Code of Civil Procedure, 1908 (CPC)
Second Appeals: Sections 100 to 103 and Order XLII CPC
By the time a case reaches a second appeal, the facts have been found once and reviewed once. Section 100 of the Code of Civil Procedure, 1908, as recast in 1976, therefore lets almost nothing through: an appeal lies to the High Court only if the case involves a substantial question of law, which the memorandum must state and the court must formulate, and the appeal is then heard on that question alone. These notes cover the meaning and tests of a substantial question of law, the treatment of concurrent and perverse findings, the bar in Section 102, and the residuary power in Section 103.
What the second appeal sieve catches, what passes through it, and what happens then
1. Section 100: The Provision
§ Section 100, CPC 1908 (in substance) (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. (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: 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. |
§ What the 1976 amendment changed Three things, and each is examinable: • Before 1976, a second appeal lay on three grounds: a decision contrary to law or to some usage having the force of law, a failure to determine some material issue of law or usage, and a substantial error or defect in procedure which may possibly have produced error or defect in the decision on the merits. • After 1976, all three were replaced by the single requirement of a substantial question of law, and the formulation requirement in sub-sections (3) and (4) was added, so that the scope of the appeal is fixed before it is heard. • The purpose was to stop second appeals being used to reopen findings of fact under the guise of procedural error, and to confine the High Court's civil appellate jurisdiction to questions that genuinely need its attention. |
2. Substantial Question of Law: Meaning and Tests
§ The working tests The expression is not defined, and the settled approach asks two things of the question: Is it substantial? That is, is it debatable, not previously settled by the law of the land or by a binding precedent, and is it of sufficient difficulty that there is room for more than one view? A question already concluded by authority is not substantial, however important it may be in the abstract. Is it material? That is, does it directly and substantially affect the rights of the parties in the case, so that the answer would make a difference to the outcome? A question that would not change the result, however interesting, does not sustain a second appeal. The question need not be one 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. |
Is it a substantial question of law? | Answer | Why |
|---|---|---|
Whether a document has been correctly construed | Usually yes | The construction of a document is a question of law, and an erroneous construction that affects the result can be corrected |
Whether a finding is supported by any evidence at all | Yes | A finding resting on no evidence is an error of law, not a disagreement about facts |
Whether the lower court applied a wrong legal test | Yes | The choice of the legal standard is a question of law |
Whether a witness should have been believed | No | Credibility is a pure question of fact, and the first appellate court is the last court of fact |
Whether the evidence was sufficient to prove a fact | No | The weight and sufficiency of evidence are questions of fact |
Whether a question already settled by binding precedent was correctly applied | No, if the application was routine | The question is not debatable, so it is not substantial |
Whether a finding is perverse | Yes | Perversity is treated as an error of law, as explained below |
3. Concurrent Findings and Perverse Findings
§ Concurrent findings of fact Where the trial court and the first appellate court have both reached the same finding of fact, the High Court in second appeal does not disturb it, however arguable the contrary view may be. The reason is structural rather than deferential. Facts are found once, on the evidence, and reviewed once, on the whole record. A third look would give no better answer and would make litigation endless. So a second appellant who says only that the finding was wrong has said nothing that Section 100 recognises. He must show that the finding is vitiated by an error of law. |
§ When a finding of fact does become a question of law Four recognised situations: • No evidence at all. A finding resting on no evidence 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, because the court has not performed the exercise the law requires. • Inadmissible evidence relied on. A finding that rests on evidence which the law forbids the court to consider is equally an error of law. • Perversity. A finding is perverse where no reasonable person, acting judicially on the material before the court, could have reached it. Perversity is treated as an error of law precisely because it is not a mere difference of opinion about the evidence but a departure from the judicial exercise altogether. |
Two cautions go with this. The perversity ground is narrow, and an appellant who simply re-argues the evidence under that label does not satisfy it. And even where the ground is made out, the High Court must still formulate the question under Section 100(4) and hear the appeal on it; it cannot reappreciate the evidence at large on the strength of an allegation of perversity.
