SECOND APPEAL

A project submitted in partial fulfilment of the course CPC

WITH LIMITATAIONS ACT, 5th SEMESTER during the
academic year 2018-2019

SUBMITTED BY:
SHREYA SINHA
ROLL NO.- 1648
B.B.A. LL.B.

SUBMITTED TO:
Dr. MEETA MOHINI
FACULTY OF CPC WITH LIMITATAIONS ACT

SEPTEMBER, 2018
CHANAKYA NATIONAL LAW UNIVERSITY, NAYAYA
NAGAR, MEETHAPUR, PATNA-800001
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A. LL.B (Hons.) Project Report entitled
“SECOND APPEAL” submitted at Chanakya National Law University; Patna is an authentic
record of my work carried out under the supervision of Dr. Meeta Mohini. I have not
submitted this work elsewhere for any other degree or diploma. I am fully responsible for the
contents of my Project Report.

(Signature of the Candidate)

SHREYA SINHA
Chanakya National Law University, Patna

i
 ACKNOWLEDGEMENT

“IF YOU WANT TO WALK FAST GO ALONE

IF YOU WANT TO WALK FAR GO TOGETHER”
A project is a joint endeavour which is to be accomplished with utmost compassion, diligence
and with support of all. Gratitude is a noble response of one’s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my
heart to all those who have helped me to put these ideas, well above the level of simplicity
and into something concrete effectively and moreover on time.
This project would not have been completed without combined effort of my revered CPC
with Limitations Act teacher Dr. Meeta Mohoni whose support and guidance was the driving
force to successfully complete this project. I express my heartfelt gratitude to him. Thanks are
also due to my parents, family, siblings, my dear friends and all those who helped me in this
project in any way. Last but not the least; I would like to express my sincere gratitude to our
CPC teacher for providing us with such a golden opportunity to showcase our talents. Also
this project was instrumental in making me know more about Second Appeal. This project
played an important role in making me understand more about the constitutionality of the
bonded labour system abolition act and its constitutionality. It was truly an endeavour which
enabled me to embark on a journey which redefined my intelligentsia, induced my mind to
discover the intricacies involved in the competency of the people in second appeals.
Moreover, thanks to all those who helped me in any way be it words, presence,
Encouragement or blessings...

- Shreya Sinha
- 5th Semester
- B.BA LL.B

ii
 TABLE OF CONTENTS

Declaration…………………………………………………………………………………….i

Acknowledgement…………………………………………………………………………….ii

Table of Contents…………………………………………………………....……………….iii

Aims and Objectives……………………………………………………………………….…iv

Research Methodology......................................................................................................…...iv

1. Introduction …...................................................…………………………………….1-3

2. Scope of Section 100 and 103..............................................…............................….4-10

3. Substantial Question of Law.......................................................................……....11-14

4. Grounds of Second Appeal....................................................................…......…...15-16

5. Conclusion....................................................................................................................17

Bibliography……………………………...………………………….....………........………18

iii
 AIMS AND OBJECTIVES

The Aims and Objectives of this project are:

1. To study about the concept of Second Appeal in CPC.
2. To study the nature, scope and object of Second Appeal.
3. To study the grounds for Second Appeal.
4. To study the cases where second appeal does not lie.

RESEARCH METHODOLOGY

For this study, doctrinal research method was utilised. Various articles, e-articles, reports and
books from library were used extensively in framing all the data and figures in appropriate
form, essential for this study.
The method used in writing this research is primarily analytical.

iv
 INTRODUCTION

It is quite obvious that a person who is aggrieved from the court of first instance goes to the
first appeal and thereby the decision of superior court will be against one party and in favour
of the other. But what happens when the appellate court decides a case against a party. Then
that party would go for a second appeal. But that procedure is not as simple as it sounds and
requires a very important prerequisite which is such case to the second appeal that is High
Court must involve a substantial question of law.
The jurisprudential approach of the legislature behind this provision under Section 100 of the
Code of Civil Procedure, 1908 has been observed as it is necessary to provide for a stricter
and better scrutiny of second appeals as they should be made subject to special leave, instead
of giving an absolute right of appeal limiting it to a question of law.1
The provision of Section 100 reads as “Firstly, 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. Secondly, an
appeal may lie under this section from an appellate decree passed ex parte. Thirdly, in an
appeal under this section, the memorandum of appeal shall precisely state the substantial
question of law involved in the appeal. Fourthly, where the High Court is satisfied that a
substantial question of law is involved in any case, it shall formulate that question. Fifthly,
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 with
the proviso 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.”
Dealing with the substantial question of law, the term carries the most importance since it can
be said it’s a sole test to determine whether a case is appealable or not. The term is not been
defined in the Code itself but has been construed from the Constitution of India, 1950 and
other various statutes which in one way or other showers light on the substantial question of
law. It can be said that there is not hard and fast rule for determining a substantial question of

