Second Appeal under Section 100 CPC: Procedural Compliance and Substantial Questions of Law

Introduction

The second appeal under Section 100 CPC operates within a carefully calibrated framework designed to ensure that substantial questions of law receive proper judicial consideration while maintaining procedural fairness. The Supreme Court’s recent pronouncement in Suresh Lataruji Ramteke v. Sau. Sumanbai Pandurang Petkar (Civil Appeal No. 6070 of 2023) has reinforced the importance of adhering to established procedural norms when deciding such appeals. This judgment, delivered on September 21, 2023, by a bench comprising Justice B.R. Gavai and Justice Sanjay Karol, has once again underscored the mandatory nature of procedural requirements that govern the exercise of second appellate jurisdiction by High Courts across the country.

The case arose from a second appeal filed under Section 100 CPC before the Nagpur Bench of the Bombay High Court concerning a suit for specific performance of contract. What caught the Supreme Court’s attention was not merely the substantive outcome but the procedural irregularities that characterized the High Court’s disposal of the appeal. The High Court framed substantial questions of law and proceeded to hear and decide the appeal on the very same day, reversing concurrent findings of fact recorded by both the trial court and the first appellate court. This hasty approach prompted the Supreme Court to examine whether such a procedure was consistent with the statutory mandate and the principles of natural justice that underpin appellate proceedings.

Understanding Second Appeal under Section 100 CPC: Statutory Framework and Scope

Section 100 of the Code of Civil Procedure, 1908, is the cornerstone provision governing second appeals to High Courts. The provision, as it stands after the amendment of 1976, restricts the scope of second appeals under under Section 100 CPC significantly. Prior to the amendment, High Courts possessed broader powers to interfere with first appellate decrees. However, the legislative intent behind the amendment was to limit the High Court’s interference to cases involving substantial questions of law, thereby reducing the burden on High Courts and ensuring that they focus on legally significant matters rather than re-examining factual findings.

The provision reads: “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.”[1] This language makes it abundantly clear that the existence of a substantial question of law is a jurisdictional prerequisite for entertaining a second appeal. Without such a question, the High Court lacks the competence to entertain the appeal, regardless of the merits of the case or the perceived injustice in the lower court’s decision.

Sub-section (3) of Section 100 mandates that “in an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.” This requirement places an initial burden on the appellant to identify and articulate the legal question that forms the basis of the appeal. The framing of questions at the admission stage is not merely a procedural formality but serves several important functions. It helps the Court focus its attention on specific legal issues, provides notice to the respondent about the grounds on which the appeal will be decided, and ensures that the appellate process does not become a vehicle for re-appreciation of evidence or re-examination of factual findings.

Sub-section (4) provides that “where the High Court is satisfied that a substantial question of law as formulated by the appellant is involved in the case, it shall formulate that question.” This provision gives the High Court the power to reformulate the question or frame additional questions. Sub-section (5) further states 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: 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.”[1]

The proviso to sub-section (5) is particularly significant. It recognizes that during the course of hearing arguments, the Court may discover other substantial questions of law that were not initially formulated. However, the critical aspect of this proviso is that it requires the Court to record reasons for entertaining such questions and, by necessary implication, to give the parties adequate opportunity to address these newly framed questions. This safeguard ensures that parties are not taken by surprise and have sufficient time to prepare and present arguments on all questions that the Court intends to decide.

The Concept of Substantial Question of Law

The phrase “substantial question of law” is central to the jurisdiction of second appeals, yet it is not defined in the Code of Civil Procedure. The task of defining this expression has therefore fallen to the judiciary. The leading authority on this subject remains the Constitution Bench decision in Sir Chunilal V. Mehta and Sons Ltd. v. The Century Spinning and Manufacturing Co. Ltd. (1962).[2] In this landmark judgment, the Supreme Court laid down the test for determining whether a question constitutes a substantial question of law.

According to the Court, “the proper test for determining whether a question of law raised in the 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 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.”[2] This test establishes that a question may be substantial in two ways: either because it has wider ramifications for the public at large, or because it significantly impacts the rights of the parties and involves legal principles that are unsettled or contentious.

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 clarification emphasizes that not every legal question qualifies as substantial. Questions that merely involve the application of well-settled principles to specific facts, or questions that are frivolous or manifestly untenable, cannot form the basis of a second appeal.

Procedural Framework for Second Appeals

The procedural framework for second appeal under Section 100 CPC involves a multi-stage process that is designed to ensure thorough consideration while maintaining judicial economy. The Suresh Lataruji Ramteke case has reinforced the importance of following this step-by-step approach rather than collapsing multiple stages into a single hearing.

