Section 100. Second appeal.
State Bank of India & Ors. V. S.N. Goyal
Kshitish Chandra Purkait V. Santosh Kumar Purkait & Ors
Judgment:
(a) In Panchu Gopal Barua V. Umesh Chandra Goswami & ors., AIR 1997 SC 1041, the Court observed that while entertaining the second appeal, the Court should not over-look the change brought about by the Amendment Act of 1976 restricting the scope of second appeal drastically and now it applies only to appeals involving substantial question of law, specifically set-out in the memorandum of appeals and formulated by the High Court. The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a sine- qua- non for the exercise of jurisdiction under the provisions of Section 100 of the Code.
(b) In Kashibai V. Parwatibai, (1995) 6 SCC 213, the Supreme Court held that the High Court cannot ignore the statutory provisions of Section 100 of the Code and reappreciate the evidence and interfere with the findings of facts unless the substantial question of law or a question of law duly formulated is to be decided. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence.
(c) In Ram Prasad Rajak V. Nand Kumar & Bros. & Anr., AIR 1998 SC 2730, the Supreme Court held that existence of substantial question of law is a sine-qua-non for the exercise of jurisdiction under Section 100 of the Code and entering into the question as to whether need of the landlord was bonafide or not, was beyond the jurisdiction of the High Court as the issue can be decided only by appreciating the evidence on record.
(d) In Smt. Bibhabati Devi V. Ramendra Narayan Roy & Ors., AIR 1947 PC 19, the Privy Council has provided guidelines as to what cases the second appeal can be entertained in, explaining the provisions existing prior to the amendment of 1976, observing as under:- “..... that miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happen not in the proper sense of the word ‘judicial procedure’ at all. That the violation of some principles of law or procedure must be such erroneous proposition of law that if that proposition to be corrected, the finding cannot stand, or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding, is such a question of law. ‘That the question of admissibility of evidence is a proposition of law but it must be such as to affect materially the finding. The question of the value of evidence is not sufficient reason for departure from the practice......”
(e) In Suwalal Chhogalal V. Commissioner of Income Tax, (1949) 17 ITR 269, the Apex Court held as under:- “A fact is a fact irrespective of evidence, by which it is proved. The only time a question of law can arise in such a case is when it is alleged that there is no material on which the conclusion can be based or no sufficient evidence.”
(f) In Oriental Investment Company Ltd. V. Commissioner of Income Tax, Bombay, AIR 1957 SC 852, the Supreme Court considered a large number of its earlier judgments, including Sree Meenakshi Mills Ltd. V. Commissioner of Income Tax, AIR 1957 SC 49, and held that where the question is whether profit is made and shown in the name of certain intermediaries, were, in fact, profit actually earned by the assessee or the intermediaries, is a mixed question of fact and law. The Court further held that inference from facts would be a question of fact or of law according as the point for determination is one of pure fact or a “mixed question of law and fact” and that a finding on fact without evidence to support it or if based on relevant or irrelevant matters, is not unassailable.
(g) In Sir Chunnilal V. Mehta & Sons V. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, the Supreme Court for the purpose of determining the issue by the Supreme Court itself, held as under:- “The proper test for determining whether a question of law raises 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 the apex Court or by Privy Council or by the Federal Court or is not 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.”
(h) A Constitution Bench of the Supreme Court, in the case of State of J&K V. Thakur Ganga Singh, AIR 1960 SC 356, considered as what may be the substantial question and held that authentic interpretation of Constitutional provisions amounts to substantial question of law. However, where the substantial question of law had already been decided by the Authority which is binding on the other Courts like the judgments of the Supreme Court under Article 141 of the Constitution is binding on all other Courts etc., it does not remain a substantial question of law because there remains no scope to interpret further the said provision.
(i) In Reserve Bank of India V. Ramakrishna Govind Morey, AIR 1976 SC 830, the Supreme Court held that the question whether the Trial Court should not have exercised its jurisdiction differently, is not a question of law or a substantial question of law and, therefore, second appeal cannot be entertained by the High Court on this ground.