1
Law Commission’s Fifty-Fourth Report

1|Page
law, wherein the term “involves” from a close scrutiny of section confers those cases wherein
the question must arise in a case and it is necessary to decide it.2
A judgement aptly provides for the meaning of substantial question of law wherein it was
observed that “the proper test for determining whether a question 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…” It is further held that “if the question is 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, the question would not be a substantial question of law.”3
Therefore from the above test it can be determined which case involves a substantial question
of law and which does not, for instance, a question of admissibility of evidence or irrelevance
or inadmissibility of evidence or misinterpretation of material documents or recording any
finding without any evidence on record which deals with the Indian Evidence Act can be said
to be substantial questions of law. Whereas, cases that involves questions as to erroneous fact
findings or general questions or any fact finding by the first appeal or fact finding which is
drawn on evidence on record are considered to be questions which are nowhere close to the
substantial questions of law.
With the power to prefer the second appeal to the High Court there also arise certain duties
and obligations to be meted out along with. As it is quite apparent that the power of Second
appeal is not an inherent power of the High Court as it must be conferred upon it by certain
statute. Therefore, the foremost duty of the High Court can be derived from the content of
section 100 itself that the words “shall formulate the question” provides that it is duty of the
High Court to formulate a substantial question of law and that can be only done if the High
Court is satisfied with such question, which can be inferred as its power.
But there is also a saving clause in form of proviso under section 100(5) which provides that
on recording reasons the High Court can also entertain and decide a second appeal to finally
be heard even if such appeal involves a substantial question of law which is not even
formulated at the time of admission of appeal. Thereby, the High Court can also exercise its
judicial discretion of superiority.
It must be also kept in mind that the substantial question of law view must not prejudice to
the fact that even question of fact can be decided by the High Court since there is also a

2
SBI v. S.N. Goyal (2008) 8 SCC 92
3
Chunilal V. Mehta and Sons v. Century Spg. And Mgf. Company Limited AIR 1962 SC 1314

2|Page
provision under Section 103 of the Code which provides that a High Court may decide
question of fact during second appeal if such issue has not been determined either by the trial
court or by the appellate court or by both or has been wrongly determined by such court or
courts by reason of their decisions on a substantial question of law.
As a concluding remark, it can be said that the powers of High court are repository and the
formulation of substantial question of law may be done away with but a duty is henceforth
conferred upon the appellant to precisely state in memorandum of appeal the substantial
question of law in the appeal.

3|Page
 SCOPE OF SECTION 100 AND 103

The Supreme Court, speaking through Justice B.S. Chauhan, has in Municipal Committee,
Hoshiarpur v. Punjab State Electricity Board4, examined the scope of S. 100 and 103 of the
Code of Civil Procedure, 1908 and the law relating to Second Appeals against decrees. The
Supreme Court has examined various judicial precedents on the subject and held as under;
 In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors5, this Court held as
under:- "It has to be kept in mind that the right of appeal is neither a natural nor an
inherent right attached to the litigation. Being a substantive statutory right it has to be
regulated in accordance with law in force at the relevant time. The conditions
mentioned in the section must be strictly fulfilled before an appeal can be maintained
and no Court has the power to add to or enlarge those grounds. The appeal cannot be
decided on merit on merely equitable grounds."
Further, there can be no quarrel that the right of appeal/revision cannot be absolute and the
legislature can impose conditions for maintaining the same. In Vijay Prakash D. Mehta &
Jawahar D. Mehta v. Collector of Customs (Preventive), Bombay6, this Court held as under :-
"Right to appeal is neither an absolute right nor an ingredient of natural justice, the principles
of which must be followed in all judicial or quasi- judicial adjudications. The right to appeal
is a statutory right and it can be circumscribed by the conditions in the grant ..............The
purpose of the Section is to act in terrorem to make the people comply with the provisions of
law."
A similar view has been reiterated by this Court in Anant Mills Co. Ltd. v. State of Gujarat7;
and Shyam Kishore & Ors. v Municipal Corporation of Delhi & Anr8. A Constitution Bench
of this court in Nandlal & Anr. v. State of Haryana9, held that the "right of appeal is a
creature of statute and there is no reason why the legislature, while granting the right, cannot
impose conditions for the exercise of such right so long as the conditions are not so onerous
as to amount to unreasonable restrictions rendering the right almost illusory".

