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DR.

RAM MANOHAR LOHIYA


NATIONAL LAW UNIVERSITY

FINAL DRAFT :- CODE OF CIVIL PROCEDURE


TOPIC:-Sec 100 of Civil Procedure Code: Substantial Question of
Law

SUBMITTED TO- SUBMITTED BY-

MRS.NEETU SINGH ABHISHT HELA


ASSNT.PROF. OF LAW VI SEMESTER
RMLNLU SECTION-A
ROLL NO.-07

TABLE OF CONTENT
Introduction

Nature and Scope

Sec 100 of Civil Procedure Code,1908

Substantial Question of law through Judicial Pronouncements

Case Studies

Powers of appellate courts and substantial question of law in Second Appeal

Conclusion

Bibliography

INTRODUCTION
No one has got a fundamental right to file an appeal. An appeal is a creature of the statute and can be
filed by a person only in case the law provides for the same. The High Court has been conferred with the
Appellate jurisdiction by many enactments. As per Section 100 of the Code of Civil Procedure, an
aggrieved party can file an appeal 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. Section 100 of the Code of Civil Procedure 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 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 he case involves such question. The substantial question of law need
not be ejusdem genris and this expression confers wide discretion on the Appellate Court to admit
evidence when the ends of justice require it. The Honble H.P. High Court in Nirmala V/s Hari Singh AIR
2001 H.P.1, has held that in the Second Appeal, findings of fact can be interfered with only if relevant
material is not considered or a finding is recorded on an inadmissible evidence.

