Meaning and Procedure of Second Appeal under the Civil Procedure Code, 1908

Meaning and Procedure of Second Appeal under the Civil Procedure Code, 1908 | Overview

• Introduction
• Features of Section 100, CPC
• Evolution of Section 100
• Limitations to the Second Appeal
• Powers of the Appellate Court

Under the Code of Civil Procedure, appeal to the High Court is referred to as the second appeal since the High Court is a second-highest court of appeal. This article shall comprehend the meaning and procedure of the second appeal under the Civil Procedure Code, 1908.

Introduction

The Code, under Section 100, entitles an aggrieved party to a suit to appeal before the High Court, if the right to appeal from the original decree has already been exhausted in the first attempt. The right to appeal before the High Court is a right to second appeal and it can be exercised after two subordinate courts have already looked into the material facts and evidence involved in the suit. The right to second appeal is not vested or deemed right.

It means that a person does not have a right to appeal by virtue of the fact that a decision has been made by a court against him. Right to the second appeal is a statutory right which is granted in certain circumstances by the statute and unless it is specifically granted, it cannot be exercised and any decree or judgment pronounced by the court without jurisdiction shall be null and void.

Features of Section 100, CPC

Section 100 entitles every aggrieved person to move the High Court to challenge any decree or judgment pronounced by a subordinate court in appeal. The essential features of the provision for the second appeal are as follows:

1. Savings Clause: Section 100 begins with a savings clause which makes an exception to the application of this section to circumstances specifically provided under the Code or any other law. It means that the parties should resort to Section 100 of CPC to appeal only when the specific law is silent on this aspect and when the CPC does not provide any procedure of the second appeal in any other provision. So, for example, Section 104 (2) does not allow a second appeal against orders passed by an appellate court, Section 100 cannot be invoked in such cases.
2. Any Sub-ordinate Court: Section 100 entails appeal from any court subordinate to the High Court which has passed any decree in its appellate jurisdiction. This provision entitles the High Court to hear appeals from various appellate tribunals which have pronounced a decree in their appellate jurisdiction. For instance, appeal from National Company Law Appellate Tribunal or the Income Tax Appellate Tribunal lies to the High Court as well.
3. Substantial Question of Law: The High Court can exercise jurisdiction in the second appeal only if the case involves a substantial question of law. Firstly, it means that the High Court shall not look into the authenticity of the facts and shall not take evidence to prove such facts. Further, the question of law must be substantial. In the matter of Santosh Hazari v. Purushottam Tiwari^[1], the apex court observed that ‘substantial’ means having substance, essential, real, of sound worth, important or considerable. This meaning was also reiterated in the recent case of Kashmir Singh v. Harnam Singh^[2]. All these judgments have been assimilated and a final test to decide the definition of ‘substantial question of law’ has been provided in the 2005 case of Govindaraju v. Mariamman^[3] wherein the court, in clearest terms, held, “to be a substantial question of law, it must be debatable, not previously settled by law of the land or a binding precedent and should be such that answer to it would have a material bearing as to the rights of parties before the court”.

Evolution of Section 100

Although Section 100 entitles an aggrieved party of a right to the second appeal, the issue in the appeal must involve a substantial question of law. The Code was amended in 1976 to include the words substantial question of law to prevent irrelevant appeals and misuses of process of High Court. This imposed a grave restriction on the powers of the High Court in adjudging appeals. Before the amendment, several courts had presented their opinions in this regard and exercise of power by the High Court.

In Durga Choudhrain v. Jawahir Choudhari[4], the apex court observed that High Court has no jurisdiction to entertain second appeals in cases of erroneous findings of facts.

Further, Subba Rao J. criticised works of the High Courts that heard appeals in cases that lacked substantial question of law[5]. His Lordship, in strong words, observed that certain High Courts dispose of second appeals as if they were first appeals and by taking up matters involving questions of facts, they perplex the litigants as well.