Stage 1: Admission and Framing of Questions

The first stage involves the admission of the appeal and the framing of substantial questions of law. This stage is crucial because it determines whether the High Court has jurisdiction to entertain the appeal. The Court must examine the memorandum of appeal, consider the questions formulated by the appellant, and determine whether the case involves any substantial question of law. If the Court is satisfied that such a question exists, it must formulate that question clearly and precisely. The formulation should be specific enough to provide guidance about the scope of the appeal and the legal issues that require determination.

The Supreme Court in Suresh Lataruji Ramteke emphasized that framing of substantial questions should ordinarily occur at the stage of admission, not at a later stage. This ensures that parties know from the outset the grounds on which the appeal will be decided and can prepare their arguments accordingly. While the Court acknowledged that exceptional circumstances might justify framing questions at a later stage, such departures from the normal practice should be rare and should always be accompanied by adequate opportunity for parties to address the newly framed questions.

Stage 2: Hearing on Framed Questions

Once the questions are framed and the appeal is admitted, the matter proceeds to the hearing stage. At this stage, the parties present their arguments on the substantial questions of law that have been formulated. The respondent has the right to contend that the case does not actually involve the question framed by the Court, while the appellant seeks to establish that the question is indeed substantial and that it should be answered in a manner favorable to the appellant’s case.

The hearing stage is not meant to be a formality or a rushed affair. It requires the Court to hear elaborate arguments, consider relevant legal authorities, and examine how the law applies to the facts as found by the lower courts. The Supreme Court in Suresh Lataruji Ramteke criticized the High Court for disposing of the appeal on the same day that the questions were framed, observing that “the haste with which the Court proceeded to dispose of the appeal without proper and adequate opportunity to address arguments cannot be appreciated.”[3]

Stage 3: Judgment and Disposal

After hearing the parties on the framed questions, the Court proceeds to write a reasoned judgment. The judgment should address each substantial question of law that was framed, analyze the relevant legal principles, apply those principles to the facts of the case, and arrive at a conclusion. If the Court decides to frame additional questions during the hearing pursuant to the proviso to sub-section (5) of Section 100, it must give parties adequate time to address those questions before incorporating them into the final judgment.

Critical Analysis of the Supreme Court’s Judgment in Suresh Lataruji Ramteke

The Suresh Lataruji Ramteke case arose from a second appeal under Section 100 CPC concerning a suit for specific performance filed by the plaintiff-respondent.. Both the trial court and the first appellate court had decided in favor of the plaintiff, recording concurrent findings of fact. The defendant filed a second appeal under Section 100 CPC before the Bombay High Court. On September 19, 2022, the High Court framed substantial questions of law and proceeded to hear the appeal on the same day. The Court reversed the concurrent findings of the lower courts and dismissed the plaintiff’s suit.

When the matter reached the Supreme Court, the appellant challenged not just the substantive outcome but the procedural propriety of the High Court’s approach. The Supreme Court found merit in this challenge and observed that the High Court had failed to follow the prescribed procedure for disposing of second appeals.

The Supreme Court referred to several earlier decisions to establish the correct procedural framework. The Court noted that second appeals are not meant to be disposed of in haste and that the statutory scheme contemplates a gap between the framing of questions and the hearing of the appeal. This gap serves an important purpose: it allows parties to prepare their arguments, research relevant authorities, and present a well-considered case before the Court.

The Court pointed out that Section 100(5) itself suggests that there should be a gap between framing questions at admission and hearing the appeal. The proviso to this sub-section contemplates that questions framed at the time of admission are already known to the parties by the time of hearing, and they have had adequate time to prepare arguments on those questions. It is only during the course of arguments that if a further important issue is discovered, a question in that regard may be framed, with the parties then being granted time to address that question as well.

The Supreme Court observed that “a Court sitting in second appellate jurisdiction is to frame substantial question of law at the time of admission, save and except in exceptional circumstances. Post such framing of questions the Court shall proceed to hear the parties on such questions, i.e., after giving them adequate time to meet and address them. It is only after such hearing subsequent to the framing that a second appeal shall come to be decided.”[3]

The Court also emphasized that if substantial questions are altered, deleted, or new questions are added, the Court must hear the parties before deciding the appeal. This requirement flows from the principles of natural justice and ensures that no party is prejudiced by being called upon to address questions without adequate preparation or notice.

Judicial Precedents Reinforcing Procedural Discipline

The Supreme Court in Suresh Lataruji Ramteke relied on several earlier decisions to support its conclusions. One such decision was Santosh Hazari v. Purushottam Tiwari (2001), where a three-judge bench had laid down important principles regarding the framing and hearing of substantial questions of law in second appeals.[4] The Court in that case had emphasized that substantial questions must be framed precisely and that parties must be given adequate opportunity to address them.

