Second Appeal Under CPC
Key Takeaways
- A second appeal under the Code of Civil Procedure, 1908 lies to the High Court from an appellate decree of a court subordinate to it only when the case involves a substantial question of law.
- Section 100 CPC considerably restricts the scope of second appeals. The High Court cannot ordinarily interfere merely because another view of the facts or evidence is possible.
- The memorandum of second appeal must precisely state the substantial question of law, and the High Court must formulate such question before hearing the appeal.
- A substantial question of law may arise where an important legal issue directly affects the rights of the parties, where the legal position is unsettled or doubtful, or where the lower court has applied the law contrary to settled legal principles.
- Findings of fact recorded by the first appellate court are generally binding in second appeal. Interference may nevertheless arise where findings are perverse, unsupported by evidence, based on inadmissible evidence or affected by a serious legal error.
- Section 103 CPC permits the High Court, in limited situations, to determine an issue of fact if the evidence already on record is sufficient.
- A second appeal lies from an appellate decree, not ordinarily from an order. Appeals from certain specified orders are separately governed by Section 104 and Order XLIII of the CPC.
What Is a Second Appeal Under CPC?
A second appeal is an appeal filed before the High Court against a decree passed by a first appellate court. It represents another level of appellate scrutiny after a civil dispute has already been considered by the trial court and then by the first appellate court.
However, a second appeal is not a general rehearing of the entire dispute. Section 100 of the Code of Civil Procedure, 1908 restricts the jurisdiction of the High Court to cases involving a substantial question of law.
Add LawBhoomi as your preferred source on Google.
Therefore, dissatisfaction with findings of fact, appreciation of evidence or conclusions reached by the first appellate court is not by itself sufficient for maintaining a second appeal.
The principal statutory provisions concerning second appeals are contained in Sections 100 to 103 of the CPC. Sections 107 and 108 also have relevance because they deal with the powers of appellate courts and the procedure applicable to appeals. The broader concept, characteristics and procedure relating to an appeal under CPC are important for understanding the place of second appeals within civil procedure.
When Is a Second Appeal Maintainable?
Under Section 100 CPC, an appeal lies to the High Court from every decree passed in appeal by a court subordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law.
Thus, three basic requirements normally exist:
Explore practical law courses to build career-ready legal skills.
- There must be an appellate decree: The decision challenged before the High Court must be in the nature of a decree passed in appeal and not merely an interlocutory order.
- The decree must be passed by a subordinate court: The appellate decree must have been passed by a court subordinate to the High Court in which the second appeal is instituted.
- A substantial question of law must arise: This is the most important condition. A disagreement regarding facts or appreciation of evidence alone does not satisfy Section 100 CPC.
A second appeal can also lie from an appellate decree passed ex parte, provided the statutory requirements under Section 100 are otherwise satisfied. An ex parte decree is not inherently invalid merely because one of the parties was absent from the proceedings.
The existence of a substantial question of law is therefore the central requirement governing the maintainability of a second appeal.
What Does Section 100 CPC Require?
Section 100 lays down a structured process for entertaining and deciding a second appeal.
Substantial Question of Law Must Exist
The High Court must first be satisfied that the case involves a substantial question of law. Unless this requirement is fulfilled, the appeal cannot ordinarily proceed as a second appeal under Section 100.
Memorandum of Appeal Must State the Question
Section 100(3) requires the memorandum of appeal to precisely state the substantial question of law involved.
A vague allegation that the judgment of the lower appellate court is legally incorrect is not sufficient. The legal issue must be identified with reasonable precision.
High Court Must Formulate the Question
Where the High Court is satisfied that a substantial question of law exists, Section 100(4) requires it to formulate that question.
This requirement is important because it defines the scope of the second appeal.
Explore the latest legal opportunities for law students and lawyers.
In Ishwar Dass Jain v. Sohan Lal, the Supreme Court emphasised that the High Court must formulate a substantial question of law before exercising jurisdiction under Section 100 CPC.
Appeal Is Ordinarily Heard on the Formulated Question
Under Section 100(5), the appeal is heard on the substantial question of law formulated by the High Court.
The respondent remains entitled to argue that the question formulated does not actually arise in the case or is not a substantial question of law.
Additional Substantial Question May Be Considered
The proviso to Section 100(5) permits the High Court to hear the appeal on another substantial question of law that was not originally formulated.
However, two requirements must be satisfied:
- The High Court must be satisfied that such a substantial question of law arises.
- Reasons for considering that additional question must be recorded.
This power prevents injustice where an important legal question was overlooked at the stage of admission.
How Did the 1976 Amendment Change Second Appeals?
