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.
ADVERTISEMENTS:
(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:
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ADVERTISEMENTS:
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.
Under the provisions of the old section, as a general rule, a second appeal lay on a question of law and the section expressly barred a second appeal on questions of fact. A second appeal lay to the High Court from a decree passed in appeal by any court subordinate to a High Court on any of the following grounds, namely:—(a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure provided by the Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
The Joint Committee of the two Houses of Parliament to which the Code of Civil Procedure Bill and the Limitation Act, 1963, had been referred, felt that the scope of second appeals should be restricted so that litigation may not drag on for a long period.
The new section lays down that save as otherwise expressly provided in the body of 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. In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
ADVERTISEMENTS:
Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. 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.
But nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reason 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.
The present amendment will largely curtail the right of second appeal. It is not based on realistic appraisal of the character of the judgment of the subordinate court, and is based on only substantial question of law. There is conflict of judicial decisions on the interpretation of the expression “substantial question of law”. The amendment has barred entertainment of second appeal on the ground of error of law or procedure.
No second appeal lies from an order.
Grounds of Second Appeal:
As a general rule a second appeal lies on a substantial question of law and the section expressly bars a second appeal on questions of fact. The principle on which S. 100 C.P.C., is based is that there should be an end of litigation on questions of fact even at the cost of occasional error. Section 101 lays down that no second appeal shall lie except on the grounds mentioned in S. 100. No court has power to add to or enlarge the grounds of second appeal set out in S. 100.
It has been held that 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. The High Court would not have jurisdiction to interfere in second appeal in what is virtually a question of fact even if the finding be erroneous. Sections 100 and 101, therefore, lay down the measure of finality where the decision turns on the balancing of evidence.
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 is so whether it is 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.
If the question is settled by the highest Court or by a larger Bench of the High Court concerned 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.
Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law.
But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as substantial question of law.
Where the first appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. Whether trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.
The second appellate Court cannot interfere with the judgment of the first appellate court on the ground that the first appellate Court had not come to close grips with the reasoning of the trial Court.
It is open to the first appellate court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on other side. It is not permissible for the second appellate court to interfere with such findings only on the ground that the first appellate court had not come to grips with the reasoning given by the trial court.
Objection as to validity of execution/attestation of a document raises a mixed question of fact and law and is not a pure question of law. Such question cannot be allowed to be raised for the first time in appeal.
For exercising of jurisdiction in second appeal the existence of substantial question of law is sine qua non.
Rejection of evidence by lower court on flimsy grounds involves a substantial question of law and High Court is right in interfering in such matter.
Finding of fact arrived by lower court is binding in second appeal. It is finding of fact that plaintiff did not make any effort to pay sale consideration to defendant and is binding in second appeal.
In the face of the findings recorded by the trial court as also by the Lower Appellate Court on the question of execution of sale deed by a defendant in favour of the plaintiff with further finding that it was a valid sale deed which properly conveyed the title of the property in question to the plaintiff, it was not expected of the High Court to set aside those findings merely on the ground that the circumstances which had already been considered by the lower courts, appeared to suggest some other conclusion from proved facts.
Reappreciation of Evidence—not permissible:
In a second appeal the Court cannot reappreciate the evidence unless the judgment is perverse or the judgment is based upon evidence admitted illegally or the finding is without evidence or there has been wrong construction of documents, or misreading of evidence.
Reappreciation of evidence:
Where the view taken by first appellate court is based on material on record and another view is possible on Reappreciation of evidence still the High Court should not reappreciate evidence to reach another view.
Interference can be made where findings are not proper. Lower Courts made findings that the temples under public trusts were not public temples ignoring the fact that members of public worshipped and gave offerings at temples and that dedication of properties was made and additional grant made to temple showing public character of temple. Such findings are not proper.
Concurrent finding of fact was made by lower courts that out of two sale deeds executed in respect of a property one are earlier in time genuine and valid. Second appellate by Reappreciation evidence interfered the finding on surmise that in view of delay in execution of the sale deed its execution on date borne by sale deed was not probable. Supreme Court held it unjustified.
Concurrent finding of fact was made by lower courts that it had taken 15-16 years for accretion to land by aliuvion to be visible and demonstrable. This finding was set aside by High Court on ground that claimant failed to disclose as to by what means of knowledge that witnesses stated that accretion was gradual.
The finding was unjustified in view of S. 100 and in view of ordinary human perception as in case of accretion it cannot be known as to where old line of boundary was for the process to take months in its completion.
Where no question of law is formulated by High Court, it is not justified to reappreciate evidence and interfere with finding of fact of courts below.
There was no unnatural or suspicious circumstance about the making of will or about its contents. In second appeal the court on Reappreciation of evidence and on circumstance that testating made will at the age of fifty declared will not be genuine and as not proved. The misfinding in second appeal is illegal.
