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Section 100 of CPC - Second Appeal And Substantial Question Of Law - Explained

In Nazir Mohamed vs J. Kamala And Ors., appeal was filed before the Supreme Court against the judgment of the High Court on a second appeal filed before it.

Disagreeing with the decision of the High Court, the Supreme Court held that the High Court has erred in its understanding of the nuances of Section 100 of the Code of Civil Procedure (CPC) as there was no " Substantial Question Of Law" involved and went on to explain the same in detail as well as the maxim "Possession follows title".

The Supreme Court observed that Section 100 of the CPC, as amended, restricts the right of second appeal, to only those cases, where a substantial question of law is involved. The existence of a “substantial question of law” is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC. However, what constitutes a substantial question of law has not been defined int the CPC.  The principles for deciding when a question of law becomes a substantial question of law, have been enunciated by a Constitution Bench of this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. Hero Vinoth v. Seshammal, Panchagopal Barua v. Vinesh Chandra Goswami, Santosh Hazari v. Purushottam Tiwari and Ramchandra v. Ramalingam, and that following the said judgments, it is now settled that to be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way. 

To be a question of law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case. Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, as in this case, a second appeal cannot be entertained. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect. . An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter.


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