Discuss the provisions and grounds on which a second appeal lies in the light of CPC. (Amendment) Act, 2002.

Question: Discuss the provisions and grounds on which a second appeal lies in the light of CPC. (Amendment) Act, 2002.

Find the answer to the mains question only on Legal Bites. [Discuss the provisions and grounds on which a second appeal lies in the light of CPC. (Amendment) Act, 2002.]

Answer

Sections 100 to 103, 107, 108 read with Order 42 of the Code of Civil Procedure, 1908 deal with the second appeal. The second appeals are the appeals from the decrees passed in the first appeal. The Court of the first appeal can decide the question of fact and law also but the Court of the second appeal cannot entertain the question of facts.

Section 100 runs as follows

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.

1. An appeal may lie under this section from an appellate decree passed ex-parte.
2. In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
3. Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
4. 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 subsection 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 Amendment of 1976 has heavily curtailed the scope of the second appeal. As envisaged by Section 100 such an appeal lies only where the case e involves a substantial question of law.

In Koppisetty Venkat Ratnam v. Pamrati Venkatayamma,[(2009) 2 Supreme 728], the Supreme Court said that “the Legislature never wanted the second appeal to become the third trial of facts. It is mandatory that the second appeal must be on a question of law and therefore interference of the High Court is permissible only in cases involving substantial question of law.”

Substantial question of law

The expression “substantial question of law” has not been defined in the Code, however, have been judicially discussed in the case of Chunilal Mehta v. Century Spinning and Manufacturing Co. Ltd., [AIR 1962 SC 1314];

See also State of J. & K. v. Thakur Ganga Singh, [AIR 1960 SC 356]; Pankaj v. Mohindar, [AIR 1991 SC 1233]; Surain Singh v. Mehenga, [(1996) 2 SCC 624], the Supreme Court held

“The proper test for determining whether the 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 no 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.

Substantial question of law some illustrative cases

Substantial question of law depends upon the fact and circumstances of each case. But a number of questions have been decided to be substantial questions of law.

Some of them are as thus

1. Question of law on which there is judicial opinion.
2. Recording of finding without evidence.
3. Rejection or non-acceptance of relevant facts or admissible evidence.
4. The finding of the onus of proof.
5. Finding of the legal inference of evidence etc. The cases do not involve a substantial question of law.

The following questions have been held not to be substantial questions:

1. The finding of fact was recorded by the first appellate Court.
2. Where a new case is sought to be made out in the second appeal, etc. No further appeal in certain cases. Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge. [Sec. 100-A].

No second appeal in certain cases.

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. [Sec. 102].

Section 100-A (as substituted by Act 22 of 2002). Section 100-A, C.P.C. as substituted by Act 22 of 2002 deals with two types of cases which are decided by a Single Judge. One is where the Single Judge hears an appeal from an appellate decree or order. The question of there being any further appeal in such a case cannot and should not be contemplated

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