Skip to content
Home » Second Appeal restricted to Substantial Question of Law

Second Appeal restricted to Substantial Question of Law

The Supreme Court of India on Thursday, February 08, 2001 in Santosh Hazari Vs. Purushottam Tiwari (Dead) By Lrs., AIR 2001 SC 965 : 2001 (1) SCR 948 : (2001) 3 SCC 179 : 2001 (1) SCALE 712 : JT 2001 (2) SC 407 held that jurisdiction of the High Court to hear a second appeal is restricted to substantial question of law involved in the case.

A bench comprising of Chief Justice R.C. Lahoti and Justice Briijesh Kumar also held that an opportunity to frame such question should have been afforded to the appellant unless the deficiency was brought to the notice of the appellant by the Registry or the Court and yet the appellant had persisted in his default.

Section 100 of the Code of Civil Procedure restricts the jurisdiction of the High Court to hear a second appeal only on `substantial question of law-involved in the case.’ Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature.

Inspite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied :

(i) the High Court feels satisfied that the case involves such question, and

(ii) the High Court records reasons for its such satisfaction.

Referred to.

  1. Kshitish Chandra Purkait v. Santosh Kumar Purkait & Ors., [1997] 5 SCC 438
  2. Panchugopal Barua v. Umesh Chandra Goswami, [1997] 4 SCC 713
  3. Kondila Dagadu Kadam v. Savitribai Sopan Gujar & Ors., [1999] 3 SCC 722

Meaning of Substantial Question of Law

While allowing the appeal, the Apex Court held that to be `substantial’, a question of law must be debatable, not previously settled by law of the land or a binding precedent and must have a material bearing on the decision of the case, in so far as the rights of the parties before it are concerned. It will depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case or not.

The word substantial, as qualifying `question of law,’ means -of having substance, essential, 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.

To be a question of law `involving 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 court of facts and it must be necessary to decide that question of law for a just and proper decision of the case.

It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case or not.

Referred to.

  1. Guran Ditto & Anr. v. T. Ram Ditto, AIR (1928) Privy Council 172
  2. Sir Chunilal V. Mehta & Sons Ltd v. The Century Spinning and Manufacturing Co. Ltd., (1962) Supp. 3 SCR 549
  3. Rimmalapudi Subba Rao v. Noony Veeraju, ILR (1952) Madras 264
  4. Deputy Commr., Hardoi, Incharge Court of Wards and Bharawan Estate v. Rama Krishna Narain & Ors., AIR (1953) SC 521,

Principles governing exercise of duty as a First Appellate Court

The whole case being open for rehearing both on questions of fact and law, the judgement of the first appellate court must reflect its conscious application of mind and record findings supported by reasons on all the issues arising.

First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court.

The first appellate Court continues, as before, to be a final Court of facts. The first appellate Court is also a final Court of law because the jurisdiction of the High Court in second appeal ceases to be available to correct the errors of law even on questions of law unless such question of law be a substantial one.

Referred to.

  1. Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR [1967] SC 1124
  2. Madhusudan Das v. Smt. Narayani Bai & Ors., AIR [1983] SC 114
  3. Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh & Ors., AIR [1951] SC 120

Facts of the Case

Appellant-plaintiff was allegedly dispossessed by the respondent-defendant from his possession over certain area of the land out of the suit property. Hence the appellant-plaintiff filed a suit for declaration of title and recovery of possession and issuance of permanent injunction restraining the respondent-defendant from interfering with his possession over the suit property.

The Trial Court decreed the suit holding that ownership in the suit property vested in the appellant-plaintiff and the respondent- defendant had forcibly occupied the disputed area. The respondent- defendant’s plea of adverse possession and the suit being barred by limitation, was negatived.

The respondent-defendant preferred an appeal which was allowed by the Additional District Judge thereby reversing the judgement and decree of the Trial Court. The appellant-plaintiff preferred a second appeal which was dismissed in limine by the High Court holding that no substantial question of law arose for determination. Hence the present appeal.

The first appellate Court did not discharge the duty cast on it as a Court of first appeal. The High Court having noticed failure on the part of the appellant in not discharging the statutory obligation cast on him by sub-Section (3) of Section 100 of the Code of Civil Procedure, on account of the substantial question of law involved in the appeal having not been stated, ordinarily an opportunity to frame such question should have been afforded to the appellant unless the deficiency was brought to the notice of the appellant previously by the High Court Registry or the Court and yet the appellant had persisted in his default. That was not done. A substantial question of law does arise as involved in the case. The case is, thus, remitted back to the High Court for hearing and deciding the second appeal afresh.

Click to rate this post!
[Total: 0 Average: 0]