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Analysis of the concept of Substantial Question of Law through Judicial precedents

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Published on: November 5, 2011

Section 100 of the Code declares that 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. The appellant has to precisely state in the memorandum of appeal the substantial question of law involved in the appeal.

The right to second appeal has been confined to cases where:

<!–[if !supportLists]–>1. <!–[endif]–>A question of law is involved; and

<!–[if !supportLists]–>2. <!–[endif]–>The question so involved is substantial.

This has been done deliberately and intentionally with the object of ensuring that the second appeal may not become a ‘third trial on facts’ or ‘one more dice in the gamble’. The scope and ambit of the jurisdiction of the High Court is very much narrowed down.

But, it has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Court have been issuing notices and generally deciding cases without adhering to the procedure prescribed under Section 100, CPC.

It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section, the findings of fact of the first appellate court are found to have been disturbed.

It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no Court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds.

Thus, in order to fulfill the condition mentioned in the section, it is essential to understand what a substantial question of law is. So, the researcher through various judicial decisions and precedents would try to analyze this concept of substantial question of law which has nowhere been defined in any of the statutes. The main focus of the project would remain to throw light as to what constitutes a substantial question of law and is excluded from its scope, and this would be done by taking the help of the judicial precedents.

Chapter II: Nature and Scope of Section 100

Section 100 of the Code of Civil Procedure, 1908 provides for a second appeal to the High Court from an appellate decree. There is no vested right of appeal unless the statute so provides. If a statute provides for a condition precedent to be satisfied before a court can exercise its appellate jurisdiction, the court is under obligation to satisfy itself whether the condition prescribed is fulfilled. Exercise of the appellate jurisdiction without the fulfillment of the statutory mandate would be without jurisdiction and therefore a nullity.

Section 100 CPC reads as follows:

“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.”

Though Section 100 CPC deals with the High Court’s jurisdiction in second appeal, it has the effect of declaring that the first appellate court is the final court on facts and the High Court in a second appeal cannot re-appreciate evidence or facts unless the case involves a substantial question of law.

Section 100 CPC was amended in 1976 imposing drastic restriction on the High Court’s jurisdiction in entertaining a second appeal. Even prior to the 1976 amendment, the first appellate court was treated as the final court of facts by the Privy Council. The High Court had no right to sit in appeal on facts.

Where no substantive question of law is raised, there would be no interference in second appeal.<!–[if !supportFootnotes]–>[1]<!–[endif]–>

The jurisdiction of the High Court to entertain a second appeal under S. 100 of the Code is confined only to such appeals wherein a substantial question of law is involved. The existence of a substantial question of law and not mere a question of law, is the sine qua non for the exercise of the jurisdiction under S. 100<!–[if !supportFootnotes]–>[2]<!–[endif]–>.

In Durga Choudhrain v. Jawahir Singh Choudhri<!–[if !supportFootnotes]–>[3]<!–[endif]–> the Privy Council held thus:  ”There is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be.”

In Deity Pattabhiramaswamy v. S. Hanymayya<!–[if !supportFootnotes]–>[4]<!–[endif]–>, Subba Rao, J. examined the reasons for evolving the practice and strongly criticized the practice of the High Courts in disposing of second appeals without any substantial question of law involved. The learned Judge observed:

“Notwithstanding such clear and authoritative pronouncements on the scope of the provisions of Section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of second appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public.”

In Dudh Nath Pandey v. Suresh Chandra Bhattasali<!–[if !supportFootnotes]–>[5]<!–[endif]–>, the Supreme Court held that the High Court cannot set aside findings of fact of the first appellate court and come to a different conclusion on reappraisal of evidence while exercising jurisdiction under Section 100 CPC.

In Annapoorani Ammal v. G. Thangapalam<!–[if !supportFootnotes]–>[6]<!–[endif]–> the Supreme Court held that a perusal of Section 100 CPC clearly indicates that the High Court had the jurisdiction to interfere only when a substantial question of law is involved and even then it is expected that such a question shall be so framed although the court is not bound by that question as the proviso indicates.

