CIVIL PROCEDURE

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Scope of High Court's Jurisdiction Under Section 100 of the Civil Procedure Code, 1908*
by Dr R. Prakash

Cite as : (2003) 5 SCC (Jour) 27

Section 100 of the Code of Civil Procedure, 1908 provides for a second appeal to the High Court from an appellate decree. There is no vested right of appeal unless the statute so provides. If a statute provides for a condition precedent to be satisfied before a court can exercise its appellate jurisdiction, the court is under obligation to satisfy itself whether the condition prescribed is fulfilled. Exercise of the appellate jurisdiction without the fulfilment of the statutory mandate would be without jurisdiction and therefore a nullity.

Section 100 CPC reads as follows:

"100. Second appeal.-(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."

Though Section 100 CPC deals with the High Court's jurisdiction in second appeal, it has the effect of declaring that the first appellate court is the final court on facts and the High Court in a second appeal cannot reappreciate evidence or facts unless the case involves a substantial question of law.

Section 100 CPC was amended in 1976 imposing drastic restriction on the High Court's jurisdiction in entertaining a second appeal. Even prior to the 1976 amendment, the first appellate court was treated as the final court of facts by the Privy Council. The High Court had no right to sit in appeal on facts. In Durga Choudhrain v. Jawahir Singh Choudhri2 the Privy Council held thus: (IA p. 127)

"There is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be."3

In Deity Pattabhiramaswamy v. S. Hanymayya4, Subba Rao, J. (as the learned Chief Justice then was) examined the reasons for evolving the practice and strongly criticised the practice of the High Courts in disposing of second appeals without any substantial question of law involved. The learned Judge observed:

"But, notwithstanding such clear and authoritative pronouncements on the scope of the provisions of Section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of second appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public."5

In Dudh Nath Pandey v. Suresh Chandra Bhattasali6 the Supreme Court held that the High Court cannot set aside findings of fact of the first appellate court and come to a different conclusion on reappraisal of evidence while exercising jurisdiction under Section 100 CPC. In Annapoorani Ammal v. G. Thangapalam7 the Supreme Court held that a perusal of Section 100 CPC clearly indicates that the High Court had the jurisdiction to interfere only when a substantial question of law is involved and even then it is expected that such a question shall be so framed although the court is not bound by that question as the proviso indicates.

In Kashibai v. Parwatibai8 the Supreme Court observed as under:

"It may not be out of place to mention that sub-section (1) of Section 100 of the Code of Civil Procedure explicitly provides that 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. Sub-section (4) of Section 100 provides that when the High Court is satisfied that a substantial question of law is involved in any case it shall formulate that question. But surprisingly enough the High Court seems to have ignored these provisions and proposed to reappreciate the evidence and interfere with the findings of fact without even formulating any question of law. It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, based on appreciation of the relevant evidence."9 (emphasis added)

In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor10 it was held that the question whether a finding of fact is against the weight of evidence does not project a question of law, much less a substantial question of law.

What is a substantial question of law?

The test to determine whether a question is a substantial question of law or not was laid down by a Constitution Bench of the Supreme Court in Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd.11 while determining the said expression occurring in Article 133(1) of the Constitution of India. The Supreme Court laid down the test as follows:12

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

The above test laid down by the Supreme Court is to be applied by the High Courts to acquire jurisdiction under Section 100 CPC.

Keeping in view the amendment made in 1976, a High Court can exercise its jurisdiction under Section 100 CPC only on the basis of substantial questions of law which are to be framed at the time of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. A judgment rendered by the High Court under Section 100 CPC without following the aforesaid procedure cannot be sustained.

In M.S.V. Raja v. Seeni Thevar13 it was held by the Supreme Court that the formulation of a substantial question of law may be inferred from the kind of questions actually considered and decided by the High Court in second appeal, even though the substantial questions of law were not specifically and separately formulated. The observations made by the Court in this regard are as follows:

"18. We are unable to accept the argument of the learned Senior Counsel for the appellants that the impugned judgment cannot be sustained as no substantial question of law was formulated as required under Section 100 CPC. In para 22 of the judgment the High Court has dealt with substantial questions of law. Whether a finding recorded by both the courts below with no evidence to support it was itself considered as a substantial question of law by the High Court. It is further stated that the other questions considered and dealt with by the learned Judge were also substantial questions of law. Having regard to the questions that were considered and decided by the High Court, it cannot be said that substantial questions of law did not arise for consideration and they were not formulated. Maybe, substantial questions of law were not specifically and separately formulated. In this view, we do not find any merit in the argument of the learned counsel in this regard."14

To determine the ratio of this case qua Section 100 CPC, the original proposition may be stated as follows:

"The judgments of High Courts in second appeals can be sustained if the judgments consider and decide substantial questions of law without formulating them specifically and separately."

Now if Prof. Wambaugh's reversal test to determine ratio decidendi is applied, the original proposition may be reversed as follows:

"The judgments of High Courts in second appeals cannot be sustained if the judgments consider and decide substantial questions of law without formulating them specifically and separately."

It can be seen that the result of the decision will not be the same after the reversal of the original proposition. If the reversed proposition is applied, the appeal will be allowed. Therefore, the original proposition is the ratio of the case. It is submitted with respect that the ratio of this case is inconsistent with sub-sections (3), (4) and (5) of Section 100 CPC. This decision has the effect of diluting the provisions of Section 100 CPC.