The first appellate court gave findings without there being any issue and without there being evidence on record. The approach of the first appellate court was based on suspicion and bias against defendant. In such case High Court was justified to entertain second appeal and to set aside decree in favour of plaintiff.
Concurrent findings of fact with regard existence of particular disputed road were recorded by lower courts on the basis of documentary and oral evidence. Reversal of such findings by High Court by reappreaciating evidence is not proper.
It is well settled that howsoever erroneous a finding of fact may be it is conclusive in second appeal and is not liable to be challenged unless it is perverse or is based on no evidence or is such which no reasonable person can arrive at or is illegal.
In reversing finding of fact the appellate court must consider the reasons given by trial court for its finding.
The order of second appellate court dismissed the second appeal in limine though there were fairly arguable points apparently raising some questions of law. Such order is liable to be set aside.
Where the High Court in second appeal though not having jurisdiction illegally reversed the concurrent finding of fact and ordered remand, the aggrieved party can, in an appeal to the Supreme Court from the final order of the High Court after remand, challenge even the first order of the High Court making the remand and all the proceedings taken thereafter as a result of the illegal order of remand; the first judgment of the High Court- ordering remand being illegal all the proceedings taken thereafter become void ab initio.
The findings of fact concurrently recorded by the trial court as also by the Lower Appellate Court could not have been legally upset by the High Court in a second appeal unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion.
It is illegal to revert finding as bona fide requirement of landlady arrived at trial court, by appellate court without taking into account all documents on record.
Suit for declaration of title to property was dismissed by lower court on finding that plaintiff failed to establish his title. It is not proper for High Court to reverse such finding merely on ground of weakness of defendants claim.
Where the first appellate court arrives at conclusions different from those recorded by the trial court and if the conclusions of the first appellate court are fully supported by relevant and admissible material on record, the decision of the first appellate court cannot be said to construe an error of law correctable by the High Court, while hearing an appeal under S. 100, C.P.C.
The High Court cannot interfere with the conclusions of the facts recorded by the lower appellate court, however erroneous the said conclusions may appear to be to the High Court. The High Court is not justified in interfering with the finding of fact recorded by the lower appellate court merely because the judgment of the lower appellate court is not as elaborate as that of a trial court or because some of the reasons given by the trial court are not expressly reversed by the appellate court.
The first appellate court made finding on the basis of oral and documentary evidence that certain parties remained in possession from certain year and opposite parties ceased to be in possession from said date. This being the finding of fact, the High Court cannot interfere in it.
Points of law can be allowed to be urged and put forward in a second appeal, even though such points were available on facts before the courts below, but were not urged or put forward.
The High Court in second appeal was not justified in re-appraising the evidence on record nor could it justify its conduct in doing so by merely stating that the finding of the courts below was perverse. The appeal was allowed by the Supreme Court.
The plea that the dispute between the parties under the contract could be referred to the arbitrator was not raised by the respondent in the written statement. No issue was framed by the trial court. The respondent could not be allowed to raise this question of maintainability at the appellate stage.
The question as to want of jurisdiction or maintainability of the suit should be raised at the earliest point of time. Therefore, the objection of the respondent insurance company regarding maintenance of the suit on the ground of insurance agreement was not sustainable.
New Plea:
A plea once abandoned in lower court cannot be raised in appeal.
Remand:
Remand is not warranted after long lapse of time. Where there was no issue on question of adverse possession before trial court and first appellate court, the second appellate court, for first time, could not give finding that title of one of the party stood extinguished.
For allowing to raise new plea, the High Court must be satisfied that the case involves substantial question of law. Where the High Court permitted new plea to be raised on ground of legal plea, the decision was set aside being not proper.
In second appeal the High Court has no jurisdiction to give findings on an issue which was not present in trial court. The findings based on new issue or evidence are liable to be set aside. No new plea can be raised for the first time in second appeal.
New case or new plea which is not supported by pleadings or evidence on record cannot be set up or raised in second appeal.
No question of law or even mixed question of fact and law raised and suit was decided by trial and first appellate court on question of fact. In such case it is not proper to entertain second appeal on new plea of availability of protection under S. 60 (b) of Easements Act.
High Court cannot reappreciate the evidence and interfere with the concurrent findings of fact of courts below without formulating any question of law:
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. It has been the consistent view of the Supreme 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.
Concurrent finding:
Generally it is not permissible to reverse concurrent finding of fact by trial court and appellate court.
It is not permissible to reverse the finding of fact by appreciation of evidence in second appeal. Concurrent findings of trial court and first appellate court to the effect that there was no contravention of the clause of lease-deed, cannot be reversed in second appeal by appreciation of evidence. No interference on findings of fact is warranted where no material evidence having direct impact on decision of case on merits was ignored.