In Kashibai v. Parwatibai<!–[if !supportFootnotes]–>[7]<!–[endif]–> the Supreme Court observed as under:

“It may not be out of place to mention that sub-section (1) of Section 100 of the Code of Civil Procedure explicitly provides that 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. Sub-section (4) of Section 100 provides that when the High Court is satisfied that a substantial question of law is involved in any case it shall formulate that question. But surprisingly enough the High Court seems to have ignored these provisions and proposed to re-appreciate the evidence and interfere with the findings of fact without even formulating any question of law. It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, based on appreciation of the relevant evidence.”

Sub-section (3) of Section 100 imposes a statutory obligation on the appellant in a second appeal to formulate the substantial question of law in the memorandum of grounds of appeal. The proviso to sub-section (5) read with subsection (4) makes it clear that formulation of substantial question of law is mandatory and if any other substantial question of law arises, the same can be decided without formulating it/them.

Where a second appeal is disposed of without formulating question of law, such order would be liable to be set aside.<!–[if !supportFootnotes]–>[8]<!–[endif]–>

The substantial question of law as may be involved in the appeal is to be precisely stated in the memorandum of appeal itself. If the High Court feels satisfied about the existence of substantial question of law, it is for the High Court to formulate that question and the appeal is generally to be heard on the questions so formulated.<!–[if !supportFootnotes]–>[9]<!–[endif]–>

Under proviso to this section, the Court should be ‘satisfied’ that the case involves a ‘substantial question of law’ and not a mere ‘question of law’. Proceeding to hear that appeal without formulating a substantial question of law involved in the appeal is illegal and is an abnegation or abdication of the duty cast on Court and even after the formulation of a substantial question of law, if a fair and proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice.<!–[if !supportFootnotes]–>[10]<!–[endif]–>

Thus, section 100 limits the authority of the High Court in entertaining second appeals by making various procedural as well as substantial provisions of requirements to that effect.

Chapter III: Analysis on Substantial Question of Law

Meaning

The legislature has not defined the term “substantial question of law”, though the expression has been used in the Constitution as well as other statutes. The phrase, however, cannot be confined to a strait-jacket and no rule of universal application can be formulated as to when it can be said that a substantial question of law has arisen.

Test

Though the expression substantial question of law has not been defined in the Code, in Chunilal V. Mehta and sons v. Century Spg. & Mfg. Co. Ltd<!–[if !supportFootnotes]–>[11]<!–[endif]–>., the Supreme Court observed:

The proper test for determining whether a question of law raised 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 this Court or by the 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.

The above test laid down by the Supreme Court is to be applied by the High Courts to acquire jurisdiction under Section 100 CPC.

The word substantial, as qualifying ‘question of law’, means- of having substance, essence, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with- technical, of no substance or consequence or academic merely.<!–[if !supportFootnotes]–>[12]<!–[endif]–>

A substantial question of law is that question which has to be resolved for deciding the main issues involved in the suit. A judgment in second appeal which gives bereft of reference to substantial question of law is to be set aside.<!–[if !supportFootnotes]–>[13]<!–[endif]–>

In a case involving question of law there must be first a foundation for the question laid in pleadings, secondly, question should emerge from the sustainable findings of facts arrived at by the Court of facts and it must be necessary to decide that question of law for a just and proper decision between the parties.<!–[if !supportFootnotes]–>[14]<!–[endif]–>

When there is a legal right giving rise to cause of action, it is substantial question of law.<!–[if !supportFootnotes]–>[15]<!–[endif]–>

It can thus be said that when a question is fairly arguable, or where there is room for a different opinion, or where an alternative view is equally possible, or where the point is not finally settled, or not free from doubt, it can be said that the question would be a “substantial question of law”.

