The second appeal under Section 100 of the Code of Civil Procedure (CPC) is a pivotal mechanism in civil litigation, allowing the High Court to examine appellate decrees passed by subordinate courts. However, the jurisdiction of the High Court in such matters is strictly confined to substantial questions of law, ensuring that second appeals do not become an avenue for re-litigating factual issues.
A second appeal lies to the High Court only when the case involves a substantial question of law.
The memorandum of appeal must explicitly state this question, and the High Court must be satisfied of its existence. It is essential to note:
The formulation of the substantial question of law by the High Court is mandatory before the case can proceed.
Interim orders by the High Court are impermissible unless the substantial question of law is first framed, as clarified in Ram Phal v. State Bank of India.
Common Errors in Second Appeals
The procedural rigors of Section 100 CPC are often overlooked, leading to judicial lapses. The Supreme Court has flagged several recurring issues:
Admission of second appeals without formulating substantial questions of law.
Treating factual reappreciation as a basis for decision-making, ignoring the statutory restriction to questions of law.
Mechanical or generic formulation of substantial questions of law, undermining the precision required for fair adjudication (State Bank of India v. S.N. Goyal).
S.100 Second appeal CPC.—
(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.
High Court acquires jurisdiction to deal with the second appeal on merits only when it frames a substantial
question of law as required to be framed under Section 100 CPC; and it cannot grant an interim order, without framing substantial question of law. In this regard, a few decisions and the relevant paragraphs are usefully quoted below:
YouTube Video
Procedural Framework
Framing of Questions: The High Court must articulate the precise substantial question of law at the time of admission.
Hearing: The appeal is heard based on the question formulated, but the respondent may argue that no such question arises.
Flexibility: The High Court retains the power to reframe or formulate additional questions during the hearing, provided reasons are recorded (Umerkhan v. Bismillab)
Ram Phal (supra) .
Interim orders by the High Court are impermissible unless the substantial question of law is first framed,
Aggrieved, the respondents herein filed second appeal before the High Court against the judgment and decree of the first appellate court. When the second appeal came up for admission on 20-12-1999 the High Court directed to list the appeal for framing of question of law on 28-3-2000.
However, the High Court granted interim order by staying the execution of the decree. It is against the said order granting interim relief the respondent in the second appeal has preferred this appeal.
This Court, on a number of occasions, has repeatedly held that the High Court acquires jurisdiction to decide the second appeal or deal with the second appeal on merits only when it frames a substantial question of law as required to be framed under Section 100 of the Civil Procedure Code. In the present case, what we find is that the High Court granted interim order and thereafter fixed the matter for framing of question of law on a subsequent date.
This was not the way to deal with the matter as contemplated under Section 100 CPC. The High Court is required to frame the question of law first and thereafter deal with the matter. Since the High Court dealt with the matter contrary to the mandate enshrined under Section 100 CPC, the impugned order deserves to be
State Bank of India v. S.N. Goyal
Mechanical or generic formulation of substantial questions of law, undermining the precision required for fair adjudication
It is a matter of concern that the scope of second appeals and as also the procedural aspects of second appeals are often ignored by the High Courts.
Some of the oft-repeated errors are:
(a) Admitting a second appeal when it does not give rise to a substantial question of law.
(b) Admitting second appeals without formulating substantial question of law.
(c) Admitting second appeals by formulating a standard or mechanical question such as “whether on the facts and circumstances the judgment of the first appellate court calls for interference” as the substantial question of law.
(d) Failing to consider and formulate relevant and appropriate substantial question(s) of law involved in the second appeal.
(e) Rejecting second appeals on the ground that the case does not involve any substantial question of law, when the case in fact involves substantial questions of law.
(f) Reformulating the substantial question of law after the conclusion of the hearing, while preparing the judgment, thereby denying an opportunity to the parties to make submissions on the reformulated substantial question of law.
(g) Deciding second appeals by reappreciating evidence and interfering with findings of fact, ignoring the questions of law. These lapses or technical errors lead to injustice and also give rise to avoidable further appeals to this Court and remands by this Court, thereby prolonging the period of litigation. Care should be taken to ensure that the cases not involving substantial questions of law are not entertained, and at the same time ensure that cases involving substantial questions of law are not rejected as not involving substantial questions of law.”
Umerkhan v. Bismillab
The High Court retains the power to reframe or formulate additional questions during the hearing,
In our view, the very jurisdiction of the High Court in hearing a second appeal is founded on the formulation of a substantial question of law. The judgment of the High Court is rendered patently illegal, if a second appeal is
heard and judgment and decree appealed against is reversed without formulating a substantial question of law.
The second appellate jurisdiction of the High Court under Section 100 is not akin to the appellate jurisdiction under Section 96 of the Code; it is restricted to such substantial question or questions of law that may
arise from the judgment and decree appealed against. As a matter of law, a second appeal is entertainable by the High Court only upon its satisfaction that a substantial question of law is involved in the matter and its formulation thereof.
Section 100 of the Code provides that the second appeal shall be heard on the question so formulated. It is, however, open to the High Court to reframe substantial question of law or frame substantial question of law afresh or hold that no substantial question of law is involved at the time of hearing the second
appeal but reversal of the judgment and decree passed in appeal by a court subordinate to it in exercise of jurisdiction under Section 100 of the Code is impermissible without formulating substantial question of law and a decision on such question.”
Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal
The inherent jurisdiction of courts under Section 151 CPC cannot override the express provisions of Section 100. As observed in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, procedural compliance is paramount when the law explicitly governs a matter.
The Code of Civil Procedure is undoubtedly not exhaustive : it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorised to pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, and departure therefrom is not permissible.
As observed in LR 62 IA 80 (Maqbul Ahmed v. Onkar Pratab) “It is impossible to hold that in a matter which is governed by an Act, which in some limited respects gives the court a statutory discretion, there can be implied in court, outside the limits of the Act a general discretion to dispense with the provisions of the Act”. Inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive.”
The second appeal under Section 100 CPC is a specialized remedy aimed at resolving legal complexities rather than factual disputes. By adhering to the principles laid down by the judiciary and maintaining the sanctity of procedural requirements, courts can ensure that this appellate jurisdiction remains effective and focused on addressing genuine legal questions.
Comments