Sub-section (3) of Section 100 imposes a statutory obligation on the appellant in a second appeal to formulate the substantial question of law in the memorandum of grounds of appeal. The proviso to sub-section (5) read with sub-section (4) makes it clear that formulation of substantial question of law is mandatory and if any other substantial question of law arises, the same can be decided without formulating it/them. The proviso to sub-section (5) clearly negates the view taken in M.S.V. Raja case13. It is respectfully submitted that the holding of the Court that "whether a finding recorded by both the courts below with no evidence to support it was itself considered as a substantial question of law by the High Court" does not pass the test laid down by the Constitution Bench of the Supreme Court in Chunilal Mehta case11. It is submitted with respect that the ratio regarding Section 100 CPC in M.S.V. Raja v. Seeni Thevar13 needs reconsideration.

Can the High Court in second appeal interfere with the judgment of the first appellate court on the ground that the first appellate court had not come to close grips with the reasoning of the trial court?

This issue was answered in the negative by the Supreme Court in V. Ramachandra Ayyar v. Ramalingam Chettiar15 In this case, the Supreme Court distinguished the Privy Council's decision in Rani Hemanta Kumari Debi v. Maharaja Jagadindra Nath Roy Bahadur16 wherein the Privy Council observed that it is better that the appellate court whenever it reverses the judgment of the lower court, comes into close quarters with the judgment of the lower court and meets the reasoning therein. This decision was distinguished on the ground that the said observations were made in an appeal from the judgment of a High Court rendered in first appeal. In S.V.R. Mudaliar v. Rajabu F. Buhari17 a two-Judge Bench followed the Privy Council decision in Rani Hemanta Kumari Debi case16 without noticing Ramachandra Ayyar case15. In Arumugham v. Sundarambal18 the Supreme Court overruled S.V.R. Mudaliar case17 and affirmed Ramachandra Ayyar case15 and held that it is open to the first appellate court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on the other side. It was held that it is not permissible for the second appellate court to interfere with such findings of the first appellate court only on the ground that the first appellate court had not come to grips with the reasoning given by the trial court.

The above discussion leads to the following results:

1. Section 100 CPC impliedly declares that the first appellate court is the final court of facts and the High Court has no jurisdiction to interfere with the finding of facts reached by the first appellate court, however gross the error may seem to be.

2. The High Court is not a second court of first appeal under Section 100 CPC.

3. Since an appeal is a creature of a statute, the High Court should satisfy itself about the presence of the substantial question of law before admitting the second appeal. Section 100 CPC does not provide an absolute and automatic right of appeal.

4. A question of law, to be substantial, must satisfy the test laid down by the Supreme Court in Chunilal Mehta case11.

5. If a second appeal is allowed without framing a substantial question of law, the same is liable to be set aside straight away without remanding back to the High Court since an appellant in a second appeal cannot take advantage of his own wrong by not fulfilling the mandatory requirement laid down in sub-section (3) of Section 100 CPC.

6. In view of sub-section (4) of Section 100 CPC substantial question or questions of law must be expressly and specifically formulated by the High Court and the contrary view taken in M.S.V. Raja case13 is not correct.

7. It is not permissible for the High Court to interfere with findings of the first appellate court only on the ground that the first appellate court had not come to close grips with the reasoning given by the trial court.

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*    ML (Gold Medallist), PhD (Constitutional Law), AOR Exam (Gold Medallist), Advocate, Supreme Court. Return to Text

1. 17 IA 122 (PC) Return to Text
2. Reiterated by Subba Rao, J. (as he then was) in Sinha Ramanuja Jeer v. Ranga Ramanuja Jeer, AIR 1961 SC 1720 at p. 1730. Return to Text
3. AIR 1959 SC 57 Return to Text
4. Ibid., at p. 59. See also Karbalai Begum v. Mohd. Sayeed, (1980) 4 SCC 396; E. Mahboob Saheb v. N. Sabbarayan Chowdhary, (1982) 1 SCC 180 at pp. 184, 185. Return to Text
5. (1986) 3 SCC 360 at pp. 362, 363. See also Ramaswamy Kalingaryar v. Mathayan Padayachi, 1992 Supp (1) SCC 712; National Insurance Co. Ltd. v. State Bank of India, (1993) 2 SCC 673. Return to Text
6. (1989) 3 SCC 287 at p. 292. Return to Text
7. (1995) 6 SCC 213 Return to Text
8. Ibid., at pp. 218-19. See also Ramanuja Naidu v. V. Kanniah Naidu, (1996) 3 SCC 392; Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N., (1997) 4 SCC 484; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343. Return to Text
9. (1999) 2 SCC 471. Other cases in the series are: Ranbir Singh (Dr) v. Asharfi Lal, (1995) 6 SCC 580; Navaneethammal v. Arjuna Chetty, (1996) 6 SCC 166; Kaluram v. Shrinathdas, (2000) 3 SCC 576; Roop Singh v. Ram Singh, (2000) 3 SCC 708; Ramavilasom Grandhasala v. N.S.S. Karayogam, (2000) 5 SCC 64. Return to Text
10. 1962 Supp (3) SCR 549 Return to Text
11. Ibid., at pp. 557-58. Return to Text
12. (2001) 6 SCC 652 Return to Text
13. Ibid., pp. 659-60, para 18. Return to Text
14. AIR 1963 SC 302 Return to Text
15. 16 MLJ 272 : 10 CWN 630 (PC) Return to Text
16. (1995) 4 SCC 15 Return to Text
17. (1999) 4 SCC 350 Return to Text