Appeals from Appellate Decrees

What "substantial question of law" means

The Code does not define it, and no case is cited for it here because none has been verified into the case bank. What can safely be said is what follows from the words themselves and from settled practice.

A question of law is substantial where it is of general importance, or where it directly and substantially affects the rights of the parties and is not already concluded by authority. It is not substantial where the point is well settled and the court below merely applied it, even if it applied it wrongly on the facts.

The distinction that matters for an exam is between a question of law and a question of fact. Whether a document was executed, whether a witness is believable, and what a party actually did are questions of fact and end with the first appeal. Whether the facts found amount in law to a particular relationship, or whether a provision applies to those facts, is a question of law.

No second appeal at all: section 102

Section 102: 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.

That is an absolute bar by value, and it does not depend on whether a substantial question of law arises. Learn the figure.

Findings of fact: sections 101 and 103

Section 101: no second appeal shall lie except on the ground mentioned in section 100. The section exists to shut the door that litigants keep trying to reopen: there is no residuary ground.

Section 103 is the qualification, and it is often forgotten. 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 question of law referred to in section 100.

So section 103 does not let the High Court re-open concurrent findings of fact at large. It lets it decide an issue that was never decided, or one that went wrong because of the very error of law the second appeal is about. Both limbs are tied back to section 100.

First appeal against second appeal

This table is the answer to the commonest question on the topic.

Notice that the two money bars are different in kind as well as amount. Section 96(4) restricts the ground; section 102 removes the appeal.

Procedure: Order XLII

Order XLII Rule 1: the rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees.

So the machinery is the same: memorandum, grounds stated concisely under distinct heads, stay only on the Rule 5 conditions, cross-objections, remand, additional evidence on the restricted grounds, and the powers in Rule 33. See [Appeals from Original Decrees].

Order XLII Rule 2 requires the High Court, at the time of making an order under Order XLI Rule 11 admitting the appeal, to formulate the substantial question of law as required by section 100, and gives the appellant the opportunity to be heard on the question of admission.

A worked example

Hema sues Irfan and loses. Her first appeal to the District Court is dismissed. She wants to go to the High Court.

Does a second appeal lie? Only if the case involves a substantial question of law, under section 100(1).

Her complaint is that the District Judge believed Irfan's witnesses. That is a question of fact, and it ends with the first appeal. No second appeal lies on it.

Her complaint is that the courts below applied the wrong statutory provision to the admitted facts. That is a question of law, and if it is substantial the appeal lies.

What must her memorandum say? Section 100(3): it must precisely state the substantial question of law involved. A general complaint will not do.

What does the High Court do? Section 100(4): if satisfied that a substantial question of law is involved, it shall formulate that question, and under Order XLII Rule 2 it does so when admitting the appeal.

At the hearing. Section 100(5): the appeal is heard on the formulated question, and Irfan may argue that the case involves no such question at all.

The High Court spots a different point of law. The proviso to section 100(5): it may hear the appeal on another substantial question not formulated by it, for reasons to be recorded.

An issue was never decided by either court below. Section 103(a): the High Court may determine it if the evidence on record is sufficient.

Change the value. Suppose the original suit was to recover Rs. 20,000. Section 102: no second appeal lies at all, whatever question of law arises.

Change the decree. Suppose the first appellate decree was passed ex parte. Section 100(2): a second appeal still lies.

What it does not mean

A second appeal is not a second look at the facts. Sections 100 and 101 confine it to a substantial question of law.

Every question of law is not substantial. A settled point applied to the facts is not enough.

The Court is not always confined to the formulated question. The proviso to section 100(5) allows another substantial question on recorded reasons.

Section 103 is not a general power over facts. It applies to an issue not determined, or wrongly determined because of the error of law under section 100.

The Rs. 25,000 bar is not about the ground. It removes the second appeal altogether in money suits at or below that value.

No appeal from a single judge sitting in appeal: section 100A

Section 100A: notwithstanding anything contained in any Letters Patent for any High Court, or in any instrument having the force of law, or in any other law for the time being in force, 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 that Single Judge.

That is the provision which closed the old letters patent appeal in this situation, and it is the answer whenever a problem has a single judge of a High Court deciding an appeal and a party asking what comes next: nothing, in that Court. See [Chartered High Courts and Small Cause Courts] for the letters patent jurisdiction generally, and [Appeals to the Supreme Court] for what remains.

Read it with section 108, which applies the first-appeal machinery to appeals from appellate decrees, so the powers in section 107 are available here too. See [Appeals from Original Decrees].

Quick revision

Section 100(1): second appeal to the High Court from a decree passed in appeal by a subordinate court, only if the case involves a substantial question of law. (2) available against an ex parte appellate decree. (3) the memorandum must precisely state the question. (4) the High Court shall formulate it. (5) the appeal is heard on that question, the respondent may argue no such question arises, and the Court may take another substantial question for reasons recorded.

Section 101: no second appeal except on the section 100 ground. Section 102: no second appeal where the original suit was for recovery of money not exceeding Rs. 25,000. Section 103: the High Court may determine an issue not determined below, or wrongly determined by reason of the error of law, if the evidence on record is sufficient.

Order XLII: Order XLI applies so far as may be, and the question is formulated at the admission stage.

Test yourself

1. When does a second appeal lie? Under section 100(1), to the High Court from every decree passed in appeal by a court subordinate to it, if the High Court is satisfied that the case involves a substantial question of law.

2. What must the memorandum of second appeal contain? It must precisely state the substantial question of law involved in the appeal: section 100(3).

3. What is the role of the formulated question? Where the High Court is satisfied that a substantial question of law is involved it shall formulate that question, and the appeal shall be heard on the question so formulated, the respondent being allowed to argue that the case does not involve it. The Court may nevertheless hear the appeal on any other substantial question of law not formulated by it, for reasons to be recorded.

4. Is there any suit in which no second appeal lies at all? Yes. Under section 102 no second appeal lies from any decree where the subject matter of the original suit is for the recovery of money not exceeding twenty-five thousand rupees.

5. Can the High Court in second appeal decide an issue of fact? Only within section 103, and only if the evidence on record is sufficient: an issue which has not been determined by the lower appellate court or by both courts below, or which has been wrongly determined by reason of a decision on a question of law referred to in section 100.

6. Give three differences between a first and a second appeal. A first appeal lies from a decree of a court of original jurisdiction and a second from a decree passed in appeal. A first appeal is a rehearing on both facts and law, while a second appeal lies only on a substantial question of law which the High Court must formulate. And in money suits, section 102 bars a second appeal altogether up to twenty-five thousand rupees, whereas section 96(4) merely restricts a first appeal to questions of law in small-cause-type suits up to ten thousand rupees.