4
AIR 1975 SC 1234
5
AIR 1999 SC 2213
6
AIR 1988 SC 2010
7
AIR1975 SC 1234
8
AIR 1992 SC 2279
9
AIR 1980 SC 2097

4|Page
  In Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the City of
Ahmedabad & Ors10, this Court held that the right of appeal though statutory, can be
conditional/qualified and such a law cannot be held to be violative of Article 14 of the
Constitution. An appeal cannot be filed unless so provided for under the statute and
when a law authorises filing of an appeal, it can impose conditions as well.
Thus, it is evident from the above that the right to appeal is a creation of Statute and it cannot
be created by acquiescence of the parties or by the order of the Court. Jurisdiction cannot be
conferred by mere acceptance, acquiescence, consent or by any other means as it can be
conferred only by the legislature and conferring a Court or Authority with jurisdiction, is a
legislative function. Thus, being a substantive statutory right, it has to be regulated in
accordance with the law in force, ensuring full compliance of the conditions mentioned in the
provision that creates it. Therefore, the Court has no power to enlarge the scope of those
grounds mentioned in the statutory provisions. A second appeal cannot be decided merely on
equitable grounds as it lies only on a substantial question of law, which is something distinct
from a substantial question of fact. The Court cannot entertain a second appeal unless a
substantial question of law is involved, as the second appeal does not lie on the ground of
erroneous findings of fact based on an appreciation of the relevant evidence. The existence of
a substantial question of law is a condition precedent for entertaining the second appeal, on
failure to do so, the judgment cannot be maintained. The existence of a substantial question
of law is a sine-qua-non for the exercise of jurisdiction under the provisions of Section 100
C.P.C. It is the obligation on the Court to further the clear intent of the Legislature and not to
frustrate it by ignoring the same. (Vide: Santosh Hazari v. Purshottam Tiwari (dead) by
LRs.11; Sarjas Rai & Ors. v. Bakshi Inderjeet Singh12; Manicka Poosali (Deceased by L.Rs.)
& Ors. v. Anjalai Ammal & Anr13; Mst. Sugani v. Rameshwar Das & Anr.14;Hero Vinoth
(Minor) v. Seshammal15; P. Chandrasekharan & Ors. v. S. Kanakarajan & Ors16; Kashmir
Singh v. Harnam Singh & Anr., AIR 2008 SC 1749; V. Ramaswamy v. Ramachandran &
Anr17; and Bhag Singh v. Jaskirat Singh & Ors.18)

10
(1999) 4 SCC 468
11
AIR 2001 SC 965
12
(2005) 1 SCC 598
13
AIR 2005 SC 1777
14
AIR 2006 SC 2172
15
AIR 2006 SC 2234
16
(2007) 5 SCC 669
17
(2009) 14 SCC 216
18
(2010) 2 SCC 250

