Framing Substantial Question of Law in a Second Appeal: An Examination of Section 100 of the Civil Procedure Code, 1908

Introduction

The architecture of civil appellate justice in India reflects a carefully calibrated balance between ensuring access to justice and preventing endless litigation. The right to appeal, though fundamental to the administration of justice, is neither inherent nor absolute but exists only to the extent conferred by statute. Within this framework, Section 100 of the Civil Procedure Code, 1908 occupies a unique position as the gatekeeper of second appeals to the High Courts. This provision, particularly after its substantial amendment in 1976, restricts the right of second appeal exclusively to cases involving a substantial question of law. Understanding what constitutes such a question and how it should be properly framed has emerged as one of the most critical aspects of civil procedure jurisprudence. The requirement serves not merely as a procedural formality but as a substantive limitation designed to conserve judicial resources, ensure finality in litigation, and direct appellate attention toward matters of genuine legal significance. This examination explores the statutory framework, judicial interpretation, and practical application of the substantial question of law requirement under Section 100.

Historical Evolution and Legislative Purpose

The Civil Procedure Code, 1908 originally provided broader grounds for second appeals, allowing High Courts to interfere with first appellate decrees on questions of fact and law. However, mounting arrears in High Courts and concerns about endless litigation prompted the Fifty-Fourth Law Commission Report to recommend curtailing this expansive jurisdiction. The Civil Procedure Code (Amendment) Act, 1976, which came into force on February 1, 1977, fundamentally transformed Section 100 by restricting second appeals to cases involving substantial questions of law [1]. This amendment reflected a deliberate policy choice to recognize the first appellate court as the final arbiter of facts while reserving High Court intervention for matters requiring authoritative legal guidance. The legislative history reveals that Parliament sought to balance two competing imperatives: maintaining access to justice through appellate review while preventing the appellate process from becoming an instrument of delay and harassment. The restriction to substantial questions of law serves this balance by ensuring that High Courts address genuinely debatable legal issues rather than conducting routine review of factual determinations made by lower courts.

Statutory Framework of Section 100

Section 100 of the Code of Civil Procedure, as it currently stands, provides the complete framework for second appeals. Sub-section 1 states that save as otherwise expressly provided in the 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. Sub-section 2 clarifies that an appeal may lie under this section from an appellate decree passed ex parte. Sub-section 3 mandates that the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. Sub-section 4 requires that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. Sub-section 5 provides that 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. The proviso to sub-section 5 preserves 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 the Court is satisfied that the case involves such question.

The statutory architecture reveals several critical features. First, the existence of a Substantial Question of Law is a jurisdictional prerequisite for entertaining second appeals under Section 100 of the Civil Procedure Code. In the absence of such a question, the High Court lacks the competence to interfere with the first appellate decree, regardless of whether that decree appears erroneous. Second, the burden lies initially on the appellant to precisely state the question in the memorandum of appeal, though the ultimate determination of its substantiality rests with the High Court. Third, the High Court must actively formulate the question rather than passively accepting the appellant’s formulation, thereby ensuring that only genuine questions of law receive second appellate consideration. Fourth, the appeal is heard specifically on the question so formulated, focusing judicial attention on the precise legal issue requiring resolution. Finally, the proviso permits the Court, for reasons to be recorded, to address additional substantial questions of law discovered during the hearing.

Defining Substantial Question of Law

The phrase substantial question of law, despite its centrality to second appeal jurisdiction, remains undefined in the Code of Civil Procedure. The task of defining this critical expression has therefore fallen to judicial interpretation, which has evolved through numerous authoritative pronouncements. The term substantial qualifies question of law, indicating that not every question of law merits second appellate consideration but only those possessing certain characteristics that elevate them to substantial status. The word substantial has been understood as meaning something of substance, essential, real, of sound worth, important, or considerable, standing in contradistinction to technical, of no substance or consequence, or academic merely.

