What is meant by the substantial question of law? Elaborate with reference to provisions and laws relating to the second appeal. Whether additional evidence can be entertained by the high court in the second appeal?

Question: What is meant by the substantial question of law? Elaborate with reference to provisions and laws relating to the second appeal. Whether additional evidence can be entertained by the high court in the second appeal? [JJS 2017]

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Answer

Under Article 132(1), an appeal lies to the Supreme Court from any judgment, decree, or final order, whether in a civil, criminal, or other proceedings, of a High Court if it certifies that the case involves a substantial question of law as to the interpretation of the Constitution. The power of the Supreme Court to hear appeals in constitutional matters is very broad because it acts as the guardian of the constitution. An appeal lies to the Supreme Court after a High Court grants a certificate. For such a certificate to be granted one of the conditions to be fulfilled is:

The question involved must be a “substantial question”. A question is not ‘substantial’ when the law on the subject has been finally and authoritatively settled by the Supreme Court.

A certificate needs to be granted only in cases where there is a substantial question of law involved. In Express Newspapers Ltd. v. State of Madras [AIR 1961 Mad 59], the Supreme Court revoked the certificate granted by the High Court as, in the opinion of the Supreme Court, no substantial question of law was involved.

Further, in the case of Satyapal Kashyap v. P.P.S. Chhatwal, 2019 SCC OnLine HP 1561 the court observed that the scope of interference by the High Court in the Second Appeal under Section 100 of the Code of Civil Procedure is only if the Court finds that there is a substantial question of law involved in the appeal.

The most important case which has been recently decided by the court is Nazir Mohamed v. J. Kamala, 2020 SCC OnLine SC 676. The court has given the following observation in the case:

The right of appeal is conferred by statute, and second appeal, or for that matter, any appeal is not a matter of right. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal and entertain and decide a second appeal, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and that the question is a substantial question of law.

When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law. Formulation of a substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal cannot satisfy the mandate of Section 100 of the CPC.

The Court, further, explained: To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.

Moreover, ordinarily, in the appellate stage, application to entertain additional documents should not be allowed; however, there are exceptions to this rule as observed in the Uma Shankar Singh v. State of Jharkhand, 2018 SCC OnLine Jhar 1263.

• Such an application for taking on record additional evidence at the appellate stage can be entertained in cases where it can be proved that the party did not get the opportunity to file the same documents at the lower stage.
• It can also be entertained in cases where it can be proved that in the absence of those additional pieces of evidence justice would not be served.
• Under Rule 27(1)(b) of CPC court is empowered to admit additional evidence in the appellate stage for any other substantial cause which the court may deem fit.

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