Another significant precedent is K. Venkataramiah v. A. Seetharama Reddy (1963), which dealt with the scope of Section 100 CPC after its amendment.[5] The Court in that case had held that the High Court’s jurisdiction in second appeals is confined to substantial questions of law and that the Court cannot embark upon a re-appreciation of evidence or re-examination of factual findings unless such re-examination is necessary to decide a substantial question of law.

In Gursharan Singh v. New Delhi Municipal Committee (1996), the Supreme Court reiterated that concurrent findings of fact recorded by two courts below can be disturbed in second appeal only if the findings suffer from legal infirmities or are based on no evidence or are perverse.[6] This principle is important because it reinforces the limited nature of the High Court’s jurisdiction in second appeals and prevents the second appeal from becoming a third round of factual adjudication.

The Supreme Court has also dealt with cases where High Courts have framed questions at a later stage or have added questions during the hearing. In such cases, the consistent view has been that whenever new questions are framed or existing questions are modified, parties must be given adequate opportunity to address those questions. This principle was reiterated in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999), where the Court held that if the High Court proposes to decide the appeal on grounds not raised by the parties or on questions not formulated at the admission stage, it must give prior notice to the parties and allow them to address those grounds or questions.[7]

Implications for Appellate Practice

The Supreme Court’s judgment in Suresh Lataruji Ramteke has several important implications for appellate practice before High Courts. First, it reinforces the mandatory nature of the procedural requirements laid down in Section 100 CPC. High Courts cannot treat these requirements as mere technicalities or formalities that can be dispensed with in the interest of expediting disposal. The procedure is designed to ensure fairness and thoroughness, and any departure from it risks causing prejudice to the parties.

Second, the judgment emphasizes the importance of giving parties adequate time to prepare and present their arguments. In an era where courts are under pressure to clear backlogs and dispose of cases expeditiously, there may be a temptation to hear and decide matters quickly. However, the Supreme Court has made it clear that speed should not come at the cost of due process. Parties have a legitimate expectation that they will be given sufficient time to address the legal questions on which the appeal will be decided.

Third, the judgment provides guidance to High Courts on how to handle situations where additional questions need to be framed during the hearing. While the proviso to Section 100(5) gives the Court the power to frame additional questions, this power must be exercised with caution and always with adequate notice to the parties. The Court should record reasons for framing additional questions and should grant adjournment if necessary to allow parties to address the new questions.

Fourth, the judgment serves as a reminder that second appeals are not meant to be a third round of factual adjudication. The High Court’s jurisdiction is confined to substantial questions of law, and the Court should not embark upon a re-appreciation of evidence or a re-examination of factual findings unless such re-examination is necessitated by a legal error or infirmity in the lower court’s approach. Concurrent findings of fact recorded by two courts below carry great weight and should not be disturbed lightly.

The Role of Natural Justice in Appellate Proceedings

While the Supreme Court’s judgment in Suresh Lataruji Ramteke is primarily concerned with compliance with statutory requirements, it also has important implications for the principles of natural justice. Natural justice, or procedural fairness, is a fundamental principle that pervades all aspects of adjudication, including appellate proceedings. The two pillars of natural justice are the right to be heard (audi alteram partem) and the rule against bias (nemo judex in causa sua).

The right to be heard includes not just the right to present one’s case but also the right to adequate notice and adequate opportunity to prepare and present one’s case. When a High Court frames substantial questions of law and proceeds to hear and decide the appeal on the same day, it effectively denies parties the opportunity to prepare properly. This is particularly problematic in second appeals, which typically involve complex questions of law that may require extensive research and careful consideration of precedents.

The Supreme Court’s insistence on giving parties adequate time between framing of questions and hearing of the appeal is therefore grounded in the fundamental principles of natural justice. It ensures that the adjudicatory process is fair and that parties are not taken by surprise or put at a disadvantage due to lack of preparation time.

Moreover, the requirement that parties be heard before additional questions are framed or existing questions are modified is also rooted in natural justice. It ensures that the Court does not decide the case on grounds that parties have not had an opportunity to address. This is particularly important in second appeals because the scope of the appeal is defined by the substantial questions of law that are framed. If the Court changes or adds to these questions without notice to the parties, it fundamentally alters the scope of the appeal in a manner that may prejudice one or both parties.

Comparative Perspective

The concept of limiting further appeals to questions of law is not unique to India. Many common law jurisdictions have similar provisions that restrict the scope of second or third appeals. In England, for instance, appeals to the Court of Appeal and further appeals to the Supreme Court are generally limited to points of law. The rationale behind such restrictions is similar to that underlying Section 100 CPC: to ensure that the highest courts focus on legally significant matters rather than re-examining factual findings, and to bring finality to litigation at some stage.