The leading authority on this subject remains the Constitution Bench decision in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., delivered on March 5, 1962 [2]. The Court in this landmark judgment articulated comprehensive tests for determining whether a question of law qualifies as substantial. The proper test for determining whether a question of law raised in a case is substantial would 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 Supreme Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. The Court further clarified that 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.

This formulation establishes that a substantial question of law possesses certain identifiable characteristics. It must either involve matters of general public importance transcending the immediate dispute or directly and substantially affect the rights of the parties involved. Additionally, the question must present genuine legal uncertainty, whether because it remains unsettled by binding precedent, raises interpretive difficulties, or requires consideration of alternative views. Conversely, questions involving straightforward application of settled legal principles, however important to the parties, do not qualify as substantial questions of law. The test thus focuses both on the significance of the question and its debatability, ensuring that second appeals address genuinely complex legal issues rather than routine applications of established law.

The Necessity Clause and Related Precedent Authority

An important dimension of the substantial question of law requirement concerns whether the question must be of general importance or whether importance to the parties suffices. This issue was addressed by the Privy Council in Guran Ditta v. Ram Ditta, where their Lordships interpreted the phrase substantial question of law and held that it does not mean a substantial question of general importance but a substantial question of law which was involved in the case [3]. This interpretation, subsequently affirmed by Indian courts, clarifies that substantial questions of law need not possess universal significance but must be substantial as between the parties, meaning that resolution of the question materially affects their rights and obligations. However, while general public importance is not necessary, questions possessing such importance automatically qualify as substantial, creating a two-track approach where either general importance or substantial impact on party rights suffices.

The Supreme Court in Hero Vinoth v. Seshammal comprehensively summarized the tests for determining whether a given set of questions constitutes substantial questions of law [4]. The Court noted that the phrase substantial question of law as occurring in the amended Section 100 is not defined in the Code, and that substantial means having substance, essential, real, of sound worth, important or considerable, understood as something in contradistinction with technical, of no substance or consequence, or academic merely. The Court observed that the legislature chose not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The judgment emphasized that when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law.

Mandatory Nature of Formulation Requirement

Recent judicial pronouncements have emphasized the mandatory nature of the requirement to formulate substantial questions of law before deciding second appeals. In Nazir Mohamed v. J. Kamala, decided on August 27, 2020, the Supreme Court delivered a significant judgment reinforcing procedural requirements under Section 100 [5]. The bench of Justice Navin Sinha and Justice Indira Banerjee held that when no substantial question of law is formulated, but a second appeal is decided by the High Court, the judgment of the High Court is vitiated in law. The Court emphasized that formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal cannot satisfy the mandate of Section 100. The Court observed that just as the Supreme Court has time and again deprecated the practice of dismissing a second appeal with a non-speaking order only recording that the case did not involve any substantial question of law, the High Court cannot also allow a second appeal without discussing the question of law which the High Court seeks to answer or without formulating any substantial question of law.

The Nazir Mohamed judgment comprehensively summarized principles relating to Section 100 that merit detailed examination. The Court reiterated that a second appeal, or for that matter any appeal, is not a matter of right but a right conferred by statute. A second appeal only lies on a substantial question of law, and if statute confers a limited right of appeal, the Court cannot expand the scope of the appeal. It was not open to the respondent-plaintiff to re-agitate facts or to call upon the High Court to reanalyze or re-appreciate evidence in a second appeal. Section 100 as amended restricts the right of second appeal to only those cases where a substantial question of law is involved, and the existence of a substantial question of law is the sine qua non for the exercise of jurisdiction under Section 100. To be substantial, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and the rights of the parties before it if answered either way. To be a question of law involved 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 courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.

Questions of Law Distinguished from Questions of Fact

A foundational requirement for any substantial question of law is that it must first qualify as a question of law rather than a question of fact. The distinction between questions of law and questions of fact has been elaborated through extensive jurisprudence. An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. Similarly, the interpretation of statutory provisions, determination of whether facts satisfy legal tests prescribed by statute or precedent, and ascertainment of legal consequences flowing from established facts all constitute questions of law rather than questions of fact.

