Appeals from Appellate Decrees

In one line

A second appeal lies to the High Court only where the case involves a substantial question of law, and the High Court must formulate that question before hearing it.

Why the second appeal is so much narrower

By the time a case reaches a second appeal the facts have been examined twice: once at trial and once on a full rehearing in first appeal. A third look at the same evidence would add delay without adding accuracy, and it would turn the High Court into a second trial court for every small dispute in the State.

So the Code draws a line. Facts stop at the first appeal. The High Court comes in only where something has gone wrong in law, and only where that question is substantial.

This is the single most important contrast in the appeals chapters, and an answer that does not draw it has missed the point of section 100.

The provision: section 100

Section 100(1): save as otherwise expressly provided by the Code or any other law 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.

Section 100(2): an appeal may lie under this section from an appellate decree passed ex parte.

Section 100(3): in an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved.

Section 100(4): where the High Court is satisfied that a substantial question of law is involved, it shall formulate that question.

Section 100(5): the appeal shall be heard on the question so formulated, and the respondent shall at the hearing be allowed to argue that the case does not involve such question. The proviso preserves a power: nothing in the sub-section takes away the Court's power to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if satisfied that the case involves such a question.

Take the sequence in sub-sections (3), (4) and (5) as a procedure, because that is what it is.

The appellant must state the question precisely. A memorandum that merely complains about the findings does not comply.

The Court must formulate it. This is a judicial act, not a formality. If the Court is not satisfied that a substantial question of law arises, the appeal fails at that stage.

The hearing is confined to the formulated question, and the respondent may argue that no such question arises at all. The proviso then allows the Court to go outside the formulated question, but only on recorded reasons and only for another substantial question of law.