Substantial question of law has been held to be a question which includes a question on which there is scope for debates and on which there is a conflict of opinions.<!–[if !supportFootnotes]–>[16]<!–[endif]–>

Keeping in view the amendment made in 1976, a High Court can exercise its jurisdiction under Section 100 CPC only on the basis of substantial questions of law which are to be framed at the time of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. A judgment rendered by the High Court under Section 100 CPC without following the aforesaid procedure cannot be sustained.

The scope of exercise of the jurisdiction by the High Court in second appeal under section 100 is limited to the substantial question of law. To be a substantial question of law, it must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of parties before the Court.<!–[if !supportFootnotes]–>[17]<!–[endif]–>

The mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law.<!–[if !supportFootnotes]–>[18]<!–[endif]–>

It is not the misconstruction of any and every document which would lead to a question of law. It is only those discerning few cases where the rights of the parties are based upon a particular document such as a document of title, only then it can be said that the construction of the said document raises a question of law.<!–[if !supportFootnotes]–>[19]<!–[endif]–>

A Court is under a duty to examine the entire relevant evidence on record. If it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises gives birth to a substantial question of law, then the High Court is fully authorized to set aside the finding.<!–[if !supportFootnotes]–>[20]<!–[endif]–>

Merely because of appreciation of evidence another view is also possible would not clothe the High Court to assume jurisdiction by terming the question as substantial question of law.<!–[if !supportFootnotes]–>[21]<!–[endif]–>

Substantial question of law and question of law of general importance

For the purpose of invoking the jurisdiction of the High Court under S. 100 of the Code, the substantial question of law need not be of general importance. The Law Commission in its Fifty- Fourth Report<!–[if !supportFootnotes]–>[22]<!–[endif]–> made it clear by observing:

“It should be noted that we are not limiting the scope of second appeal to questions of law of general importance. If the law has been clearly laid down by the High Court, and the decision of the subordinate Court is in clear violation of the law as pronounced by the High Court, the power of the High Court to correct it should be left intact. This situation would not be covered if the limitation of general importance is inserted.”

In other words, substantial question of law means a substantial question of law as between the parties in the case involved.<!–[if !supportFootnotes]–>[23]<!–[endif]–> A question of law is substantial as between the parties if the decision turns one way or the other on the particular view of law. If it does not affect the decision, it cannot be said to be substantial as between the parties.<!–[if !supportFootnotes]–>[24]<!–[endif]–> Ultimately, what is a substantial question of law would depend upon the facts and circumstances of each case.<!–[if !supportFootnotes]–>[25]<!–[endif]–>

A question of law affecting exclusively the rights of the parties to that case which throws up the question is also a substantial question. This means a question of law to be substantial need not be of general importance<!–[if !supportFootnotes]–>[26]<!–[endif]–>.

Thus, when we look into the various judgments given by the Court over a period of time, we could try to give the following points as to what constitutes a substantial question of law and what is excluded from its scope:-

Substantial question of law involved: illustrative cases

Whether or not, in a particular matter, a substantial question of law is involved depends upon the facts and circumstances of each case. Moreover, the expression “involves” implies a considerable degree of necessity. It does not mean that in certain contingencies such a question might possibly arise.<!–[if !supportFootnotes]–>[27]<!–[endif]–> Similarly, the mere fact that such a question is raised in the second appeal is also not sufficient. It must definitely and clearly arise in the case.<!–[if !supportFootnotes]–>[28]<!–[endif]–> Finally, if a question of law has already been settled by the highest court, that question, however important and difficult it may have been regarded in the past and however large may be its effect on any of the parties, would not be regarded as a substantial question of law.<!–[if !supportFootnotes]–>[29]<!–[endif]–>

The following questions may be said to be substantial questions of law<!–[if !supportFootnotes]–>[30]<!–[endif]–>:

