Code of Civil Procedure, 1908 (CPC)
First Appeal and Second Appeal Distinguished
A first appeal under Section 96 of the Code of Civil Procedure, 1908 carries the whole case upwards: the appellate court may reappreciate the entire evidence and reach its own findings of fact. A second appeal under Section 100 carries one question out of it, and only if that question is a substantial question of law, which the memorandum must state and the High Court must formulate. These notes compare the two, and set out what survives the narrowing and what does not.
What each appeal carries up
1. The Two Provisions
§ Section 96 and Section 100 (in substance) Section 96(1). Save where otherwise expressly provided, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. Section 100(1). Save as otherwise expressly provided, 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. Section 100(3), (4) and (5). The memorandum shall precisely state the substantial question of law; where satisfied, the High Court shall formulate that question; and the appeal shall be heard on the question so formulated, the respondent being allowed to argue that no such question arises. |
2. The Two Compared
Basis | First appeal, Section 96 | Second appeal, Section 100 |
|---|---|---|
From what | A decree of a court exercising ORIGINAL jurisdiction | A decree passed IN APPEAL by a court subordinate to the High Court |
To what court | The court authorised to hear appeals from that court | The High Court |
Scope | A REHEARING on fact and law; the whole evidence may be reappreciated | Only a SUBSTANTIAL QUESTION OF LAW |
Threshold | None beyond a decree and a right conferred by statute | The High Court must be satisfied that the case involves a substantial question of law |
The memorandum | Grounds concisely under distinct heads, without argument or narrative: O. XLI R. 1(2) | In addition, it must PRECISELY STATE the substantial question of law |
Formulation | Not required | s. 100(4): the High Court shall formulate the question, and the appeal is heard on it |
Findings of fact | May be reversed on a reappreciation of the evidence | Not disturbed, unless vitiated by no evidence, ignored evidence, inadmissible evidence, or perversity |
Additional evidence | O. XLI R. 27, in the three situations that rule allows | The same rule applies through O. XLII R. 1, but is rarely invoked |
The respondent | May support the decree and file cross-objections under O. XLI R. 22 | May in addition argue that the case involves no substantial question: s. 100(5) |
Bars | s. 96(3): no appeal from a consent decree; s. 96(4): none on facts in small causes below the value | s. 102: none where the original suit was for money not exceeding twenty-five thousand rupees; s. 100A: none from a single judge's decision in appeal |
3. What Survives the Narrowing
§ The four situations in which a finding of fact is still open • No evidence at all. A finding resting on nothing is an error of law, because a court cannot find a fact out of nothing. • Relevant evidence ignored. A finding reached by omitting from consideration material evidence on the record is vitiated, the court not having performed the exercise the law requires. • Inadmissible evidence relied on. A finding resting on evidence the law forbids the court to consider is an error of law. • Perversity. A finding no reasonable person, acting judicially on the material, could have reached. This is narrow, and re-arguing the evidence under that label does not satisfy it. • And Section 103. Where the evidence on record is sufficient, the High Court may itself determine an issue not determined by the courts below, or wrongly determined by reason of a decision on a substantial question of law. It is a power to avoid a remand, not to retry the facts. |
4. The Two Tests for a Substantial Question of Law
§ What makes a question substantial Is it debatable? Not already settled by the law of the land or by binding precedent, and of sufficient difficulty that more than one view is possible. A question concluded by authority is not substantial however important it may be. Is it material? Does it directly and substantially affect the rights of the parties, so that the answer would change the outcome? A question that would not alter the result does not sustain a second appeal. It need not be of general importance. That is the higher threshold for a certificate under Article 133 to appeal to the Supreme Court. For Section 100 it is enough that the question is substantial as between the parties. |
5. Landmark Points
- Section 96. An appeal lies from every decree of a court exercising original jurisdiction, subject to Section 96(3) and (4).
- The first appellate court is the last court of fact, and may reappreciate the whole evidence.
- Section 100(1), (3) and (4). A second appeal lies only on a substantial question of law, precisely stated in the memorandum and formulated by the High Court.
- Section 100(5). The appeal is heard on the question formulated, and the respondent may argue that no such question arises.
- Concurrent findings of fact are not disturbed, unless vitiated by no evidence, ignored evidence, inadmissible evidence or perversity.
- Sections 102 and 100A. No second appeal in money suits not exceeding twenty-five thousand rupees, and no further appeal from a single judge's decision in appeal.
6. Frequently Asked Questions
What is the main difference between a first and a second appeal?
A first appeal is a rehearing on fact and law, in which the whole evidence may be reappreciated. A second appeal lies only on a substantial question of law, which the memorandum must precisely state and the High Court must formulate before hearing the appeal on it.
Can the High Court reappreciate evidence in a second appeal?
No. Findings of fact are for the trial court and the first appellate court, which is the last court of fact. Interference is possible only where a finding is vitiated by an error of law, such as no evidence, ignored evidence, inadmissible evidence or perversity.
Must the substantial question of law be formulated?
Yes. Section 100(4) requires the High Court, where satisfied that a substantial question of law is involved, to formulate that question, and by Section 100(5) the appeal is heard on the question so formulated.
Can the High Court hear the appeal on another question?
Yes, but only by the proviso to Section 100(5), for reasons to be recorded, if it is satisfied that the case involves another substantial question of law not formulated by it.
What makes a question of law substantial?
That it is debatable and not already settled by authority, and that it is material, in the sense that it directly and substantially affects the rights of the parties so that the answer would change the outcome. It need not be of general importance.
When does no second appeal lie at all?
Under Section 102, where the subject matter of the original suit was for the recovery of money not exceeding twenty-five thousand rupees; and under Section 100A, from a judgment and decree of a single judge of a High Court in an appeal.
7. Related Topics in This CPC Series
- First Appeals: Sections 96 to 99A and Order XLI
- Second Appeals: Sections 100 to 103 and Order XLII
- Issue of Fact and Issue of Law Distinguished
- Appeals to the Supreme Court: Sections 109 to 112 and Order XLV