Inference by High Court in concurrent findings must be avoided unless warranted by compelling reasons. It is not proper to appreciate evidence only to replace findings to lower court by High Court in second appeal.
Existence of disputed road was rejected by concurrent findings of lower courts an basis of oral, documentary and commissioner’s report. Reversal of findings of fact by High Court on the basis of a report of commissioner re-appointed by High Court is improper.
For exercising jurisdiction under S. 100 by High Court in second appeal existence of substantiated question of law is necessary. In suit for eviction concurrent findings were made by lower courts based on proper appreciation of evidence to the effect that need of landlord was not bona fide. It is not proper for High Court to interfere such findings in second appeal.
Abatement of Second Appeal:
Appeal does not abate where on death of one of the parties representing one of the branches of claimants the other claimants already were representing his state.
High Court committed error in not entertaining plea of res judicata in second appeal where first writ petition challenging selection and promotion was dismissed and second appeal was against dismissal of suit challenging validity of selection.
It is improper to dismiss the appeal for non-prosecution on refusing the request of appellant for adjournment. The proper procedure is that the court after declining adjournment should hear the appeal and decide it on merits. If the counsel for appellant refuses to agree, after recording it the appeal can be dismissed for non-prosecution.
The High Court dismissed the appeal on the ground of interference with record by the advocate as he after filing the appeal without permission added the prayer for condonation of delay. It was held not proper as party cannot be made to suffer for fault of his advocate.
The right of appeal is neither a natural right 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 second appeal cannot be decided on merely equitable grounds.
The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of powers under S. 100 unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Supreme Court, or was based on inadmissible evidence or arrived at without evidence.
Jurisdiction of the Court of Second appeal:
Their lordships of the Supreme Court observed in their judgment in Ramanuja Naidu v. V. Kanniah Naidu & Anr, that they were of the view that in interfering with the concurrent findings of facts of the lower courts the learned Single Judge of the High Court acted in excess of the jurisdiction vested in him under S. 100, C.P.C.
The learned Judge totally ever in his approach to the entire question, and in reappraising and Reappreciation the entire evidence and in considering the probabilities of the case to hold that the judgments of the courts below are ‘perverse’ and that the plaintiff is entitled to the declaration of title to suit property and recovery of possession.
Subsequent Event:
Where in an eviction application filed on the ground that the tenant had acquired vacant possession of residence, the tenant had set up a will in order to show that the residential house newly built up by the deceased mother of the tenant was not inherited by him, the High Court in second appeal can take note of the subsequent decision of a District Judge in a separate proceeding under the Succession Act that they will in question was not a genuine will.
Abatement of Second Appeal:
Appeal does not abate where on death of one of the parties representing one of the branch of claimants already were representing his estate.
High Court committed error in not entertaining plea of res judicata in second appeal where first writ petition challenging selection and promotion was dismissed and second appeal was against dismissal of suit challenging validity of selection.
It is improper to dismiss the appeal for non-prosecution on refusing the request of appellant for adjournment. The proper procedure is that the Court after declining adjournment should hear the appeal and decide it on merits. If the counsel for appellant refuses to argue, after recording the appeal can be dismissed for non-prosecution.
The High Court dismissed the appeal on the ground of interference with record by the advocate as he after filing the appeal without permission added the prayer for condonation of delay. It was held not proper as party cannot be made to suffer for fault of his advocate.
Section 100—Concurrent findings of fact and equitable relief:
The right of appeal is neither a natural right now 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 second appeal cannot be decided on merely equitable grounds.
The concurrent findings of fact howsoever erroneous cannot be disturbed by the High Court in exercise of powers under Section 100 unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Supreme Court, or was based on inadmissible evidence or arrived at without evidence.
Second Appeal:
In absence of any substantial question of law for consideration between parties, upsetting finding recorded by first appellate Court by taking different view on re-appreciation of evidence not justified.
No interference with concurrent finding of fact:
Where there was no interference with concurrent finding of fact regarding suit for a decree of permanent injunction restraining appellant from dispossessing plaintiff from the suit land, held that question of possession of suit land was essentially one of fact. Therefore, finding of possession recorded by the Courts below could not be interfered with in second appeal.
Formulation of substantial question of Law:
Now under Section 100, C.P.C. after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to revise the judgment of the first appellate Court without doing so.
There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion.
The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible.
In either of the above situations a substantial question of law can arise.
New case—Suit for partition:
Where Will was executed by ancestor of plaintiff and defendants and sale was made by legatee there under. It was neither challenged in plaint nor issues were framed. Supreme Court held that deciding legality of sale deeds and validity of Will for first time in appeal by High Court was not proper.
Finding of High Court that there was previous partition conflicting with further finding that partition suit was hot barred. Therefore judgment given by High Court in appeal could not be sustained and was accordingly quashed.