4. Section 100 Compared with Section 96
Basis | First appeal, Section 96 | Second appeal, Section 100 |
|---|---|---|
From what | A decree passed by a court exercising original jurisdiction | A decree passed in appeal by a court subordinate to the High Court |
Scope | A rehearing on FACT AND LAW; the whole evidence may be reappreciated | Only a SUBSTANTIAL QUESTION OF LAW; no reappreciation of evidence |
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 |
What the memorandum must state | Grounds of objection, concisely and under distinct heads, without argument or narrative | In addition, it must PRECISELY STATE the substantial question of law involved |
Formulation | None required | Section 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 |
The respondent's answer | He supports the decree, and may file cross-objections | He may in addition argue at the hearing that the case involves no such question: Section 100(5) |
5. The Two Bars and the Residuary Power
§ Section 102: the value bar No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees. The section was recast by the Amendment Act of 2002; before that it excluded second appeals in suits of a nature cognisable by Courts of Small Causes below a prescribed value. The policy is proportionality: the cost and delay of a second appeal are not justified by a small money claim, however arguable the legal question. |
§ Section 100A: no further appeal from a single judge Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law, 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 and decree of such single Judge. The section, in its present form from 2002, abolished the intra-court letters patent appeal in these cases, so a decision of a single judge in a first or second appeal is final so far as the High Court is concerned. |
§ Section 103: the High Court may determine an issue of fact In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal — (a) which has not been determined by the lower appellate court or by both the courts below; or (b) which has been wrongly determined by such court or courts by reason of a decision on a substantial question of law as is referred to in Section 100. The section is an exception that proves the rule. It does not entitle the High Court to reappreciate the evidence generally; it allows it, where the record already contains sufficient evidence, to decide an issue rather than remanding the case, and only in the two situations named. It is a power to avoid a remand, not a licence to retry the facts. |
6. Procedure: Order XLII
Order XLII Rule 1 provides that the rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees. The machinery of the first appeal therefore carries over: the memorandum and its grounds, stay of execution under Rule 5 with its three conditions, summary dismissal under Rule 11, cross-objections under Rule 22, additional evidence under Rule 27 in the narrow situations that rule allows, the contents of the judgment under Rule 31, and the power under Rule 33 to pass any decree the case requires. Order XLII Rule 2 adds that at the hearing of an appeal, the High Court may, if it thinks fit, determine any issue necessary for the disposal of the appeal which has not been determined by the lower appellate court or has been wrongly determined by reason of a decision on a substantial question of law, which is the procedural counterpart of Section 103.
7. Landmark Points
- Section 100(1). A second appeal lies to the High Court only if it is satisfied that the case involves a substantial question of law.
- Section 100(3) and (4). The memorandum must precisely state the question, and the High Court shall formulate it.
- Section 100(5) with its proviso. The appeal is heard on the formulated question, the respondent may argue that no such question arises, and the court may for reasons recorded hear the appeal on another substantial question not formulated by it.
- The two tests. The question must be debatable and not settled by authority, and material to the rights of the parties in the case.
- Concurrent findings of fact are not disturbed, unless vitiated by no evidence, ignored evidence, inadmissible evidence, or perversity.
- Section 102. No second appeal where the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.
- Section 100A. No further appeal from a judgment and decree of a single judge of a High Court in an appeal.
- Section 103 with Order XLII Rule 2. Where the evidence on record is sufficient, the High Court may itself determine an issue not determined, or wrongly determined by reason of a decision on a substantial question of law.
8. Frequently Asked Questions
When does a second appeal lie under Section 100?
From a decree passed in appeal by a court subordinate to the High Court, and only if the High Court is satisfied that the case involves a substantial question of law. The memorandum must precisely state the question, and the court must formulate it before hearing the appeal on it.
What makes a question of law substantial?
That it is debatable and not already settled by the law of the land or by binding precedent, and that it is material, that is, it directly and substantially affects the rights of the parties so that the answer would change the outcome. It need not be a question of general importance.
Can the High Court reappreciate evidence in second appeal?
No. Findings of fact are for the trial court and the first appellate court, which is the last court of fact. The High Court may interfere only where the finding is vitiated by an error of law, as where it rests on no evidence, ignores material evidence, relies on inadmissible evidence, or is perverse.
What is a perverse finding?
A finding that no reasonable person, acting judicially on the material before the court, could have reached. It is treated as an error of law because it represents a departure from the judicial exercise rather than a difference of opinion about the weight of evidence.
Are concurrent findings of fact ever disturbed?
Only where they are vitiated in one of the recognised ways. The mere fact that the High Court might have taken a different view of the evidence is not a ground, since the facts have already been found once and reviewed once.
What does Section 102 bar?
A second appeal from any decree where the subject matter of the original suit is for the recovery of money not exceeding twenty-five thousand rupees. The bar rests on proportionality: the cost and delay of a second appeal are not justified by a small money claim.
Can the High Court decide a question of fact in second appeal?
Only under Section 103, and only where the evidence on the record is sufficient. It may then determine an issue that was not determined by the courts below, or that was wrongly determined by reason of a decision on a substantial question of law. The power exists to avoid a remand, not to retry the facts.
Does an appeal lie from a single judge's decision in second appeal?
No. Section 100A provides that where an 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, notwithstanding anything in any Letters Patent.
9. Related Topics in This CPC Series
- First Appeals: Sections 96 to 99A and Order XLI
- Appeals to the Supreme Court: Sections 109 to 112 and Order XLV
- Appeals from Orders: Sections 104 to 106 and Order XLIII
- Reference, Review and Revision under the CPC