Free Judiciary Notes · CPC Notes
CPC Sec. 100-103, 107-108 & Order 42
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SECOND APPEALS
Section 100 to 103, 107-108 and Order 42 deal with second appeals. A second appeal lies to a High Court within a period of 9o days from the date of the decree appealed against.Art.116, Limitation Act, 1963.
Duty of appellant
The Code requires the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal, which he proposes to urge before the High Court.
FORM OF APPEAL
According to section 100(3) the memorandum of second appeal shall precisely state the substantial question of law involved in the appeal.
However, unlike the memorandum of first appeal, it need not set out the grounds of objections to the decree appealed from. [Order 41. R.1(2) Contents of memorandum—
The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and suchgrounds shall be numbered consecutively.
Duty of court
If the High Court is satisfied that a substantial question of law is involved in the case, then it is the duty of the High Court that it should formulate such a question. Sonu bai Yeshwant v. Bala Govinda AIR I983 Bom 156: (1983) Bom CR 632 Clause (4) of S. 100 prescribe the mandatory requirement that where: The High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. But even if the High Court fails to formulate a substantial question of law at the time of admitting the appeal, the appeal cannot be dismissed on that ground and the court can formulate such a question at a later stage also.Failure on the part of the court, therefore, though serious does not affect the process of appeal whichis set for final hearing, nor can the appeal be dismissed for that reason. The court would be entitled to cure such a defect of court’s failure to comply with the mandatory requirements of sub-Section (4) of section 100 even by formulating such a question at the later stage. The court can use its inherent powers, recognised by the provisions of Section 151 of the Code of Civil Procedure, to cure such defects.
Hearing of appeal
The Code states expressly that the appeal shall be heard on the question (substantial question of law) formulated by the High Court (S.100(5)). Also, according to O. 42 R. 2 it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.It thus interdicts the appellant from urging any other ground in appeal without the leave of the court. The scope of hearing of second appeal is thus circumscribed by the question formulated by the court.
Not only that but it allows the respondent to argue that the question formulated by the High Court is not involved in the case. Generally, at the time of preliminary hearing of appeal, the respondent, who had succeeded for the first appellate court is not present in the High Court, and the second appeal is heard ex parte. But even if he is present, admission of appeal is essentially between the appellant and the court and the respondent (or his counsel) has no “right” of audience.
Moreover, at the stage, the court does not critically or analytically examine the case closely. If prima facie, it is satisfied that the appeal involves a substantial question of law, it may admit such appeal. It is at the time of final hearing that the respondent may be able to convince the court that no such question of law is involved in the case which can be said or termed “substantial”. The legislature, therefore, advisedly conferred a right on the respondent to raise such contention at the time of hearing of appeal.
Saving Power of High Court
Provision to sub-section (5) of Section 100, however, preserves powers of the HighCourt to hear and decide the second appeal upon any substantial question of law not framed or formulated at the time of admission of the appeal. But the High Court will have to exercise the power by recording reasons.
Section. 103 No second appeal lies on a question of fact. However, when such appeal is already before the High Court, and the evidence on record is sufficient, it may decide any issue of fact necessary for the disposal of the appeal, if such issue
1. has not been determined either by the trial court or by the appellate court or by both; or
2. has been wrongly determined by such court or courts by reason of its/their decisions on a substantial question of law. This provision enables a High Court to decide even an issue of fact in certain circumstances.
PROCEDURE AT HEARING
The provisions relating to first appeals shall apply to second appeals also. (O. 42. R. 1. Procedure -The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees.)
Appeals pending before the date the Amendment Act came into force
The right of appeal is a substantive right and is not merely a matter of procedure. Moreover, institution of a suit carries with it a right of appeal which is a vested right and such right is governed by the law prevailing at the date of filing of the suit or proceeding and it cannot be abrogated or curtailed by a subsequent legislation.
On the above analogy, the right of second appeal which accrued in favour of the appellant on the date of filing of the suit cannot be restrictedor narrowed down by the Amendment Act of 1976 by which Section 100 was amended.
However, with a view to remove doubts, Section 97 of the Amendment Act, 1976 relating to “Repeal and Saving” clarifies that the provisions of the new Section 100 will not affect any second appeal admitted before the date the Amendment Act came into force.
General Principles regarding Second Appeal
The following general principles can be deduced regarding second appeals:
1. A second appeal lies in the High Court.
2. Such an appeal is maintainable only on a substantial question of law alone;
3. An appeal lies also against an ex parte decree;
4. No second appeal lies except on rounds mentioned in Section 100, i.e., except on a substantial question of law. Thus, no appeal can be filed on a question of fact, question of law, or mixed question of fact and law;
5. No second appeal lies in a money decree, where the amount does not exceed Rs 25,000;
6. The memorandum of appeal must state substantial question of law;
7. The High Court should formulate a substantial question of law while admitting an appeal;
8. The High Court, however, has power to hear the appeal on other substantial question of law not formulated by it at the admission stage by recording reasons;
9. At the hearing the respondent can argue that such question does not involve the appeal
10. A substantial question of law does not mean a question of general importance but a question arising between the parties to the appeal;
11. In certain circumstances, a High Court can also decide an issue of fact;
12. Procedure at the hearing will be the same as that of the first appeal;
13. No Letters Patent Appeal lies against the decision in the second appeal;
14. The provisions of the Amendment Act of 1976 do not apply to second appeals already admitted prior to the amendment and pending for hearing.
SECOND APPEAL AND REVISION
A second appeal lies to the High Court on the ground of a substantial question of law, while a revision lieson a jurisdictional error. Revisional powers of the High Court can be invoked only in those cases wherein no appeal lies. A second appeal can be filed against a decree passed by a first appellate court. While exercising revisional jurisdiction, the High Court cannot interfere with the an order passed by a subordinate court, if it is within the jurisdiction of such court, even if it is legally wrong. But the High Court can interfere with the decree passed by the first appellate court if it is contrary to law. Finally, the High Court may refuse to interfere in revision if it is satisfied that substantial justice has been done.In second appeal, however, the High Court has no discretionary power and it cannot decline to grant relief on equitable grounds.