Nature and Scope


A High Court can entertain a second appeal provided that it is satisfied that it involves a substantial
question of law.1 Second appeals would lie in cases which involve substantial questions of law. The word
'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to
refer only to questions of law of general importance, but refers to impact or effect of the question of law
on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial
questions of law of general importance, but also substantial question of law arising in a case as between
the parties. In the context of Section 100 CPC, any question of law which affects the final decision in a
case is a substantial question of law as between the parties. A question of law which arises incidentally or
collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there
is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it
cannot be said that the case involves a substantial question of law. It is said that a substantial question of
law arises when a question of law, which is not finally settled by this Court (or by the concerned High
Court so far as the State is concerned), arises for consideration in the case. But this statement has to be
understood in the correct perspective. Where there is a clear enunciation of law and the lower court has
followed or rightly applied such clear enunciation of law, obviously the case will not be considered as
giving rise to a substantial question of law, even if the question of law may be one of general importance.
On the other hand, if there is a clear enunciation of law by this Court (or by the concerned High Court),
but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the
law as declared or enunciated by this Court (or the concerned High Court) would have led to a different
decision, the appeal would involve a substantial question of law as between the parties. Even where there
is an enunciation of law by this Court (or the concerned High Court) and the same has been followed by
the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs
reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent
conflict between two view points, it can be said that a substantial question of law arises for consideration.
There cannot, therefore, be a strait-jacket definition as to when a substantial question of law arises in a
case. Be that as it may.2 (i) The scope of exercise of the jurisdiction by the High Court in second appeal
under section 100 is limited to the substantial question of law. To be a substantial question of law 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 v. Mariamman, AIR
2005 SC 1008. (ii) The High Court was not justified in setting aside the concurrent finding of fact on sub-
letting and nuisance without formulating any substantial question of law; Hari Singh v. Kanhaiya Lal,
AIR 1999 SC 3325.
1 Sec 100(1) 2 SBI Vs. SN Goyal AIR2008SC2594 (iii) The High Court, in second appeal is not justified in
setting aside a mixed question of law and fact; Ram Kumar Agarwal v. Thawar Dass (dead) by LR, AIR
1999 SC 3248. (iv) 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; Karnataka Board of
Wakf v. Anjuman-E-Ismail Madris-un-Niswan, AIR 1999 SC 3067. (v) Where the first appellate court
has assumed jurisdiction which did not vest in it, the same can be adjudicated in second appeal, treating
as substantial question of law; Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, AIR 1999 SC 2213.
(vi) The findings of fact arrived by the courts below are binding in second appeal; Smt. Bismillah Begum
(dead) by LRs v. Rahmatullah Khan (dead) by LRs, AIR 1998 SC 970. (vii) Conclusion about limitation
is a finding of fact and is not open for interference in the second appeal; Smt. Saraswatidevi v.
Krishnaram Baldeo Bank Limited, AIR 1998 MP 73. (viii) Once the evidence on which the courts of fact
have acted was admissible and relevant, party cannot be allowed to raise that said evidence is insufficient
to justify the finding of facts in second appeal; Ramanuja Naidu v. Kanniah Naidu, JT 1996(3) SC 164.
(ix) Second AppealInterference with the factual finding is permissible only if the said finding is
unreasonable; Sadhu Mehar v. Rajkumar Patel, AIR 1994 Ori 26. (x) Second AppealInterference with
factual findings recorded by the court below is permissible in cases of non-consideration of relevant
evidence; Nalini v. Padmanabhan Krishnan, AIR 1994 Ker 14. (xi) Question of fact can not be allowed
to be raised in second appeal; Prabhu Dayal v. Suwa Lal, AIR 1994 Raj 149. (xii) Interference with
finding of fact is permissible if the court below ignored weight of evidence on record altogether; Ajab
Singh v. Shital Puri, AIR 1993 All 138: 1993 All LJ 548. (xiii) Erroneous application of lawSecond
appeal is maintainable If it raises a substantial question; Ratanlal Bansilal v. Kishorilal Goenka, AIR
1993 Cal 144: 1993(1) Cal HN 307: 1993 (1) Cal LJ 193. (xiv) Interpretation of the contract involves a
substantial question of law. It can be examined in second appeal; Smt. Vidya Wati through her LRs. v.
Hans Raj through his L.Rs., AIR 1993 Del 187: 1993 Rajdhani LR 274.(xv) Perverse finding recorded
by the court belowSecond appeal is maintainable; Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993
Cal 144: 1993 (1) Cal HN 307: 1993 (1) Cal LJ 193. (xvi) Factual finding based on no evidence
Second appeal is maintainable; Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993 Cal 144: 1993 (1) Cal
HN 307: 1993(1) Cal LJ 193. (xvii) Finding of fact recorded by the first appellate court cannot be
interfered with in second appeal unless perverse; Padmashree S.N. Swamy v. Smt. Gowramma, AIR
1993 Kant 208: 1992 (3) Kant LJ 244: 1993 (2) APLJ 18. (xviii) Finding of fact cannot be questioned in
second appeal; Ramaswamy Kalingaryar v. Mathayan Padayachi, AIR 1992 SC 115. (xix) In absence of
substantial question of law on current finding of facts it cannot be interfered with in second appeal;
Kehar Singh v. Yash Pal, AIR 1990 SC 2212.
A

Sec 100 of Civil Procedure Code,1908 In the


commentary on Code of Civil Procedure, Mulla Code of Civil Procedure (Abridged) Thirteenth Edition
by P.M Bakshi, at P 410-411 it has stated that a Kerala case i.e. Sankaranarayanan V/s. Ramaguptan 1929
KLT 744 spells out the object of the Amendment of 1976, which has restricted the scope of section 100 of
Civil Procedure Code. The following propositions relevant to this aspect emerge from the judgement:
(1) The first test to be applied in determining whether there is a substantial question of law is whether the
question raised is of general importance (or, in the alternative) whether the question directly and
substantially affects the rights of the parties. It is sufficient if one or the other ingredient is satisfied.

(2) It is not enough that the question only affects the rights of the parties;

(3) If these tests are satisfied, the court will further proceed to examine whether, the question raised has
already been settled by the Supreme Court. If the question has been so settled, the appeal must be rejected
at the threshold.