Concurrent findings of fact—Validity of licence for construction of suit building:
Where officer giving licence was Chief Officer of Town Municipal Council and also Secretary of Interim Mandal Panchayat. The licence was given under seal of Chief Officer of the Town Municipal Council but it was really a licence issued by the Municipal Panchayat at the time when the seals were not available in the Mandal Panchayat as it was newly formed.
Even in the absence of seal a conclusion had to be drawn that the licence had been issued by him on behalf of the Mandal Panchayat and not on behalf of the Municipal Council. This finding of fact stood affirmed by the first appellate Court. The High Court did not examine this aspect of the matter at all, therefore, it was not justified in holding that the licence granted to the appellant was in any way bad.
Suit for declaration of title, etc. over suit land—Powers of court:
The trial Court had dismissed the suit mainly on finding of non-impleadment of necessary parties. But the first appellate Court reversed such findings with sufficient reasons disclosing that it had examined pleadings of parties and evidence on record.
The reliance by first appellate Court was not on any inadmissible evidence as there was nothing to point out that it had failed to consider material or relevant evidence. The first appellate Court also pointed out inconsistency in defence case. Held that no interference was called for in second appeal.
Discretionary relief—Specific Relief Act, 1963—Sec. 20:
When issue about falsity of plaintiff’s claim not raised before trial Court or first appellate Court then refusal of relief by second appellate Court on account of falsity not proper.
Suit for specific performance—Specific Relief Act, 1963—Section 16:
Interference with concurrent finding that plaintiff/purchaser was ready and willing in second appeal on the basis of new plea raised improper.
Scope of jurisdiction in second appeal:
Where roving enquiry in factual arena was not contemplated. Court had decided to look into and re-appreciate evidence despite limited scope under Section 100. It has not examined entire evidence both oral and documentary but has relied only a portion thereof. Finding of fact recorded by first Appellate Court was set aside as High Court had exceeded its jurisdiction.
Powers of Court regarding recalling of judgment in second appeal:
Where there was recalling of judgment in second appeal on technical objection of non-impleading of LRs. of one of the parties. Held, that entire recalled judgment stood upset and was no longer available for Court either to concur or accept reasoning in earlier order.
Finding of facts:
In the findings of facts recorded by first appellate Court based on evidence, there could be no interference in second appeal.
Objection to execution of decree:
Where suit was for recovery of money. In execution of decree property in dispute was attached and put to auction. Appellant had claimed that property was ancestral property of appellant and his brother, but in the objection petition he had not set up case to determine his share. Held, that said ground could not be raised in second appeal after thirty years.
Interference allowed in second appeal:
Where concurrent findings recorded by Courts below were misleading the evidence and suffered from legal infirmity. Held, that” it could be interfered with in second appeal.
Finding of fact being unsustainable liable to be set aside in second appeal:
Where it was established by evidence of independent witnesses that vendor had received balance consideration for sale of immovable property. Such finding was given by the trial Court. First Appellate Court placing reliance upon statement of handwriting expert had failed to consider evidence of independent witnesses reversed finding of the trial Court. High Court held that such finding being unsustainable in law is liable to be set aside in second appeal.
Proof of execution of Settlement Deed:
There was finding by appellate Court on consideration of evidence on record that executor was physically healthy and was of sound disposing mind at the time of execution of deed. She had voluntarily executed such deed with knowledge and purport of documents. Held, that re-appreciation of evidence and reversal of said finding by High Court in second appeal was not proper.
Second appellate Court could re-assess evidence on record in order to render proper justice:
Where there was failure by appellate Court to frame points for determination. No proper reasons were given to reverse finding of trial Court. Order passed by first appellate Court on the basis of surmises and conjectures was without appreciating plea and counter-plea and analysing evidence on record. Held, that second appellate Court could re-assess evidence on record in order to render proper justice.
Hearing on Other Substantial Question of Law Not Formulated Earlier By High Court:
Where High Court had formulated other substantial question at a time of final hearing and after hearing counsel for both sides. Reasons therefore were not recorded. Court had only considered other substantial question formulated at the time of hearing. Question formulated earlier was not dealt with. Respondent was not given proper opportunity. Held, that judgment of High Court suffered from patent error.
Provisions under Section 100-A, C.P.C. To Prevail:
Appeal against judgment, decree or order passed by single Judge of High Court under Section 3 (13) (b) of High Court Act, 1959 was not maintainable due to amended Section 100-A, C.RC., 1908. It was held that fact that proceedings from which appeal had arisen was initiated prior to the enforcement of Amendment Act was of no consequence.
100-A. No further appeal in certain cases:
Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge.
Where the Letters Patent provided for an appeal from the decision of a single Judge of a High Court in an appellate decree, that virtually amounted to a third appeal and in order to minimise delay in the final disposal of litigation, it has been provided that there shall be no further appeal against the decision of a single Judge in a second appeal.