SECOND APPEAL: OBLIGATORY FOR HC TO FRAME SUBSTANTIAL QUESTION OF LAW

Section 100(1) of Civil Procedure Code, 1908- 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.
In Sreedevi & Ors V. Sarojam & Ors CA no.1301 of 2019, The Supreme Court has observed that it is obligatory for a High Court, while considering a Second Appeal, to frame substantial question of law in second appeal even if lower courts’ findings are perverse per se.
The bench comprising Justice AM Khanwilkar and Justice Ajay Rastogi set aside a Kerala High Court order, on the ground that it decided the Second Appeal without formulating any substantial question of law.
“Even on a fair reading of the judgment, we are of the considered opinion that the High Court proceeded to decide the Second Appeal without formulating any substantial question of law, which it ought to have done in view of the mandate of Section 100 of the Code of Civil Procedure, 1908 and the consistent view taken by this Court including in 2012 (4) SCC 344 – Hardeep Kaur Vs. Malkiat Kaur. For this singular reason, we are inclined to set aside the impugned judgment.”

What is Substantial Question of Law?
A Second Appeal can only be entertained if it involves a substantial question of law. The expression is not defined in the Code, however, the Supreme Court in Sir Chunilal V. Mehta And Sons, Ltd. vs The Century Spinning And Manufacturing Co., Ltd. laid down that “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 call for discussion of alternative views.” To be a ‘substantial’ question of law, the same should be debatable, not have been previously determined by the lower courts and should not be an applicable precedent in any form. Whether the question of law is ‘substantial’ or not is to be decided by the High Court and that may depend upon the facts and circumstances of each case. The proviso to Section 100(5) gives the court the power to hear questions which were not formulated by it but they form a part of the substantial question of law if the court is satisfied that case involves such a question. In Mahindra & Mahindra Ltd. v. Union of India & Anr, the court observed that “Under the proviso, the Court should be ‘satisfied’ that the case involves a substantial question of law and not a mere question of law. The reason for permitting the substantial question of law to be raised should be recorded by the Court.”

No second appeal in certain suits
Section 102 reads as – No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees.”
To sum up the right to appeal arises as soon as the judgment is pronounced by a competent court. It is not essential that such right is given only to the party on whom an adverse decision is pronounced but is applicable to both parties equally. Thus, the right to appeal is vested on the parties as soon as the proceedings begin and arises when a judgment is pronounced.
It can be summarized that the law can at most extent be applicable to cases involving a substantial question of law and it becomes the responsibility of the appellate court to formulate such a question after referring to the memorandum of appeal submitted by the appellant.

By-
Abhinav Jassal
Student Reporter- INBA