(4) If the question has not already been so settled, the Court can see whether the question is not free from
difficulty, or at least calls for a discussion of alternative views an area where a flexible approach may be
possible.

(5) The question should not merely be an arguable one; it should impress the court as one which needs to
be decided.
(6) If, at the admission stage, the court holds that the question has been properly decided by the first
appellate court (though there are no binding authorities on it), admission of the second appeal will be
refused. A party will not be allowed the mere luxury of a debate by admitting a second appeal

Substantial Question of law through


Judicial Pronouncements
It is a matter of concern that the scope of second appeals and as also the procedural aspects of second
appeals is often ignored by the High Courts. Some of the oft-repeated errors are:
(a) Admitting a second appeal when it does not give rise to a substantial question of law.

(b) Admitting second appeals without formulating substantial question of law.

(c) Admitting second appeals by formulating a standard or mechanical question such as "whether on the
facts and circumstances the judgment of the first appellate court calls for interference" as the substantial
question of law.

(d) Failing to consider and formulate relevant and appropriate substantial question/s of law involved in
the second appeal.

(e) Rejecting second appeals on the ground that the case does not involve any substantial question of law,
when the case in fact involves substantial questions of law.

(f) Reformulating the substantial question of law after the conclusion of the hearing, while preparing the
judgment, thereby denying an opportunity to the parties to make submissions on the reformulated
substantial question of law.

(g) Deciding second appeals by re-appreciating evidence and interfering with findings of fact, ignoring
the questions of law.

Section 100 CPC was amended in 1976 imposing drastic restriction on the High Court's jurisdiction in
entertaining a second appeal. Even prior to the 1976 amendment, the first appellate court was treated as
the final court of facts by the Privy Council. The High Court had no right to sit in appeal on facts. In
Durga Choudhrain v. Jawahir Singh Choudhri3the Privy Council held thus: (IA p. 127)
3 Reiterated by Subba Rao, J. (as he then was) in Sinha Ramanuja Jeer v. Ranga Ramanuja Jeer, AIR
1961 SC 1720 at p. 1730. 4 AIR 1959 SC 57 5 Refer Supra note 7 6 AIR 1963 SC 302
"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."4
In M.S.V. Raja v. Seeni Thevar5 it was held by the Supreme Court that the formulation of a substantial
question of law may be inferred from the kind of questions actually considered and decided by the High
Court in second appeal, even though the substantial questions of law were not specifically and separately
formulated. The observations made by the Court in this regard are as follows:
"18. We are unable to accept the argument of the learned Senior Counsel for the appellants that the
impugned judgment cannot be sustained as no substantial question of law was formulated as required
under Section 100 CPC. In para 22 of the judgment the High Court has dealt with substantial questions of
law. Whether a finding recorded by both the courts below with no evidence to support it was itself
considered as a substantial question of law by the High Court. It is further stated that the other questions
considered and dealt with by the learned Judge were also substantial questions of law. Having regard to
the questions that were considered and decided by the High Court, it cannot be said that substantial
questions of law did not arise for consideration and they were not formulated. Maybe, substantial
questions of law were not specifically and separately formulated. In this view, we do not find any merit in
the argument of the learned counsel in this regard."6 To determine the ratio of this case qua Section 100
CPC, the original proposition may be stated as follows: "The judgments of High Courts in second appeals
can be sustained if the judgments consider and decide substantial questions of law without formulating
them specifically and separately." Now if Prof. Wambaugh's reversal test to determine ratio decidendi is
applied, the original proposition may be reversed as follows: "The judgments of High Courts in second
appeals cannot be sustained if the judgments consider and decide substantial questions of law without
formulating them specifically and separately."
It can be seen that the result of the decision will not be the same after the reversal of the original
proposition. If the reversed proposition is applied, the appeal will be allowed. Therefore, the original
proposition is the ratio of the case. It is submitted with respect that the ratio of this case is inconsistent
with sub-sections (3), (4) and (5) of Section 100 CPC. This decision has the effect of diluting the
provisions of Section 100 CPC.
Sub-section (3) of Section 100 imposes a statutory obligation on the appellant in a second appeal to
formulate the substantial question of law in the memorandum of grounds of appeal. The proviso to sub-
section (5) read with sub-section (4) makes it clear that formulation of substantial question of law is
mandatory and if any other substantial question of law arises, the same can be decided without
formulating it/them. The proviso to sub-section (5) clearly negates the view taken in M.S.V. Raja case. It
is respectfully submitted that the holding of the Court that "whether a finding recorded by both the courts
below with no evidence to support it was itself considered as a substantial question of law by the High
Court" does not pass the test laid down by the Constitution Bench of the Supreme Court in Chunilal
Mehta case11. It is submitted with respect that the ratio regarding Section 100 CPC inM.S.V. Raja v.
Seeni Thevar7 needs reconsideration. A
A A