A substantial question of law will also arise in a contrary situation where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question violates the settled position of law. This principle recognizes that High Courts should intervene when lower courts have committed errors in applying clear legal principles, provided the error pertains to a question that substantially affects party rights. However, the general rule is that High Courts will not interfere with concurrent findings of the courts below. Some well-recognized exceptions exist where the courts below have ignored material evidence or acted on no evidence, the courts have drawn wrong inferences from proved facts by applying the law erroneously, or the courts have wrongly cast the burden of proof.

Limitations on High Court Jurisdiction

Section 100 of the Civil Procedure Code imposes strict limitations on the jurisdiction of High Courts in second appeals, confining their interference to cases involving a substantial question of law and thereby recognizing the first appellate court as the final court of facts. The Supreme Court has repeatedly emphasized that, in a second appeal, the jurisdiction of the High Court being so confined, a finding of fact is not open to challenge even if the appreciation of evidence is palpably erroneous and the conclusion incorrect. This principle, established in Ramchandra v. Ramalingam and consistently reaffirmed thereafter, prevents High Courts from undertaking a wholesale review of factual determinations merely because they might have reached a different conclusion had they been exercising first appellate jurisdiction. The restriction reflects both practical necessity, given the volume of litigation in Indian courts, and sound judicial policy, acknowledging that trial courts and first appellate courts possess distinct advantages in evaluating evidence, including observing witness demeanour and examining documentary material in detail.

An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. This requirement ensures that parties cannot ambush opponents with novel legal theories at the second appellate stage, depriving them of opportunities to present evidence and arguments at earlier stages. The question of law must have a foundation laid in the pleadings and must emerge from sustainable findings of fact arrived at by courts of facts. Additionally, it must be necessary to decide that question of law for a just and proper decision of the case. These requirements ensure that second appeals address genuine legal issues that were part of the litigation at earlier stages rather than serving as opportunities for creative legal arguments divorced from the case as actually tried.

The concurrent findings rule represents another significant limitation on High Court jurisdiction. Where both the trial court and first appellate court have reached identical conclusions on questions of fact, such concurrent findings enjoy special protection and can be disturbed only in exceptional circumstances. The exceptions to this rule are narrow and well-defined, including situations where courts below ignored material evidence or acted on no evidence, drew wrong inferences from proved facts by applying law erroneously, or wrongly cast the burden of proof. Even in these exceptional situations, the High Court must identify a substantial question of law arising from the error rather than simply disagreeing with the factual conclusions reached below.

Procedural Requirements and Timing

The procedural framework for framing substantial questions of law involves specific requirements and timelines that ensure proper consideration of jurisdictional prerequisites. Sub-section 3 of Section 100 mandates that the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. This requirement places the initial burden on appellants to identify with precision the legal questions they seek to raise, enabling High Courts to screen appeals at the admission stage and reject those not involving substantial questions of law. The use of the word precisely indicates that vague or general assertions of legal error will not suffice; appellants must articulate specific, focused questions that can be evaluated for substantiality.

Upon receiving the memorandum of appeal, the High Court must determine whether the case involves a substantial question of law and, if satisfied that it does, must formulate that question. This formulation typically occurs at the admission stage, though courts retain power to reformulate or frame additional questions during the hearing. The practice of framing substantial questions at admission serves multiple purposes. It provides notice to respondents regarding the specific legal issues they must address, focuses the hearing on matters of genuine legal significance, and prevents second appeals from devolving into general review of all aspects of first appellate decisions. The formulated questions define the scope of the second appeal, and parties must confine their arguments to those questions unless the court exercises its power under the proviso to sub-section 5 to address additional questions.