5|Page
  In Mahindra & Mahindra Ltd. v. Union of India & Anr19, this Court observed:
"..... It is not every question of law that could be permitted to be raised in the second appeal.
The parameters within which a new legal plea could be permitted to be raised, are
specifically stated in Sub-section (5) of Section 100. Under the proviso, the Court should be
`satisfied' that the case involves a substantial question of law and not a mere question of law.
The reason for permitting the substantial question of law to be raised, should be recorded by
the Court. It is implicit therefrom that on compliance of the above, the opposite party should
be afforded a fair or proper opportunity to meet the same. It is not any legal plea that would
be alleged at a stage of second appeal. It should be a substantial question of law. The
reasons for permitting the plea to be raised should also be recorded."
 In Madamanchi Ramappa & Anr. v. Muthaluru Bojjappa20, this Court observed:
".........Therefore, whenever this Court is satisfied that in dealing with a second appeal, the
High Court has, either unwittingly and in a casual manner, or deliberately as in this
case, contravened the limits prescribed by Section 100, it becomes the duty of this Court to
intervene and give effect to the said provisions. It may be that in some cases, the High Court
dealing with the second appeal is inclined to take the view that what it regards to be justice
or equity of the case has not been served by the findings of fact recorded by courts of fact;
but on such occasions it is necessary to remember that what is administered in courts is
justice according to law and considerations of fair play and equity however important they
may be, must yield to clear and express provisions of the law. If in reaching its decisions in
second appeals, the High Court contravenes the express provisions of Section 100, it would
inevitably introduce in such decisions an element of disconcerting unpredictability which is
usually associated with gambling; and that is a reproach which judicial process must
constantly and scrupulously endeavour to avoid."
 In Jai Singh v. Shakuntala21, this Court held as under:
"....it is only in very exceptional cases and on extreme perversity that the authority to examine
the same in extenso stands permissible - it is a rarity rather than a regularity and thus it can
be safely concluded that while there is no prohibition as such, but the power to scrutiny can
only be had in very exceptional circumstances and upon proper circumspection."

19
AIR 1979 SC 798
20
AIR 1963 SC 1633
21
AIR 2002 SC 1428

6|Page
  While dealing with the issue, this Court in Leela Soni & Ors. v. Rajesh Goyal &
Ors22, observed as under:
There can be no doubt that the jurisdiction of the High Court under Section 100 of the Code
of Civil Procedure (CPC) is confined to the framing of substantial questions of law involved
in the second appeal and to decide the same. Section 101 CPC provides that no second
appeal shall lie except on the grounds mentioned in Section 100 CPC. Thus it is clear that no
second appeal can be entertained by the High Court on questions of fact, much less can it
interfere in the findings of fact recorded by the lower appellate court. This is so, not only
when it is possible for the High Court to take a different view of the matter but also when the
High Court finds that conclusions on questions of fact recorded by the first appellate court
are erroneous.
 The section, noted above, authorises the High Court to determine any issue which is
necessary for the disposal of the second appeal provided the evidence on record is
sufficient, in any of the following two situations: (1) when that issue has not been
determined both by the trial court as well as the lower appellate court or by the lower
appellate court; or (2) when both the trial court as well as the appellate court or the
lower appellate court have wrongly determined any issue on a substantial question of
law which can properly be the subject-matter of second appeal under Section 100
CPC."
 In Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors.23, the question arose as to
whether the compromise decree had been obtained by fraud. This Court held that
though it is a question of fact, but because none of the courts below had pointedly
addressed the question of whether the compromise in the case was obtained by
perpetrating fraud on the court, the High Court was justified in exercising its powers
under Section 103 C.P.C. to go into the question.
 In Shri Bhagwan Sharma v. Smt. Bani Ghosh24, this Court held that in case the High
Court exercises its jurisdiction under Section 103 C.P.C., in view of the fact that the
findings of fact recorded by the courts below stood vitiated on account of non-
consideration of additional evidence of a vital nature, the Court may itself finally
decide the case in accordance with Section 103(b) C.P.C. and the Court must hear the
parties fully with reference to the entire evidence on record with relevance to the