In Annapoorani Ammal v. G. Thangapalam[6], the apex court analyzed Section 100 and stated that the provision clearly states that the case should include a substantial question of law for the High Court to exercise jurisdiction. Prima Facie, the parties should frame the issues in a way that unveils and discloses clearly the substantial legal question involved and further, under the proviso to the section, if the issues do not disclose a substantial question of law, the court should determine whether a substantial legal question needs to be addressed in the appeal or not.

In Ramachandra Aiyyar v. Ramalinga Chettiar[7], the Supreme Court further held that the High Court also cannot intervene with any findings of the subordinate appeals court on the ground that its decision and identification of facts was not inline or in consonance with the findings of the trial court.

Limitations to the Second Appeal

Section 101 provides that there shall be no second appeal unless the provisions and prerequisites of Section 100 are duly fulfilled. Therefore, the test to determine eligibility for the second appeal is simply to fulfil the conditions laid down under Section 101and more specifically, there must be substantial legal question involved in the case.

Moreover, Section 102 states that if the subject-matter of the appeal is a recovery of money, to take the matter to the High Court, the amount of money to be recovered should exceed Rupees Twenty Five Thousand. It means that if the value of the money to be recovered is less than Rs. 25,000, the High Court shall lack the requisite pecuniary jurisdiction to entertain a second appeal.

Powers of the Appellate Court

Section 107 grants the following powers to the Appellate Courts:

• To Determine a Case Finally: An appellate court is entitled to dispose of the case finally, conclusively determining the rights of the parties involved. It is not necessary for the appellate court to look into all the issues framed for disposal, it may settle all such issues it deems necessary and involving a substantial question of law. Under Order XLI Rule 24, if the court believes that there is sufficient evidence to decide the case, it may proceed to decide the case finally.
• To Remand a Case: Remand a case means to send a case back to the subordinate court to be tried again. Rules 23 and 23A of Order XLI of the Code empowers the appellate court to remand a case back to the trial court with certain specific issues to be resolved by that court. It has to be understood that the appellate court is not empowered to take evidence and determine the correct factual situations. Thus, when a decree is passed by a trial court but no reason for such finding is mentioned and the appeals court reverses the decree, it is essential that the case is tried again on merits. Hence, the rule empowers the appellate courts to remand a case.
• To Frame Issues and Refer the Case for Trial: Under Rule 25 of Order XLI, the appellate court is empowered to frame issues in a suit which it believes that the subordinate court had failed to frame or try any matter for revealing a fact which has not already been done by the trial court. An appellate court is empowered under this provision to refer a case for trial for collecting additional evidence in the matter as well. Power to refer is different from that of remanding a case back because, in case of remand the entire record of the case (the case file) is sent back to the lower court for re-trial while in case of referral, only the specific issue is sent to be adjudged whereas the case file remains with the appellate court.
• To take additional evidence: As aforementioned, an appellate court is not empowered to take additional evidence and for that purpose, it has to be sent back to the trial court. However, Rules 27 to 29 provide certain exceptional situations when appeals courts can admit additional evidence:
  • When the trial court refuses to admit an evidence (oral or documentary) without lawful and just reasons.
  • When the party bringing the evidence had no knowledge about the evidence at the trial or at any time before the appeal.
  • If the party producing additional evidence can satisfy the court that he was unable to produce the evidence during trial despite exercising due diligence.

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References

1. R Prakash, Scope of High Court’s Jurisdiction Under Section 100 of the Civil Procedure Code, 1908, (2003) 5 SCC (Jour) 27.
2. C. Sarkar, Code of Civil Procedure, Vol. II, (12^th ed. 2017).

[1] Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179.

[2] Kashmir Singh v. Harnam Singh, AIR 2008 SC 1749.

[3] Govindaraju v. Mariamman, AIR 2005 SC 1008.

[4] Durga Choudhrain v. Jawahir Choudhari, AIR 1959 SC 57.

[5] Deity Pattabhiramaswamy v. S. Hanymayya, (1986) 3 SCC 360.

[6] Annapoorani Ammal v. G. Thangapalam, (1995) 6 SCC 213.

[7] Ramachandra Aiyyar v. Ramalinga Chettiar, (1995) 4 SCC 15.

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