Recent decisions have emphasized that framing substantial questions of law cannot be treated as a mere formality. Courts must actively consider whether the questions truly qualify as substantial rather than routinely accepting appellant formulations or framing questions without genuine analysis of their substantiality. The Supreme Court has criticized High Courts that frame questions and decide appeals on the same day without adequate consideration, noting that such haste prevents proper evaluation of whether substantial questions of law are genuinely involved. The proper practice involves framing questions at admission, providing parties with opportunities to prepare arguments addressing those specific questions, and then conducting substantive hearings focused on the framed questions.

Contemporary Application and Common Errors

Despite extensive judicial guidance, High Courts continue to commit errors in applying Section 100, prompting repeated Supreme Court intervention. The Nazir Mohamed case exemplifies common errors where High Courts frame questions of fact rather than questions of law or allow appeals without formulating any substantial questions at all. In that case, the High Court framed questions asking whether the lower appellate court was right in refusing relief of possession especially when it granted relief of mesne profits till delivery of possession. The Supreme Court found that neither of these formulations constituted a question of law, much less a substantial question of law, as they invited factual review rather than legal analysis. The Court emphasized that the High Court had patently erred in proceeding to allow possession on grounds that did not involve any legal question but merely disagreement with factual conclusions.

Another frequent error involves High Courts conducting detailed reappraisal of evidence under the guise of deciding substantial questions of law. Courts sometimes frame ostensibly legal questions but then analyze the case as if exercising first appellate jurisdiction, examining evidence in detail and reaching independent factual conclusions. Such practice violates the fundamental principle that the first appellate court is the final court of facts. The Supreme Court has deprecated this practice repeatedly, noting that it introduces a gambling element in litigation where parties whose cases were rejected in both the trial court and first appellate court receive unexpected relief through impermissible factual review by High Courts.

A related error involves formulating substantial questions at admission but then deciding the appeal based on different questions without formally reformulating them or recording reasons as required by the proviso to sub-section 5. While courts retain power to address additional substantial questions discovered during hearing, this power must be exercised transparently with proper notification to parties and recorded reasons explaining why the additional questions warrant consideration. Failure to follow this procedure deprives parties of adequate notice and opportunity to address newly identified questions, violating principles of natural justice.

The Balance Between Justice and Finality

The paramount consideration underlying Section 100 jurisprudence is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any litigation. This balance reflects competing values within the administration of justice. On one hand, the judicial system must provide meaningful opportunities for correcting errors, particularly errors involving legal principles that may have far-reaching implications. On the other hand, endless appeals undermine the effectiveness of judicial decisions, encourage strategic litigation designed to delay enforcement, and impose tremendous costs on parties and the judicial system. Section 100, by restricting second appeals to substantial questions of law, attempts to achieve this balance by ensuring that High Courts address genuinely significant legal issues while respecting the finality of factual determinations made by lower courts.

Whether a question of law is substantial and whether such a question is involved in the case would depend on the facts and circumstances of each case. This case-specific approach recognizes that identical legal issues may be substantial in one context but not another, depending on factors including the amount in controversy, the clarity of applicable law, and the potential impact on rights of parties. Courts must therefore engage in nuanced analysis rather than applying mechanical tests when evaluating substantiality. The analysis requires consideration of both the legal significance of the question and its practical importance in the specific case, ensuring that the gateway of Section 100 opens for matters genuinely deserving High Court attention while remaining closed to routine appeals.

Implications for Litigants and Legal Practice

The restrictive interpretation of Section 100 carries significant implications for litigants and legal practitioners. For appellants, the burden of identifying and precisely stating substantial questions of law requires careful analysis at the appeal-drafting stage. Generic assertions that the first appellate court committed errors of law will not suffice; appellants must identify specific legal issues, explain why they qualify as substantial, and demonstrate how their resolution materially affects the outcome. Failure to discharge this burden results in dismissal at the admission stage, making the first appellate decree final. For respondents, the restriction of second appeals to substantial questions provides greater certainty that favorable first appellate decrees will not be disturbed through routine review of factual findings. However, respondents must remain vigilant to ensure that High Courts properly confine themselves to framed questions rather than expanding review beyond jurisdictional limits.