22
(2001) 7 SCC 494
23
AIR 1978 SC 1329
24
AIR 1993 SC 398

7|Page
 question after giving notice to all the parties. The Court further held as under: ".....The
grounds which may be available in support of a plea that the finding of fact by the
court below is vitiated in law, does not by itself lead to the further conclusion that a
contrary finding has to be finally arrived at on the disputed issue. On a re-appraisal of
the entire evidence the ultimate conclusion may go in favour of either party and it
cannot be pre-judged, as has been done in the impugned judgment."
 In Kulwant Kaur & Ors. v. Gurdial Singh Mann (dead) by LRs. & Ors.25, this Court
observed as under : "Admittedly, Section 100 has introduced a definite restriction on
to the exercise of jurisdiction in a second appeal so far as the High Court
is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act,
1976 introduced such an embargo for such definite objectives and since we are not
required to further probe on that score, we are not detailing out, but the fact remains
that while it is true that in a second appeal a finding of fact, even if erroneous, will
generally not be disturbed but where it is found that the findings stand vitiated on
wrong test and on the basis of assumptions and conjectures and resultantly there is an
element of perversity involved therein, the High Court in our view will be within its
jurisdiction to deal with the issue. This is, however, only in the event such a fact is
brought to light by the High Court explicitly and the judgment should also be
categorical as to the issue of perversity vis-`-vis the concept of justice. Needless to
say however, that perversity itself is a substantial question worth adjudication -- what
is required is a categorical finding on the part of the High Court as to perversity.
The requirements stand specified in Section 103 and nothing short of it will bring it within
the ambit of Section 100 since the issue of perversity will also come within the ambit of
substantial question of law as noticed above. The legality of finding of fact cannot but be
termed to be a question of law. We reiterate however, that there must be a definite finding to
that effect in the judgment of the High Court so as to make it evident that Section 100 of the
Code stands complied with."
 Powers under Section 103 C.P.C. can be exercised by the High Court only if the core
issue involved in the case is not decided by the trial court or the appellate court and
the relevant material is available on record to adjudicate upon the said issue.
 Before powers under Section 103 C.P.C. can be exercised by the High Court in a
second appeal, the following conditions must be fulfilled:

25
AIR 2001 SC 1273

8|Page
 (i) Determination of an issue must be necessary for the disposal of appeal;
(ii) The evidence on record must be sufficient to decide such issue; and
(iii) (a) Such issue should not have been determined either by the trial court, or by the
appellate court or by both; or
(b) such issue should have been wrongly determined either by trial court, or by the
appellate court, or by both by reason of a decision on substantial question of law.
If the above conditions are not fulfilled, the High Court cannot exercise its powers under
Section 103 CPC.
Thus, it is evident that Section 103 C.P.C. is not an exception to Section 100 C.P.C. nor is it
meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103
C.P.C. in service, the High Court has to record a finding that it had to exercise such power,
because it found that finding(s) of fact recorded by the court(s) below stood vitiated because
of perversity. More so, such power can be exercised only in exceptional circumstances and
with circumspection, where the core question involved in the case has not been decided by
the court(s) below.
 There is no prohibition on entertaining a second appeal even on a question of fact
provided the Court is satisfied that the findings of fact recorded by the courts below
stood vitiated by non-consideration of relevant evidence or by showing an erroneous
approach to the matter i.e. that the findings of fact are found to be perverse. But the
High Court cannot interfere with the concurrent findings of fact in a routine and
casual manner by substituting its subjective satisfaction in place of that of the lower
courts. (Vide: Jagdish Singh v. Natthu Singh26; Karnataka Board of Wakf v.
Anjuman- E-Ismail Madris-Un-Niswan27; and Dinesh Kumar v. Yusuf Ali28).
 If a finding of fact is arrived at by ignoring or excluding relevant material or by taking
into consideration irrelevant material or if the finding so outrageously defies logic as
to suffer from the vice of irrationality incurring the blame of being perverse, then the
finding is rendered infirm in the eyes of law. If the findings of the Court are based on
no evidence or evidence which is thoroughly unreliable or evidence that suffers from
the vice of procedural irregularity or the findings are such that no reasonable person
would have arrived at those findings, then the findings may be said to be perverse.
Further if the findings are either ipse dixit of the Court or based on conjecture and

26
AIR 1992 SC 1604
27
AIR 1999 SC 3067
28
AIR 2010 SC 2679

9|Page
 surmises, the judgment suffers from the additional infirmity of non-application of
mind and thus, stands vitiated. (Vide: Bharatha Matha & Anr. v. R. Vijaya
Renganathan & Ors.29)
 In view of above, the law on the issue can be summarised to the effect that a second
appeal lies only on a substantial question of law and it is necessary to formulate a
substantial question of law before the second appeal is decided.
The issue of perversity itself is a substantial question of law and, therefore, Section 103
C.P.C. can be held to be supplementary to Section 100 C.P.C., and does not supplant it
altogether. Reading it otherwise, would render the provisions of Section 100 C.P.C.
redundant. It is only an issue that involves a substantial question of law, that can be
adjudicated upon by the High Court itself instead of remanding the case to the court below,
provided there is sufficient evidence on record to adjudicate upon the said issue and other
conditions mentioned therein stand fulfilled. Thus, the object of the Section is to avoid
remand and adjudicate the issue if the finding(s) of fact recorded by the court(s) below are
found to be perverse. The court is under an obligation to give notice to all the parties
concerned for adjudication of the said issue and decide the same after giving them full
opportunity of hearing.

