Second appeals: prerequisites and manner of consideration

Introduction

Under Code of Civil Procedure, in a first appeal[1] arising from original decree, the appellate court is required to deal with all the issues and the evidence of the case, so as to either interfere with or confirm the original decree. It can also correct a wrong application of law. Thus, the first appeal has to be decided on facts as well as on law[2]. The first appellate court is regarded as the final Court of fact.

From a decree passed in appeal by any Court subordinate to the High Court, normally a second appeal lies to the High Court.[3] Unlike first appeals, the Second Appeals allow a restricted scope of consideration. This write up examines the confines of a second appeal.

Prerequisite of existence of substantial question of law

A Second Appeal can be entertained only if a substantial question of law is found to exist[4]. In absence of a substantial question of law the second appellate court will not get jurisdiction to interfere with the judgment in first appeal.

Understanding 'substantial question of law'

It is not merely a 'question of law', but a 'substantial' question of law that confers jurisdiction for entertaining Second Appeal. 'Substantial' does not refer to the stakes involved in the matter[5].

Constitution Bench of Supreme Court[6] explaining the purport of Substantial question of law, albeit in context of Article 133(1)(a) of the Constitution, stated:

'The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, 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. 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.'

A 'substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. Any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law[7].

Further where there is a clear and settled enunciation on a question of law, by Supreme Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. Thus a substantial question of law arises when a question of law, which is not finally settled by Supreme Court or by the High Court concerned, arises for consideration in the case. Explaining this supreme Court[8] has held:

'Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the High Court concerned), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the High Court concerned) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this Court (or the High Court concerned) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two viewpoints, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case.'

Applying the above principle, the following have been held to involve substantial question of law:

1. Interpretation of any terms and conditions of the document[9] or construction of a document involving application of any principle of law.[10]
2. Assumption of jurisdiction by the first appellate court which did not vest in it.[11]
3. Failure to consider materials on a vital issues and non-consideration of vital issues.[12]

The following have been held not to constitute substantial question of law:

1. Possibility of a different opinion based on re-appreciation of evidence on record[13].
2. Mere wrong application of a point on law to the facts of the case[14].
3. An entirely new point raised for the first time before the Second Appellate Court unless it goes to the root of the matter[15].
4. An inference of fact from recital or contents of the document[16].
5. Whether the property in dispute is a joint Hindu family property[17]

Second appeal on question of facts

In second appeal the Court cannot disturb the finding of the court below by re-appreciating the evidence on record.[18] . A second appeal may however be entertained on a question of fact if the findings of the courts below were vitiated by non-consideration of relevant facts or by showing erroneous approach to the matter[19]. Following are the two situations in which a substantial question of law can arise warranting interference with findings of fact[20]:

i) When material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion.

ii) 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.

The procedure and stage for formulating the question of law.

The procedure relating to second appeals[21] requires the following[22]:

(a) The appellant should set out in the memorandum of appeal the substantial questions of law involved in the appeal.

(b) The High Court should entertain the second appeal only if it is satisfied that the case involves a substantial question of law.

(c) While admitting or entertaining the second appeal, the High Court should formulate the substantial questions of law involved in the case[23]. Formulation of substantial question of law is a sine qua non for exercise of jurisdiction under Section 100 CPC admits of no ambiguity and permits no departure[24]. Mere reference to the grounds as stated in the memorandum of second appeal would not satisfy this mandate[25]. Proceeding to hear the appeal without formulating the substantial question of law involved in the appeal is illegal and is an abdication of the duty cast on the Court[26].

(d) The second appeal shall be heard on the question(s) of law so formulated and the respondent can submit at the hearing that the second appeal does not in fact involve any such questions of law. After the formulation of the substantial question of law, if a fair or proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice.[27] The appellant cannot urge any ground other than the substantial question of law without the leave of the Court.

(e) The High Court is at liberty to reformulate the substantial questions of law or frame other substantial question of law, for reasons to be recorded and hear the parties on such reformulated or additional substantial questions of law. The Court should not ordinarily frame a substantial question of law at a subsequent stage without assigning any reason therefor and without giving a reasonable opportunity of hearing to the respondents.[28] Formulation of a substantial question of law while dictating the judgment in open court without putting the parties to notice and affording them opportunity to meet the same, is not proper[29].

Summation

A second appeal has limited scope of consideration. It can be heard only if substantial question of law arises; the same is formulated at the stage contemplated; and parties are afforded opportunity in the matter. The decision in second appeal cannot go beyond the answer to the substantial question of law.

[1] Section 96 of the Code of Code of Civil Procedure
[2] Pl see H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243) and B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530
[3] Section 100 of the Code of Code of Civil Procedure
[4] Section 100(1) and (4) of the Code of Code of Civil Procedure
[5] SBI v. S.N. Goel (2008) 8 SCC 92
[6] Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd., 1962 Supp (3) SCR 549
[7] SBI v. S.N. Goel (2008) 8 SCC 92
[8] SBI v. S.N. Goyal, (2008) 8 SCC 92
[9] Rajendra Lalit Kumar Agarwal v. Ratna Ashok Muranjan (2019) 3 SCC 378
[10] Hero Vinoth v. Seshammal (2006) 5 SCC 545
[11] Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722
[12] Hanuman Laxman Aroskar v. Union of India 2019 SCC OnLine SC 441
[13] Gurnam Singh & Ors. V. Lenha Singh (2019) SCC OnLine SC 374
[14] Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722
[15] Santosh Hazari v. Purushotham Tiwari (2001) 3 SCC 179
[16] Hero Vinoth v. Seshammal (2006) 5 SCC 545
[17] Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC 287
[18] Muslim Jamath of Eachampatti v. Rahamtullah Shuttari, (2005) 10 SCC 160
[19] Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 and Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC 287
[20] Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434
[21] Section 100 read with Order 42 Rules 1 and 2 of the Code of Civil Procedure
[22] SBI v. S.N. Goyal, (2008) 8 SCC 92
[23] See however M.S.V. Raja v. Seeni Thevar, (2001) 6 SCC 652 wherein it was held that having regard to the questions that were considered and decided by the High Court, it could not be said that substantial questions of law did not arise for consideration and they were not formulated; even if substantial questions of law were not specifically and separately formulated.
[24] Hardeep Kaur v. Malkiat Kaur, (2012) 4 SCC 344. However the requirement may be diluted by special state law as held in KIRODI (SINCE DECEASED) THROUGH HIS LR. Appellant (s) VERSUS RAM PARKASH & ORS. arising out of CIVIL APPEAL NO. 4988 OF 2019
[25] K. K. Kannan (D) by L.Rs. Vs. Koolivathukkal Karikkan Mandi and Ors. -JT2009(15)SC441: MANU/SC/1985/2009
[26] Hari Singh Vs. Kanhaiya Lal- (1999)7SCC288
[27] ibid
[28] Nune Prasad and Ors. v. Nune Ramakrishna MANU/SC/7882/2008; Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors. MANU/SC/0243/1997; and Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors. MANU/SC/0647/1997
[29] Virupakshaiah Vs. Sarvamma and Anr.- MANU/SC/8525/2008 and Sayed Muhammed Mashur Kunhi Koya Thangal
Vs. Badagara Jumayath Palli Dharas Committee and Ors. (2004)7SCC708