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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No order under section 47 to be reversed or modified unless decision of the case is prejudicially affected

 

Code of Civil Procedure Section

 

¹[99A. No order under section 47 to be reversed or modified unless decision of the case is prejudicially affected.—Without prejudice to the generality of the provisions of section 99, no order under section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case.]

Note 1: Ins. by s. 36, ibid. (w.e.f. 1-2-1977).

 

Code of Civil Procedure Section

Section 99: No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction

 

Code of Civil Procedure 

 

99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.—No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder ¹[or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court :

²[Provided that nothing in this section shall apply to non-joinder of a necessary party.]

Note: 1. Ins. by Act 104 of 1976, s. 35 (w.e.f. 1-2-1977).

2. Proviso Added by s. 35 ibid. (w.e.f. 1-2-1977).

Code of Civil Procedure 

Jurisdiction of courts and venue of suits

Jurisdiction means the authority by which a court has to decide matters that are brought before it for adjudication. The limit of this authority is imposed by charter, statute or commission. If no such limit is imposed or defined that the jurisdiction is said to be unlimited.

Limitation of jurisdiction of civil court is basically four kinds:

[1] Jurisdiction over the subject matter- to try certain matters by certain court is limited by statute (Ex. Small cause court- suit for money due under promissory note or a suit for price of work done)

[2] Place of suing or territorial jurisdiction – A territorial limit of jurisdiction for each court is fixed by Government.

[3] Jurisdiction over persons – All person of whatever nationality are subject to the jurisdiction of the country except foreign state.

[4] Pecuniary jurisdiction depending on pecuniary value of suit –There is no pecuniary jurisdiction of high court and district court.

Jurisdiction may be further classified: [a] Original jurisdiction [b] Appellate jurisdiction

Criminal and appellate jurisdiction- Supreme Court, High Courts and District courts have both original and appellate jurisdiction in various matter.

Decision where appeal heard by two or more Judges

 

Code of Civil Procedure Section

 

98. Decision where appeal heard by two or more Judges.—(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed :

Provided that where the Bench hearing the appeal is ¹[composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench] and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it.

²[(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters to patent of any High Court.]

Note: 1. Subs. by Act 104 of 1976, s. 34, for certain words (w.e.f. 1-2-1977).

2. Ins. by Act 18 of 1928, s. 2 and the First Sch.

Code of Civil Procedure Section

Appeal from final decree where no appeal from preliminary decree

 

Code of Civil Procedure Section

 

97. Appeal from final decree where no appeal from preliminary decree.—Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

 

Code of Civil Procedure Section

Section 96: Appeal from original decree

Code of Civil Procedure Section 95. Compensation for obtaining arrest, attachment or injunction on insufficient ground.

PART VII

APPEALS

APPEALS FROM ORIGINAL DECREES

96. Appeal from original decree.—(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

¹[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ²[ten thousand rupees.]]

Note 1. Ins. by Act 104 of 1976, s. 33 (w.e.f. 1-2-1977).

2. Subs. by Act 46 of 1999, s. 9, for “three thousand rupees” (w.e.f. 1-7-2002).

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

Code of Civil Procedure Section 97. Appeal from final decree where no appeal from preliminary decree.

Simplified Explanation:

Section 96 provides for appeal, and the provision has been amended by 1999 Act that appeal would lie only, provided there is a dispute of more than of Rs.10,000/-.

In the First Appeal, it is permissible for the appellate court to re-examine and re-appreciate the evidence. The right to institute the suit is an inherent right, but the right of appeal is statutory.

It is evident that the First Appellate Court must decide the appeal giving adherence to the statutory provisions of Order XLI Rule 31 CPC.

Judgment:

In Delhi U.P. Madhya Pradesh Transport Co. V. New India Assurance Co., (2006) 9 SCC 213, the Apex Court held that regular first appeal should not be dismissed summarily without assigning proper reason.

More Reading:

Order XLI Rule 31. Contents, date and signature of judgment.

H. Siddiqui v. A. Ramalingam

B.V. Nagesh & Anr. v. H.V. Sreenivasa Murthy

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

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Section 95: Compensation for obtaining arrest, attachment or injunction on insufficient grounds

Code of Civil Procedure Section 94. Supplemental proceedings.

95. Compensation for obtaining arrest, attachment or injunction on insufficient grounds.—(1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section,—

(a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or

(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable grounds for instituting the same, the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount ¹[not exceeding fifty thousand rupees], as it deems a reasonable compensation to the defendant for the ²[expense or injury (including injury to reputation) caused to him]:

Provided that a Court shall not award, under this section, an amount exceeding the limits of its pecuniar jurisdiction.

(2) An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction.

Note: 1. Subs. by Act 46 of 1999, s. 8, for certain words (w.e.f. 1-7-2002).

2. Subs. by Act 104 of 1976, s. 32, for “expense or injury caused to him” (w.e.f. 1-7-2002).

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

Code of Civil Procedure Section 96. Appeal from original decree.

Simplified Explanation:

Section 95- This provision has been amended for providing the maximum amount of compensation in case of malicious prosecution up to fifty thousand rupees for injury to the reputation to the defendant, but the Court does not have competence to award compensation beyond its pecuniary jurisdiction.

Prior to the amendment, compensation could be awarded up to a sum of one thousand rupees and the defendant was at liberty to file a separate Suit for damages. The purpose of this provision is to award compensation to the defendant for the expenses or injury caused to him as a result of the plaintiff obtaining an order of his (defendant’s) arrest or attachment or obtaining a temporary injunction against him on insufficient grounds. In certain circumstances, injury may include injury to reputation.

However, the remedy under this Section is very special and the compensation should be granted in exceptional circumstances where Court comes to the finding that the plaintiff had abused the process of the Court by malicious prosecution.

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

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