29
AIR 2010 SC 2679

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 SUBSTANTIAL QUESTION OF LAW

Though the expression "substantial question of law" has not been defined in any of the Act or
in any of the statutes where this expression appears, e.g. section 100 of the Code of Civil
Procedure. The true meaning and connotation of this expression is now well settled by
various judicial pronouncements. It was observed by the Supreme Court in Sir Chunilal V.
Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd.30 that “a question of law would be a
substantial question of law if it directly or indirectly affects the rights of parties and/or there
is some doubt or difference of opinion on the issue". But “if the question is settled by the
Apex Court or the general principles to be applied in determining the question are well-
settled, mere application of it to a particular set of facts would not constitute a substantial
question of law" – Krishna Kumar Aggarwal v. Assessing Officer.31
Section 100 of CPC deals with "Second Appeal" moreover it includes the Substantial
Question of Law as well. The proviso reads as follows:
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.
An appeal may lie under this section from an appellate decree passed ex parte.
In an appeal under this Section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
Where the High Court is satisfied that a substantial question of law is involved in any case, it
shall formulate that question.
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 takes away or abridges the power of the question of law, not
formulated by it, if it is satisfied that the case involves such question."32

30
1962 AIR 1314, 1962 (3) Suppl. SCR 549
31
Misc. App. No. 495 (Del) of 2009.
32
Teacher, Law. (November 2013). Judicial Interpretation of Substantial Questionable Law. Retrieved from
https://www.lawteacher.net/free-law-essays/administrative-law/judicial-interpretation-of-substantial-
questionable-law-administrative-law-essay.php?vref=1

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Judicial Analysis of Substantial Question of Law
Second appeals can arise before the High Courts only on substantial question of law as
certified by the courts. The Supreme Court had regretted that in a number of cases, no efforts
were being made to differentiate between the ``question of law'' and ``substantial question of
law''. A right of appeal is neither natural nor an inherent right attached to the litigation. It is a
substantive statutory right to be regulated in accordance with law.
A question of law will be a substantial of law if it directly and substantially affects the rights
of the parties. In order to be "substantial" it must be such that there may be some doubt or
difference of opinion or there is room for difference of opinion. If the law is well-settled by
the Supreme Court, the mere application of it to particular facts would not constitute a
substantial question of law (M/s Neek Ram Sharma & Co. vs Income Tax Appellate Tribunal
and others33).
The Delhi High Court pointed out that the term ``substantial question of law'' has not been
defined. But it has acquired a definite connotation through a catena of judicial
pronouncements.
Test laid down in Sir Chunilal V. Mehta and Sons Ltd. v Century Spinning and
Manufacturing Co. Ltd.34 to determine whether a substantial question of law is involved are:
1. Whether directly or indirectly it affects the substantial rights of the parties;
2. Whether the question is of general public importance;
3. Whether it is an open question in the sense that the issue has not been settled by
pronouncement of the highest court in the land;
4. The issue is not free from difficulty; or
5. It calls for a discussion for alternative view.
In Hero Vinoth v. Seshammal35, it was laid down that 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 not clear, either on account of express provisions of law or binding
precedents,

33
2003 262 ITR 692 J K
34
Supra Note 30
35
Supra Note 15

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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. If the question
is 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, the question would not be a substantial question of law (Sir
Chunilal V Mehta & Sons Ltd v Century Spinning and Manufacturing Co Ltd36).
Court affirmed in Ishwar Dass Jain v. Sohan Lal37, that:
"Now under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court
to formulate a substantial question of law and it is not permissible to reverse the doing so."
However for a second time in Roop Singh v. Ram Singh38, this Court has expressed that the
jurisdiction of a High Court is confined to appeals involving substantial question of law. SC
held that:
“It is to be reiterated that under Section 100 CPC of the High Court to entertain a second
appeal is confined only to such appeals which involve a substantial question of law and it
does not confer any jurisdiction on the High Court to interfere with pure questions of fact
while exercising its jurisdiction under section 100 CPC."
Subsequent to the above observation SC affirmed that "No question of law much less any
substantial question of law (Commissioner of Income Tax vs. P. Mohanakala 39). Except
“where a point of law has not been pleaded or is found to be arising between the parties in the
absence of any factual format, a litigant should not be allowed to raise that question as a
substantial question of law in second appeal. The mere appreciation of the facts, the
documentary evidence or the meaning of entries and the contents of the document cannot be
held to be raising a substantial question of law."(Kondiba Dagadu Kadam v Savitribai
Sopangujar & Ors40) Furthermore “No question of law much less any substantial question,
was involved in the second appeal requiring interference by the High Court in exercise of its