<!–[if !supportLists]–> i. <!–[endif]–>A question of law on which there is conflict of judicial opinion;

<!–[if !supportLists]–> ii. <!–[endif]–>Recording of a finding without any evidence of record;

<!–[if !supportLists]–> iii. <!–[endif]–>Inference from or legal effect of proved or admitted facts;

<!–[if !supportLists]–> iv. <!–[endif]–>Disregard or non-consideration of relevant or admissible evidence;

<!–[if !supportLists]–> v. <!–[endif]–>Taking into consideration irrelevant or inadmissible evidence;

<!–[if !supportLists]–> vi. <!–[endif]–>Misconstruction of evidence or documents;

<!–[if !supportLists]–> vii. <!–[endif]–>Interpretation or construction of material documents;

<!–[if !supportLists]–>viii. <!–[endif]–>A question of admissibility of evidence;

<!–[if !supportLists]–> ix. <!–[endif]–>Placing of onus of proof on a wrong party;

<!–[if !supportLists]–> x. <!–[endif]–>Disposal of appeal before disposing an application for additional evidence under Order 41 Rule 27, etc.

Substantial question of law not involved: illustrative cases

The following questions were held not to be substantial questions of law<!–[if !supportFootnotes]–>[31]<!–[endif]–>:

<!–[if !supportLists]–> i. <!–[endif]–>Concurrent findings of fact recorded by courts of below<!–[if !supportFootnotes]–>[32]<!–[endif]–>;

<!–[if !supportLists]–> ii. <!–[endif]–>Finding of fact recorded by the appellate court;

<!–[if !supportLists]–> iii. <!–[endif]–>Where two views are possible;

<!–[if !supportLists]–> iv. <!–[endif]–>Where new case is sought to be made out in second appeal;

<!–[if !supportLists]–> v. <!–[endif]–>Where new plea is raised which is either based on fact, or on mixed question of fact and law, or on mere question of law ( and not on substantial question of law);

<!–[if !supportLists]–> vi. <!–[endif]–>Where the question raised is too general or omnibus in nature;

<!–[if !supportLists]–> vii. <!–[endif]–>Where inference as to finding of fact has been drawn on the basis of evidence and material on record;

<!–[if !supportLists]–>viii. <!–[endif]–>Where the question is finally concluded by the Supreme Court, Privy Council or Federal Court;

<!–[if !supportLists]–> ix. <!–[endif]–>Where a finding of fact has been attacked on the ground that it is erroneous (as against perverse);

<!–[if !supportLists]–> x. <!–[endif]–>Where the High Court feels that the reasoning of the first appellate court is not proper, etc.

Thus, substantial question of law has a very wide scope and varies from case to case depending upon the facts and circumstances of each case.

Chapter IV: Conclusion

Section 100 of the Code declares that 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. For this, the basic two requirements are that of-

<!–[if !supportLists]–>1. <!–[endif]–>The substantial question of law as may be involved in the appeal is to be precisely stated in the memorandum of appeal itself.

<!–[if !supportLists]–>2. <!–[endif]–>If the High Court feels satisfied about the existence of substantial question of law, it is for the High Court to formulate that question and the appeal is generally to be heard on the questions so formulated.

Exercise of the appellate jurisdiction without the fulfillment of the statutory mandate would be without jurisdiction and therefore a nullity.

Thus, there have been various issues regarding the conditions precedent and have been dealt with by the Courts accordingly.

After going through the plethora of judgments on the issue of substantial question of law, the researcher has come to a conclusion that there cannot be a specific definition and exhaustive list as to what constitutes a substantial question of law, and that it has to be judged depending upon the facts and circumstances of each case and thus, varies from case to case. It is not a strait-jacket formula but certain general principles could be laid down, but they cannot be relied upon in every case as each case has its own merits.

