in the case of Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd, that the proper test for determining whether a question of law raised in the case is substantial would, in our opinion, 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 this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views.
In Santosh Hazari Vs Purushottam Tiwari, (2001) 3 SCC 179, It was observed that, Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis.
The scope of exercise of the jurisdiction by the High court in second appeal under 100 is limited to the substantial question of law. To be a substantial question of law it must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of parties before the court; Govindaraja vs. Mariamman, AIR 2005 SC 1008.
The Civil Procedure Code, 1908
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