36
Supra Note 30
37
AIR 2000 SC 426
38
Second Appeal No.255 of 1977
39
CIVIL APPEAL NO. 2540 OF 2007
40
Supra Note 5

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jurisdiction under s 100 of the Code of Civil Procedure." (Karuppiah Ravichandran v GDS
Engineering Pte Ltd and Another41)
The Supreme Court held that the High Court may decline to answer any question of law
which is purely academic and the answer to which would have no bearing on any actual right
or liability of the taxpayer, or if the answer would not dispose of the real questions in issue
between the parties, or if the question is unnecessary or irrelevant. (CIT v Anusuya Devi42)
The Delhi High Court quoted Lord Simonds to point out that even a pure finding of fact may
be set aside by the court if it appears that the Commissioner had acted without any evidence
or on a view of the facts which could not be reasonably entertained. The court may also
intervene if it appears that no person acting judicially, and properly instructed as to the
relevant law, could have come to the determination under appeal.
The appeal is required to be heard only on the question so formulated includes Substantial Q
of law. The Court found that, in a number of cases, no efforts are made to differentiate
between the “question of law" and “substantial question of law". A right of appeal is neither
natural nor an inherent right attached to the litigation. Being a substantive statutory right, it
has to be regulated in accordance with the law in force at the relevant time. In Ishwar Dass
Jain v. Sohan Lal43 this Court in, has stated that, “Now under Section 100 CPC, after the
1976 Amendment, it is essential for the High Court to formulate a substantial question of law
and it is not permissible to reverse the judgment of the first appellate Court without doing
so."
Yet again in Roop Singh v. Ram Singh44 this Court has expressed that the jurisdiction of a
High Court is confined to appeals involving substantial question of law of the said judgment
reads: “It is to be reiterated that under section 100 CPC jurisdiction of the High Court to
entertain a second appeal is confined only to such appeals which involve a substantial
question of law and it does not confer any jurisdiction on the High Court to interfere with
pure questions of fact while exercising its jurisdiction under section 100 CPC."
The position has been reiterated in Kanahaiyalal and Ors. v. Anupkumar and Ors45 and Ram
Sakhi Devi (Smt.) v. Chhatra Devi and Others46.

41
[2009] 3 SLR 1028
42
1968 AIR 779 1968 SCR (2) 466
43
Supra Note 37
44
Supra Note 38
45
(2003 (1) SCC 430)
46
(2005 (6) SCC 181)

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 GROUNDS OF SECOND APPEAL

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. – S. 100(1)
An appeal may lie under S. 100 from an appellate decree passed ex parte. – S. 100(2)
In an appeal under S. 100, the memorandum of appeal shall precisely state the substantial
question of law involved in the appeal. – S. 100(3)
Where the High Court is satisfied that a substantial question of law is involved in any case, it
shall formulate that question. – S. 100(4)
As per Section 100-A second appeal does not lie in certain cases. Notwithstanding anything
contained in any Letters Patent for any High Court, or in any instrument having the force of
law for the time being in force, where any appeal from an original or appellate decree or
order is heard and decided by single Judge of a High Court, no further appeal shall lie from
the judgment and decree of such single Judge.
Then, Section 102 provides for the cases where no second appeal lies. No second appeal shall
lie from any decree, when the subject-matter of the original suit is for recovery of money not
exceeding twenty-five thousand rupees.
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.
But 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. – S. 100(5)
No second appeal shall lie except on the grounds! Mentioned in S. 100, C.P.C.
As a general rule a second appeal lies on a substantial question of law and this section
expressly bars a second appeal on questions- of fact. There is no jurisdiction to entertain a
second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable
the error may seem to be.
It is now well settled that the appellate court should not interfere with the finding of the trial
court unless it is unsound, perverse or based on grounds which are unsatisfactory by reason of
material inconsistencies, or inaccuracies.

