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

Introduction

The right to appeal is a statutory right, not an inherent one. The scope of an appeal is strictly defined by the statute that confers this right. In the context of a second appeal in India, the relevant statute is Section 100 of the Civil Procedure Code, 1908 (CPC). This provision places a limitation on the right to a second appeal, only permitting it in cases involving a substantial question of law This article aims to delve into the specifics of what constitutes a ‘substantial question of law’ and how it is framed in a second appeal under Section 100.

Section 100: Second Appeal and the Requirement of a Substantial Question of Law

Section 100 of the CPC, as amended by the Civil Procedure Code (Amendment) Act, 104 of 1976, provides the basis for a second appeal. The section expressly states that an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, only if the High Court is satisfied that the case involves a substantial question of law.

The section further provides that the memorandum of appeal should precisely state the substantial question of law involved in the appeal, and the High Court must formulate that question if it is satisfied that a substantial question of law is involved in any case. The appeal is then heard on the question so formulated.

Defining ‘Substantial Question of Law’

The phrase ‘substantial question of law’ is not defined in the CPC. The term ‘substantial’ is understood as something of substance, essential, real, of sound worth, important, or considerable. However, the substantial question of law involved in a second appeal need not necessarily be of general importance.

The Supreme Court, in various judgments, has provided clarity on what constitutes a ‘substantial question of law’. 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/or the rights of the parties before it, if answered either way.

A question of law becomes a substantial question of law when it is of general public importance or when it directly and substantially affects the rights of the parties. This can be the case if the question is an open one, not finally settled by the Supreme Court, the Privy Council, or the Federal Court, or is not free from difficulty or calls for discussion of alternative views.

If a question of law is fairly arguable, where there is room for difference of opinion or where the court thought it necessary to deal with that question at length and discuss alternative views, then the question would be a substantial question of law.

Notable Judgments and Principles

Certain judgments have highlighted the principles relating to Section 100 of the CPC and the framing of a substantial question of law.

1. Nazir Mohamed Versus J. Kamala & Ors.
   In the case of Nazir Mohamed Versus J. Kamala & Ors., the Supreme Court underscored the importance of a thorough examination of the question of law before permitting a second appeal. The Court emphasized that the second appeal is not a matter of right but is conferred by statute, and it only lies on a substantial question of law. The Court also noted that it is 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​¹​​.
2. Sir Chunilal Mehta & Sons Ltd. Vs Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314: This landmark judgment of the Supreme Court laid down the test for determining whether a question of law is substantial. The Court stated that a substantial question of law would be one that is of general public importance, directly and substantially affects the rights of the parties, and is either an open question not finally settled by the highest courts or is not free from difficulty or calls for discussion of alternative views​¹​.
3. Hero Vinoth Vs Seshammal, (2006) 5 SCC 5452: The Supreme Court referred to the Chunilal Vs Mehta & Sons judgment and other judgments to summarize the tests for determining whether a given set of questions of law were mere questions of law or substantial questions of law​¹​​.
4. Guran Ditta Vs Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928 PC 172]: The Court 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​¹​.

Conclusion

Navigating the legal landscape of second appeals can be challenging. The requirement for a substantial question of law under Section 100 of the Code of Civil Procedure, 1908, serves as a gatekeeper, ensuring that the precious resources of the appellate courts are conserved for those matters which require their attention. This principle is grounded in the understanding that an appeal, especially a second appeal, is not a matter of right but is conferred by statute, and is intended to address important questions of law rather than a reevaluation of facts.

To qualify as a substantial question of law, the question must be debatable, not previously settled by law or a binding precedent, and must have a material bearing on the case or the rights of the parties involved. Understanding the nuances and implications of this requirement can mean the difference between a successful appeal and a dismissed case.

Ultimately, the substantive nature of the question of law is decided on a case-by-case basis. The courts have laid down guiding principles and tests, as seen in the notable judgments referenced, but the application of these principles is a matter of judicial interpretation. Lawyers and litigants must therefore carefully consider whether their appeal involves a substantial question of law and frame their pleadings accordingly.

This article has aimed to provide a comprehensive understanding of the requirement of framing a substantial question of law in a second appeal under Section 100 of the CPC. It is hoped that this will serve as a useful resource for those navigating the complexities of second appeals and contribute to the broader understanding of this fundamental aspect of civil procedure law in India.

Author: Parthvi Patel, United World School of Law