Beruflich Dokumente
Kultur Dokumente
TABLE OF CONTENT
Introduction
Case Studies
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.
(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
(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