Appeal to High Court under Code of Civil Procedure

Generally after a first appeal, having being rejected or decided upon by a superior court from
the subordinate court calls for a further appeal by the aggrieved person. The provision
regarding the same is provided under Section 100-103, 107-108 and Order 42 of the Code of
Civil Procedure, 1908 which basically provides that a second appeal lies in the High Court.

The bare provisions under Section 100 of the Code of Civil Procedure provides that 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.

The proviso is also attached which says 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.

The intent of the legislature has aptly provided under the statement of objects and reasons
which provided that in dealing with the second appeals, the court had devised and
successfully adopted several concepts, such as, mixed question of fact and law, a legal
inference to be drawn from the facts proved, and even the point that the case has not been
properly approached by the courts below. This had created confusion in the minds of the
public as to the legitimate scope of the second appeal under section 100 and had burdened the
High Courts with an unnecessary large number of Second Appeals. Therefore, to deal with
these problems in particular, the Amendment Act of 1976 which changed the content of
Section 100 and has been appreciated that “there is no doubt that it has done deliberately and
intentionally with the avowed object of ensuring that the second appeal may not become a
third trial on facts or one more dice in the gamble.1

The sole requirement to avail the provision of second appeal is that the case so appealed shall
be based on substantial question of law. Since mere questions of fact are not entertained in
the court of second appeal that is High Court. The term derives it meaning that if such
question is of general public importance or if it directly and substantially affects the rights of

1
Gurdev Kaur v. Kaki AIR 2006 SC 1975
the parties and if so, whether it is either an open question in the sense that it is not finally
settled by subordinate court or any other court.2

Whereas no second appeal lies except on the ground mentioned in section 100.3 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.4

Coming onto the procedural aspect under Order 41 of the Code, the form of the appeal shall
be in memorandum that too involving the substantial question of law. The procedural aspect
has been aptly discussed in Sonubai Yeshwant v. Bala Govinda5 as “ The restrictive scheme
of Section 100 couched in mandatory terms, firstly casts a duty on the court not to admit the
appeals which do not involve substantial question of law for such an appeal is not provided
for and secondly, it requires the admission order to speak about and spell out such substantial
question and thirdly, on that question the notice has to be issued to the respondents, who are
enabled to show that such a question is neither a substantial question of law, nor arises in a
given appeal but further at that stage with the leave of the court that appellant is further
enabled to reply on any other substantial question of law which can form the part of the
debate at the final hearing stage.

It is also to be kept in mind that the High Court does not in any way form a prejudice against
the cases having issue of fact. In simple words, the prerequisite of substantial question of law
does not in some way or another exclude the issue of fact which is an exception and the same
is dealt under Section 103 of the Code which says that the High Court has power to determine
issue of fact. It is provided that 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, which
has not been determined by the lower Appellate Court or both by the Court of first instance
and the lower Appellate Court, or which has been wrongly determined by such Court or
Courts reason of a decision on such question of law as is referred to in section 100.

As a concluding remark, it can be said that there has been a drastic change in the trend of
second appeal which was not very restrictive and opened a wide umbrella to entertain cases
of all sorts which itself resembles the process of a newly instituted suit which not also
engaged the High Court while being time consuming but also defeated the purpose of the
High Court itself which changed after the amendment so that only those cases could made
appealable for second appeal to the High Court which involves substantial question of law.
Furthermore the limitation period of ninety days from the date of the decree appealed under
article 116 of the Limitation Act, 1963 provides for more stringent application of second
appeal.

2
Chunilal V. Mehta and Sons v. Century Spg. and Mfg. Co. Ltd. AIR 1962 SC 1314
3
Section 101
4
Section 102
5
AIR 1983 Bom 156