<!–[if !supportFootnotes]–>

<!–[endif]–>

<!–[if !supportFootnotes]–>[1]<!–[endif]–> Dhadhum Hansala v. Gopal Tudu, 2007 AIHC 1804 (Jhar.)

<!–[if !supportFootnotes]–>[2]<!–[endif]–> D. Lakshmamma v. Kathi Chinna Narasappa alias Chinnedu, 1999 AIHC 3370 (AP)

<!–[if !supportFootnotes]–>[8]<!–[endif]–> Madan Lal v. Ram Krishna, AIR 2006 SC 645

<!–[if !supportFootnotes]–>[9]<!–[endif]–> K. Raj v. Muthamma, AIR 2001 SC 1720

<!–[if !supportFootnotes]–>[10]<!–[endif]–> KshitishChandra Purkait v. Santosh Kumar Purkait, AIR 1997 SC 2517 (2521)

<!–[if !supportFootnotes]–>[11]<!–[endif]–> AIR 1962 SC 1314: 1962 Supp (3) SCR 549

<!–[if !supportFootnotes]–>[12]<!–[endif]–> Gurdev Kaur v. Kaki, (2007) 1 SCC 546

<!–[if !supportFootnotes]–>[13]<!–[endif]–> K.C. Mathew v. A. Sulaikha Beevi, AIR 2000 SC 3408

<!–[if !supportFootnotes]–>[14]<!–[endif]–> Govindaraju v. Mariamman, AIR 2005 SC 1008

<!–[if !supportFootnotes]–>[15]<!–[endif]–> AIR 1987 Ker 75: 1986 Ker LT 1001

<!–[if !supportFootnotes]–>[17]<!–[endif]–> Govindaraja v. Mariamman, AIR 2005 SC 1008.

<!–[if !supportFootnotes]–>[18]<!–[endif]–> Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, AIR 1999 SC 2213

<!–[if !supportFootnotes]–>[19]<!–[endif]–> Suraj Prakash v. Union of India, AIR 1998 Del 236

<!–[if !supportFootnotes]–>[20]<!–[endif]–> Dilbagrai Punjabi v. Sharad Chandra, AIR 1988 SC 1858

<!–[if !supportFootnotes]–>[21]<!–[endif]–> Veerayee Ammal v. Seeni Ammal, (2002) 1 SCC 134

<!–[if !supportFootnotes]–>[22]<!–[endif]–> Law Commission’s Fifty-fourth Report at p. 90.

<!–[if !supportFootnotes]–>[23]<!–[endif]–> Raghunath Prasad v. Commr. of Pratapgarh, AIR 1927 PC 110

<!–[if !supportFootnotes]–>[24]<!–[endif]–> Mahant Har Kishan v. Satgur Prasad, AIR 1953 All 129

<!–[if !supportFootnotes]–>[25]<!–[endif]–> Pankaj Bhargava v. Mohinder Nath, (1991) 1 SCC 556: AIR 1991 SC 1233

<!–[if !supportFootnotes]–>[26]<!–[endif]–> Ratanlal Bansilal v. Kishorilal, AIR 1993 Cal 144 (FB)

<!–[if !supportFootnotes]–>[27]<!–[endif]–> Banke Lal v. Jagat Narain, ILR (1901) 23 All 94 at p. 98

<!–[if !supportFootnotes]–>[29]<!–[endif]–> Pankaj Bhargava v. Mohinder Nath, (1991) 1 SCC 556: AIR 1991 SC 1233

<!–[if !supportFootnotes]–>[30]<!–[endif]–> Takwani, C.K, Civil Procedure, Fifth Edition, Eastern Book Company, Delhi 2007

 

<!–[if !supportFootnotes]–>[31]<!–[endif]–> Takwani. C.K, Civil Procedure, Fifth Edition, Eastern Book Company, Delhi 2007

<!–[if !supportFootnotes]–>[32]<!–[endif]–> Hari Singh v. Kanhaiya Lal, AIR 1999 SC 3325.

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