TEST FOR SUBSTANTIAL QUESTION OF


LAW
7 (2001)6SCC652 8 AIR1962SC1314
The Supreme Court in Sir Chunilal V. Mehta and Sons Ltd. Vs. The Century Spinning and
Manufacturing Co., Ltd.8 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. It can be said that when a question is fairly arguable, or where there is room
for a different opinion, or where there an alternative view is equally possible or where the point is not
finally settled, or not free from doubt, it can be said that the question would be a substantial question of
law
What is a substantial question of law would certainly depend upon facts and circumstances of every case
and if a question of law had been settled by the highest court of the countrythat question however
important and difficult it may have been regarded in the past and however large may be its effect on any
of the parties, would not be regarded as substantial question of law. In Raghunath Prasad v. Deputy
Commissioner of Partabgarh 9the Judicial Committee observed that a question of law to be considered
a "substantial question of law" need not be one of general importance and it could be a substantial
question "as between the parties". This Court had occasion to consider the views expressed on the point
by the High Courts of Bombay, Nagpur and Madras in Kaikhushroo Pirojsha Ghaira v. C.P. Syndicate
Ltd. [1948] 1. Bom. L.R. 744; Dinkarrao v. Rattansey,I.L.R. (1949) Nag. 224 and Rimmalapudi Subba
Rao v. Noony Veeraju I.L.R. 1952 Mad. 264 respectively placing differing emphasis on what was a
"substantial" question of law between the parties. It was held by this Court that while the view taken by
the Bombay High Court was too narrow, the one taken by the Nagpur High Court was too broadly stated.
Approving the view taken by the Madras High Court it was observed: ...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. (emphasis supplied)

