Whether the second appeal can lie against a ‘Decision being contrary to law’?

Question: Whether the second appeal can lie against a ‘Decision being contrary to law’? [UP C.J. 2001]

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Answer

Section 100 of the Code of Civil Procedure, 1908 deals with ‘second appeal’ law. Section 100 of the Code as amended by the Amendment Act of 1976 declares that 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.

The Legislature has not defined the term “substantial question of law“, though the expression has been used in the Constitution as well as in other statutes. The phrase, however, cannot be confined to a straitjacket and no rule of universal application can be formulated as to when it can be said that a substantial question of law has arisen.

In other words, a substantial question of law means ‘a substantial question of law between the parties in the case involved‘.

In Ratanlal Bansilal v. Kishorilal Goenka [AIR 1993 Cal 144], the Full Bench of the High Court of Calcutta after referring to the Fifty-fourth Report of the Law Commission and several decisions, observed:

“By importing the expression substantial question of law, the Commission can be said only to have sought to eliminate frivolous, flimsy and fragile second appeals and exhorted the High Courts to be on the strictest vigil against entry of appeals on inconsequential but ingenious grounds. It does not by its avowal preclude the admission of appeal in cases where there has been judicial misconduct in the assessment or admission of evidence.

This predicates that facts found upon such misconduct of the proceedings and misapplication of the procedure about evidence will necessarily be a question of law touching the legality of inference on proved facts…

If the law is settled but is not applied to a set of facts despite the finding warranting its application, it is not perceivable how the legislature could conceive of barring the High Court from setting right the erroneous application. Where the finding of fact is on no evidence it is then to be either on assumptions, or on surmises, and conjectures. How such a situation shall be allowed to go unremedied where it leads to the denial of justice? This will bring the judicial system to discredit before the people.”

Therefore, given the above judgment, a second appeal lies against a decision being contrary to law.

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