For the judiciary, Section 100 jurisprudence demands a disciplined approach to second appeals. Judges must resist the temptation to correct perceived factual errors when no Substantial Question of Law is involved, even where they may believe that the first appellate court has reached incorrect conclusions. This discipline reflects the recognition that judicial resources are finite and that High Courts serve a specialized function of resolving significant legal issues rather than providing a generalized review of all judicial decisions. The requirement of formulating such questions at the admission stage compels courts to undertake a preliminary examination of jurisdictional prerequisites, thereby filtering out appeals that do not warrant second appellate scrutiny before investing judicial time and resources in full hearings.

Conclusion

The requirement of framing substantial questions of law under Section 100 of the Civil Procedure Code represents a carefully crafted mechanism for managing second appeal jurisdiction in a manner that balances access to justice with the imperative of finality. The extensive jurisprudence interpreting this requirement has established clear principles: second appeals lie only when substantial questions of law are involved; such questions must be debatable, not previously settled by binding precedent, and must materially affect party rights; questions must have foundations in pleadings and emerge from sustainable factual findings; courts must formulate questions rather than accepting appellant assertions uncritically; and formulation is mandatory rather than a mere formality. These principles serve the important function of ensuring that High Courts, as courts of limited second appellate jurisdiction, devote their resources to matters of genuine legal significance requiring authoritative guidance. The continued vitality of these principles depends on consistent application by High Courts, proper understanding by practitioners, and appropriate supervision by the Supreme Court. When properly applied, Section 100 achieves its intended purpose of providing meaningful avenue for correcting significant legal errors while preventing second appeals from becoming instruments of delay and harassment in the judicial process.

References

[1] The Civil Procedure Code (Amendment) Act, 1976 (Act No. 104 of 1976). Available at: https://indiankanoon.org/doc/192138551/ 

[2] Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314. Available at: https://indiankanoon.org/doc/1681739/ 

[3] Guran Ditta v. Ram Ditta, (1927-28) 515 IA 235, AIR 1928 PC 172. Cited in Hero Vinoth v. Seshammal, (2006) 5 SCC 545. 

[4] Hero Vinoth v. Seshammal, (2006) 5 SCC 545. Available at: https://rudrajyotinathray.com/2020/08/27/section-100-of-the-code-of-civil-procedure-1908/ 

[5] Nazir Mohamed v. J. Kamala, Civil Appeal Nos. 2843-2844 of 2010, decided on August 27, 2020. Available at: https://indiankanoon.org/doc/76628467/ 

[6] Biswanath Ghosh v. Gobinda Ghose, AIR 2014 SC 152. Cited in Nazir Mohamed v. J. Kamala. Available at: https://www.scconline.com/blog/post/2020/08/28/judgment-deciding-second-appeal-without-formulation-of-substantial-question-law-not-valid-sc/ 

[7] Ramchandra v. Ramalingam, 1963 AIR 302. Cited in Nazir Mohamed v. J. Kamala. 

[8] Bhagyashree Anant Gaonkar v. Narendra @ Nagesh Bharma Holkar, Supreme Court judgment discussing substantial questions of law. Available at: https://www.drishtijudiciary.com/current-affairs/substantial-questions-of-law-in-second-appeal 

[9] Suresh Lataruji Ramteke v. Sau. Sumanbai Pandurang Petkar, Civil Appeal No. 6070 of 2023, decided on September 21, 2023. Available at: https://www.latestlaws.com/latest-news/sc-formulating-substantial-question-of-law-is-mandatory-mere-reference-to-ground-in-memorandum-of-second-appeal-cannot-satisfy-mandate-of-s-100-cpc/ 

Authorized and Published by Dhrutika Barad