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The appellate court should not lightly j interfere with it merely because it takes a different
view of the evidence. [Fakir v. Nakhi Dai47].
Where the finding of the court on facts are vitiated by non-consideration of relevant evidence
or by essentially erroneous approach to the matter, the High Court is not precluded from
interfering, 1992 (1) S.C.J. 36. (Nalini v. Padmanabhan Krishnan48).
An appellate court cannot partly admit and partly reject the appeal under S. 100 or S. 101,
C.P.C. It must either admit the appeal wholly or reject the same wholly. [Ramji Bhagala v.
Krishnarao Krirao Bagra49].
In any second appeal, the High Court may, if the evidence on the record is sufficient,
determine any issue necessary for the disposal of the appeal—
(a) Which has not been determined by the lower appellate court or both the court of first
instance and the lower appellate court, or
(b) Which has been wrongly determined by such court or courts by reason of a decision
on such question of law as is referred to in Section 100. (S. 103).

47
1975 (1) C.W.R. 218
48
A.I.R. 1994 Kerala, 14
49
(1982) S.C.C. 433

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 CONCLUSION

The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an
application or petition to appeal higher Court for are consideration of the decision of appeal
lower court. It is appeal proceeding for review to be carried out by appeal higher authority of
appeal decision given by appeal lower one. In appeal is appeal creature of statute and right to
appeal is neither an inherent nor natural right.
Appeal person aggrieved by appeal decree is not entitled as or right to appeal from decree.
The right to appeal must be given by statute. Section 9 confers on appeal litigant,
independently of any statute, appeal right to institute appeal suit of civil nature in appeal
court of law. So he has appeal right to apply for execution of appeal decree passed in his
favour, but he has no right to appeal from appeal decree or order made against him, unless the
right is clearly conferred by statute. Section 96 of the Code gives appeal right to litigant to
appeal from an original decree. Section 100 gives him appeal right to appeal from an
appellate decree in certain cases. Section 109 gives him right to appeal to the Supreme Court
in certain cases. Section 104 gives him right to appeal from orders as distinguished from
decrees.
As soon as judgment is pronounced against party, right to appeal arises. Right to appeal
doesn’t arise when adverse decision is given, but on the day suit is instituted i.e. proceedings
commenced, right to appeal get conferred. Thus, it can be said the Right to appeal is appeal
substantive right vested in parties from the date suit is instituted.
To conclude that appeal is a substantive right, and it is a matter inter parties. The question as
to whether the appeal is competent or not can only be decided by the court hearing the appeal.
Appeal may be filed against original or appellate decree passed by a court subordinate to
High Court. Appeal only lies against a decree and not against Judgment. The right of appeal
is a creation of statute.

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 BIBLIOGRAPHY

Statutes
1. The Code of Civil Procedure, 1908

Books
1. Justice Takwani, CK; Civil Procedure (CPC) with Limitation Act, 1963; (Eastern
Book Co. (EBC); 2016 edition 2016)
2. Sir Mulla, Dinshaw Fardunji; Mulla’s the Code of Civil Procedure; (Lexis Nexis;
Nineteenth edition 18 July 2017)
3. Jain, MP; The Code Of Civil Procedure-Incorporating The Commercial Courts,
Commercial Division And Commercial Appellate Division Of High Courts Act, 2015
As Applicable To Commercial Disputes; (Lexis Nexis; First edition 26 August 2016)
4. Dr. Rao, Rega Surya; Lectures on the Code of Civil Procedure and The Limitation
Act; (Asia Law House; 1ST edition 2016)

Websites
1. http://lawtimesjournal.in/second-appeal/
2. https://www.lawteacher.net/free-law-essays/administrative-law/judicial-interpretation-
of-substantial-questionable-law-administrative-law-essay.php#ftn1
3. http://www.advocatekhoj.com/library/lawareas/appeal/secondappeal.php?Title=Introd
uction&STitle=Second%20appeal
4. http://www.shareyouressays.com/knowledge/on-what-grounds-a-second-appeal-lies-
and-to-what-court-in-india/111406
5. http://www.legalblog.in/2011/01/second-appeal-under-code-of-civil.html
6. http://lawtimesjournal.in/appeal-high-court/

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