ILLUSTRATIVE CASES OF SEC 100


9 [1927] 54 LA. 126
A substantial question of law ordinarily would arise from the finding of facts arrived at by the Trial Court
and the First Appellate Court. The High Court's jurisdiction in terms of Section 100 of the Code is
undoubtedly limited. The question as to whether the plaintiff was ready and willing to perform its part of
contract by itself may not give rise to a substantial question of law. Substantial question of law should
admittedly be formulated relying on or on the basis of findings of fact arrived at by the Trial Court and
the First Appellate Court. However, there cannot be any doubt whatsoever that consideration of irrelevant
fact and non-consideration of relevant fact would give rise to a substantial question of law. Reversal of a
finding of fact arrived at by the First Appellate Court ignoring vital documents may also lead to a
substantial question of law.In Vidhyadhar v. Manikrao and Anr.10:, Supreme Court held:
10 [1999]1SCR1168, See also Iswar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera and Anr.
[1999]1SCR1097 ] 11 1992 (62) ELT 17 Raj 12 (2002) 8 SCC 715
The findings of fact concurrently recorded by the trial court as also by the lower appellate court could
not have been legally upset by the High Court in a second appeal under Section 100 CPC unless it was
shown that the findings were perverse, being based on no evidence or that on the evidence on record, no
reasonable person could have come to that conclusion.
Ordinarily, an appeal is allowed on the failure of the High Court to formulate substantial questions of law
within the meaning of Section 100 of the Code, but, we feel that as the plaintiff - Respondent No. 1 had
already parted with a substantial portion of the consideration amount as also upon having paid a large sum
towards conversion charges, in the interest of justice another opportunity should be given to the High
Court to frame proper substantial questions of law arising in the matter.
We may, however, notice a few decisions in regard to the jurisdiction of the High Court under Section 100
of the Code. In Commissioner of Customs (Preventive) v. Vijay Dasharath Patel 2007(210)ELT321(SC) ,
this Court held: We are not oblivious of the fact that the High Court's jurisdiction in this behalf is
limited. What would be substantial question of law, however, would vary from case to case.
Moreover, although, a finding of fact can be interfered with when it is perverse, but, it is also trite that
where the courts below have ignored the weight of preponderating circumstances and allowed the
judgment to be influenced by inconsequential matters, the High Court would be justified in considering
the matter and in coming to its own independent conclusion. (See Madan Lal v. Gopi.
MANU/PH/0482/2001)
The High Court shall also be entitled to opine that a substantial question of law arises for its consideration
when material and relevant facts have been ignored and legal principles have not been applied in
appreciating the evidence. Arriving at a decision, upon taking into consideration irrelevant factors, would
also give rise to a substantial question of law. It may, however, be different that only on the same set of
facts the higher court takes a different view. [See Collector of Customs v. Swastic Woollens (P) Ltd. and
Metroark Ltd. v. CCE.]11
Even in a case where evidence is misread, the High Court would have power to interfere. (See W.B.
Electricity Regulatory Commission v. CESC Ltd. and also Commr. of Customs v. Bureau Veritas.)12
CONCLUSION
Section 100 CPC impliedly declares that the first appellate court is the final court of facts and the High Court
has no jurisdiction to interfere with the finding of facts reached by the first appellate court, however gross the
error may seem to be. 2. The High Court is not a second court of first appeal under Section 100 CPC. 3. Since
an appeal is a creature of a statute, the High Court should satisfy itself about the presence of the substantial
question of law before admitting the second appeal. Section 100 CPC does not provide an absolute and
automatic right of appeal. 4. A question of law, to be substantial, must satisfy the test laid down by the
Supreme Court in Chunilal Mehta case11. 5. If a second appeal is allowed without framing a substantial
question of law, the same is liable to be set aside straight away without remanding back to the High Court
since an appellant in a second appeal cannot take advantage of his own wrong by not fulfilling the mandatory
requirement laid down in sub-section (3) of Section 100 CPC. 6. In view of sub-section (4) of Section 100
CPC substantial question or questions of law must be expressly and specifically formulated by the High Court
and the contrary view taken in M.S.V. Raja case13 is not correct. 7. It is not permissible for the High Court to
interfere with findings of the first appellate court only on the ground that the first appellate court had not come
to close grips with the reasoning given by the trial court.
BIBLIOGRAPHY
1. Solil Paul, Anupam Srivastava, Mulla The Code of Civil Procedure, (16th Edition, Volume 1, Butterworths,
New Delhi 2001)
2. Uranjan Chakraberti and Bholeshwar Naths, Cases and Materials on Code of Civil Procedure, (4th
Edition, Volume 1, Eastern Book Company, Lucknow 2006).
3. C.K.Thakker, Code of Civil Procedure, (Volume 1, Eastern Book Company, Lucknow, 2000).
4. Earl Jowitt: Dictionary of English Law, (1972); Concise Oxford Dictionary, (1995).
5. Sir John Woodroffe & Ameer Alis, Commentary on the Code of Civil Procedure, 1908, (Volume 1, 4th
Edition, Delhi Law House, 2006