Second appeals as per the Civil Procedure Code
Meaning of second appeals as per the Civil Procedure Code.

Second appeals are dealt with in sections 100 to 103 and Order 42 of the Civil Procedure Code, 1908.

Section 100 of the Civil Procedure Code (CPC) allows for the filing of second appeals in the High Court if the High Court determines that the case involves a substantial question of law.

The 1976 Amendment Act amended section 100 of the Civil Procedure Code. Such appeal also lies against an ex-parte decree passed by the appellate court.

When the High Court is satisfied that the case involves a substantial question of law, it may hear the appeal on the formulated question. The question must be stated in the memorandum of appeal.

Must See: Civil Appeal or First Appeal as Per the Civil Procedure Code

Substantial Question of Law

The phrase “substantial question of law” has not been defined in the Civil Procedure Code. No universally applicable rule can be formulated to determine when a substantial question of law has arisen.

The English meaning of the word substantial is “of considerable importance.”

The Supreme Court stated in Chunilal V Mehta and Sons Ltd vs Century Spinning. & Mfg. Co. Ltd (1962) that the proper test for determining whether a question of law raised in the case is substantial would be whether it is of general public importance or whether it directly and substantially affects the rights of the parties.

At the same time, it should be noted that to invoke the jurisdiction of the High Court under section 100 of CPC, the substantial question of law does not have to be of general importance.

In Raghunath Prasad Singh vs the Deputy Commissioner of Pratapgarh (1929), the court stated that a substantial question of law means a substantial question of law as between the parties in the case at hand.

The court observed in Mahant Har Kishan Das vs Satgur Prasad (1951) that a question of law is substantial as between the parties if the decision turns one way or the other on the particular view of the law. If it does not affect the decision, it cannot be said to be substantial as between the parties.

Hearing of Appeal

The Code (section 100(5)) expressly states that the appeal shall be heard solely based on the question formulated.

Bar on Second Appeal

Section 101 of the Civil Procedure Code states that a second appeal may be filed only on the grounds specified in the Code. Section 102 of the Civil Procedure Code states that no second appeal is permitted in any suit where the subject matter of the original suit for money recovery does not exceed Rs 25000.

Limitation for Second Appeal

A second appeal may be filed with a High Court within 90 days of the date of the decree under appeal. (Article 116 of Limitation Act, 1963)

Procedure at Hearing

The provisions governing the first appeal apply to the second appeal as well.

Power of the High Court to Decide the Issue of Fact

Though no second appeal lies on a question of fact, if 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:

  • has not been determined either by the trial court or by the appellate court or both,
  • has been incorrectly determined by such court or courts because of its/their decisions on the substantial question of law.

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