(j) In Gian Dass V. Gram Panchayat, (2006) 6 SCC 271; and C.A. Sulaiman V. State Bank of Travancore, AIR 2006 SC 2848, the Apex Court held that Clause (5) to Section 100 applies only when a substantial question has already been framed and if the Court forms the opinion that some other substantial question of law also exists, the Court may frame the said issue after recording reasons for the same.
(k) In Jai Singh V. Shakuntala, AIR 2002 SC 1428, the Supreme Court held that it is permissible to interfere even on question of fact but it has to be done only under exceptional circumstances. The Court observed as under:- “While scrutiny of evidence does not stand out to be totally prohibited in the matter of exercise of jurisdiction in the second appeal and that would, in our view, be too broad a proposition and too rigid an interpretation of law not worth acceptance but that does not also clothe the superior courts within jurisdiction to intervene and interfere in any and every matter- it is only in very exceptional cases and on extreme perversity that the authority to examine the same in extensor stands permissible it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection.”
(l) In Muthu Gounder V. Ammayee Ammal, AIR 2002 SC 2481, the Supreme Court held that it is not permissible to interfere with the findings of facts by the courts below and to entertain a second appeal without framing a substantial question of law.
(m) In Transmission Corporation of A.P. V. Ch. Prabhakar & Ors., (2004) 5 SCC 551, the Supreme Court held that appeal is the right of entering a superior court and invoking its aid and interposition to redress an error of the court below. The right of appeal has been recognised by judicial decisions as a right which vests in a suitor at the time of institution of original proceedings, and it is the institution of the suit which by implication carries with it all rights of appeal. The right of appeal exists as on, and from the date of the commencement of lis and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of appeal. The vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise.
(n) In P. Chandrasekharan & Ors. V. S. Kanakarajan & Ors., (2007) 5 SCC 669 the Supreme Court reiterated the principle that interference in second appeal is permissible only when the findings are based on misreading of evidence or are so perverse that no person of ordinary prudence could take the said view. More so, the Court must be conscious that intervention is permissible provided the case involves a substantial question of law which is altogether different from the question of law. Interpretation of a document which goes to the root of title of a party may give rise to substantial question of law.
(o) In Shakuntala Chandrakant Shreshti V. Prabhakar Maruti Garvali & Anr., AIR 2007 SC 248, the Apex Court considered the scope of appeal under Section 30 of the Workmen’s Compensation Act, 1923 and held as under: “Section 30 of the said Act postulates an appeal directly to the High Court if a substantial question of law is involved in the appeal….. A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law………… A question of law would arise when the same is not dependent upon examination of evidence, which may not require any fresh investigation of fact. A question of law would, however, arise when the finding is perverse in the sense that no legal evidence was brought on record or jurisdictional facts were not brought on record.”
(p) In Santosh Hazari V. Purushottam Tiwari (2001) 3 SCC 179, the Supreme Court held that: “A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. It will, therefore, depend on the facts and circumstance of each case, whether a question of law is a substantial one or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
(q) In Sheel Chand V. Prakash Chand, AIR 1998 SC 3063, the apex Court held that question of re-appreciation of evidence and framing the substantial question as to whether the findings relating to factual matrix by the court below could vitiate due to irrelevant consideration and not under law, being question of fact cannot be framed.
(r) In Rajappa Hanamantha Ranoji V. MahadevChannabasappa & Ors. AIR 2000 SC 2108, the Supreme Court held that it is not permissible for the High Court to decide the Second Appeal by re-appreciating the evidence as if it was deciding the First Appeal unless it comes to the conclusion that the findings recorded by the court below were perverse.
(s) In Kulwant Kaur & Ors. V. Gurdial Singh Mann (dead) byL.Rs. AIR 2001 SC 1273, the apex Court held that the question whether Lower Court’s finding is perverse may come within the ambit of substantial question of law. However, there must be a clear finding in the judgment of the High Court as to perversity in order to show compliance with provisions of Section 100 CPC. Thus, the Court rejected the proposition that scrutiny of evidence is totally prohibited in Second Appeal. Thus, it is evident that High Court can interfere with the finding of fact while deciding the Second Appeal provided the findings recorded by the Courts below are perverse.
Section 100. Second appeal.
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