However, the procedural safeguards that accompany these restrictions vary across jurisdictions. In some jurisdictions, the court hearing the appeal has considerable discretion in determining whether to grant leave to appeal and on what grounds. In others, as in India, there are more structured requirements regarding the framing of questions and the hearing of appeals. The Indian approach, as reinforced by the Supreme Court in Suresh Lataruji Ramteke, places considerable emphasis on transparency and procedural regularity. By requiring courts to frame questions precisely, give parties adequate notice and opportunity to address those questions, and record reasons for any departure from the normal procedure, the Indian system seeks to ensure that the exercise of appellate jurisdiction is fair, predictable, and consistent with the rule of law.

Challenges in Implementation

While the legal framework governing second appeals is well-established, its implementation in practice presents several challenges. One challenge is the sheer volume of cases pending before High Courts. With overburdened dockets and pressure to dispose of cases quickly, there may be institutional pressures that work against the kind of deliberate, step-by-step approach that the Supreme Court has mandated in Suresh Lataruji Ramteke. Courts may be tempted to consolidate stages or to hear matters on the same day that questions are framed in order to save time.

Another challenge relates to the identification of substantial questions of law. While the test laid down in Sir Chunilal V. Mehta provides general guidance, its application to specific cases can be difficult. Parties often frame questions in a manner that sounds like questions of law but are actually questions of fact or mixed questions of fact and law. Courts must carefully scrutinize the questions formulated by appellants and determine whether they truly involve substantial questions of law as understood in the jurisprudence.

A third challenge concerns the temptation to interfere with concurrent findings of fact. When two courts below have reached the same conclusion on facts, the presumption is strongly in favor of upholding those findings. However, parties often argue that the findings are perverse, are based on no evidence, or suffer from other legal infirmities. Determining whether such arguments raise substantial questions of law or are merely attempts to re-argue the facts requires careful judicial scrutiny.

Conclusion

The Supreme Court’s judgment in Suresh Lataruji Ramteke v. Sau. Sumanbai Pandurang Petkar serves as an important reminder of the procedural discipline that must govern the exercise of second appeal under Section 100 CPC by High Courts. By remanding the matter for fresh consideration and emphasizing that substantial questions of law should ordinarily be framed at the admission stage with adequate opportunity given to parties to address them before the appeal is decided, the Supreme Court has reinforced fundamental principles of procedural fairness and natural justice.

The judgment underscores that Section 100 of the Code of Civil Procedure is not merely a procedural provision but embodies important substantive values. It seeks to balance the need for finality in litigation with the imperative of ensuring that substantial questions of law receive proper judicial consideration. It recognizes that parties have a legitimate expectation of fairness in appellate proceedings and that this expectation includes adequate notice of the grounds on which the appeal will be decided and adequate opportunity to address those grounds.

As High Courts across the country continue to grapple with heavy caseloads and mounting arrears, the temptation to cut corners or to expedite disposal by consolidating procedural stages may be strong. However, the Supreme Court’s judgment makes it clear that such approaches are inconsistent with the statutory framework and with the principles of natural justice. Courts must resist the pressure to sacrifice procedural regularity for speed and must ensure that each stage of the second appeal under Section 100 CPC is conducted with due care and attention to the rights of the parties.

The principles laid down in Suresh Lataruji Ramteke will guide the future conduct of second appeals and will help ensure that the High Court’s exercise of jurisdiction under Section 100 CPC remains fair, transparent, and consistent with the rule of law. By adhering to these principles, courts can ensure that second appeals serve their intended purpose of resolving substantial questions of law while maintaining the integrity of the appellate process and public confidence in the administration of justice.

References

[1] Code of Civil Procedure, 1908, Section 100. 

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

[3] Suresh Lataruji Ramteke v. Sau. Sumanbai Pandurang Petkar, Civil Appeal No. 6070 of 2023, decided on September 21, 2023.

[4] Santosh Hazari v. Purushottam Tiwari (Deceased) through LRs, (2001) 3 SCC 179. 

[5] K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1526.

[6] Gursharan Singh v. New Delhi Municipal Committee, (1996) 2 SCC 459. 

[7] Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722. 

[8] Supreme Court of India. Official Website. Available at: https://main.sci.gov.in 

[9] LiveLaw. “Substantial Question Of Law & Second Appeal Jurisdiction: SC Summarizes Principles Relating To Section 100 CPC.” Available at: https://www.livelaw.in 

Author : Rutvik Desai