Section 100: Second appeal

Code of Civil Procedure Section 99A. No order under section 47 to be reversed or modified unless decision of the case is prejudicially affected.

APPEALS FROM APPELLATE DECREES

¹[100. Second appeal.—(1) 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.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) 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 sub-section 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.]

Note: 1. Subs. by s. 37, ibid., for section100 (w.e.f. 1-2-1977).

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure Section 100A. No further appeal in certain cases.

Simplified Explanation:

Section 100 provides for a second appeal on the substantial question of law. Second Appeal does not lie on questions of facts.The High Courts should not entertain a second appeal under Section 100 of the Code unless it raises a substantial question of law. 

It is the obligation on the Court of Law to further the clear intendment of the Legislature and not to frustrate it by ignoring the same.

Being a substantive statutory right, it has to be regulated in accordance with law in force, ensuring the full compliance of the conditions mentioned in the provision. Therefore, the Court has no power to enlarge the scope of those grounds mentioned in the statutory provision. Second appeal cannot be decided merely on equitable grounds as it lies only on substantial question of law, something distinct from the substantial question of fact.

The Court cannot entertain the second appeal unless the substantial question of law is involved.

There may be a question, which may be a “question of fact”, “question of law”, or “mixed question of fact and law” and “substantial question of law.” Question means anything inquired; an issue to be decided. The “question of fact” is whether a particular factual situation exists or not. A question of fact, in the Realm of Jurisprudence, has been explained as under:- “A question of fact is one capable of being answered by way of demonstration. A question of opinion is one that cannot be so answered. An answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong.”

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.

Existence of substantial question of law is a condition precedent for entertaining the second appeal.

There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse.

Declaration of relief is always discretionary. If the discretion is not exercised by the lower court “in the spirit of the statute or fairly or honestly or according to the rules of reason and justice”, the order passed by the lower court can be reversed by the superior court.

There may be exceptional circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of Section 100 CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of courts is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction. In second appeal the court frames the substantial question of law and at the time of admission of the appeal the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions, or the court comes to the conclusion that the question(s) framed could not be substantial question(s) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal.

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.

 

Further Reading:

State Bank of India & Ors. V. S.N. Goyal

Kshitish Chandra Purkait V. Santosh Kumar Purkait & Ors

Reference: http://www.nja.nic.in/16%20CPC.pdf

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