The Code of Civil Procedure (Amendment) Act, 1976 significantly narrowed the scope of second appeals.
Before the amendment, Section 100 permitted second appeals on comparatively broader legal grounds. The amended provision deliberately restricts the jurisdiction of the High Court by making the existence of a substantial question of law essential.
The present scheme therefore discourages a second round of factual examination.
Learn at your own pace with LawBhoomi's recorded law courses.
The consequences of the amended Section 100 may be summarised as follows:
- The High Court must identify a substantial question of law.
- The appellant must state such question in the memorandum of appeal.
- The High Court must formulate the question.
- The appeal is normally confined to the formulated question.
- Pure questions of fact ordinarily fall outside second appellate jurisdiction.
- Additional substantial questions may be considered only after recording reasons.
In Roop Singh v. Ram Singh, the Supreme Court reiterated that the jurisdiction of the High Court under Section 100 is confined to cases involving a substantial question of law and does not extend to interference with pure findings of fact.
What Is a Substantial Question of Law?
A substantial question of law is a legal question of real significance to the dispute and not merely an ordinary, routine or already settled proposition of law.
The expression does not necessarily mean that the question must be of general public importance. A question may be substantial because it directly and materially affects the rights of the parties involved in the case.
The leading decision on the subject is Chunnilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd.
The Supreme Court explained that a question of law may be regarded as substantial where:
- it is of general public importance; or
- it directly and substantially affects the rights of the parties; and
- it is an open question not finally settled by the Supreme Court, Privy Council or Federal Court; or
- the question is not free from difficulty; or
- it requires consideration of alternative legal views.
On the other hand, where the legal principle is already well settled and the dispute involves only the application of that settled principle to the facts, the question ordinarily does not become a substantial question of law.
Similarly, a plainly untenable legal plea does not qualify as a substantial question of law.
What Test Is Used to Identify a Substantial Question of Law?
The practical test is whether the legal question materially affects the decision and requires serious consideration of law rather than a fresh examination of facts.
A substantial question of law may arise in the following situations.
The Legal Position Is Unsettled
Where there is no authoritative pronouncement settling the relevant principle, the question may be substantial. An unresolved issue requiring authoritative interpretation may therefore satisfy Section 100.
The Issue Is Legally Difficult
A question may be substantial if the correct legal interpretation is genuinely doubtful or requires examination of competing principles or alternative legal interpretations.
Rights of the Parties Are Directly Affected
Even if the issue is not of wide public importance, it may still be substantial where determination of the legal question directly governs important rights of the parties.
Settled Law Has Been Ignored or Misapplied
A substantial question may also arise where a lower appellate court has acted contrary to a mandatory statutory provision or a binding legal principle.
Interpretation of a Legal Document Raises a Serious Issue
Construction of a document may sometimes raise a question of law, particularly where the interpretation has legal consequences and is not merely dependent on appreciation of factual evidence.
Santosh Hazari v. Purushottam Tiwari and Section 100 CPC
In Santosh Hazari v. Purushottam Tiwari, the Supreme Court explained the restricted nature of jurisdiction under the amended Section 100 CPC.
The Court clarified that the appellant carries the obligation of precisely stating the substantial question of law in the memorandum of appeal.
The High Court must then satisfy itself that such a question exists and formulate it.
Once formulated, the hearing is generally confined to that question.
The judgment also recognised the power of the High Court to consider another substantial question of law which had not initially been formulated, provided the Court:
- is satisfied that such a question is involved; and
- records reasons for considering it.
This decision reinforces the principle that formulation of a substantial question of law is not a technical formality but a jurisdictional requirement.
Can the High Court Reappreciate Evidence in Second Appeal?
Ordinarily, no.
A second appeal does not permit the High Court to reappreciate evidence merely because it would have reached a different conclusion from the first appellate court.
In Kashibai v. Parwatibai, the Supreme Court observed that a second appeal cannot be entertained merely on the ground that the finding of fact is erroneous after appreciation of relevant evidence.
The first appellate court is normally regarded as the final court on facts. The nature and scope of a first appeal under the Code of Civil Procedure, 1908 are wider because the first appellate court can generally reconsider both factual and legal issues.
Therefore, where a finding is based on proper appreciation of admissible evidence, the High Court cannot substitute its own view merely because another inference may also be possible.
When Can Findings of Fact Be Interfered With?
Although factual findings are generally protected from interference, this rule is not absolute.
A substantial question of law may arise where the factual finding itself suffers from a serious legal defect.
Interference may be possible where the finding:
- is perverse: A finding may warrant interference where it is such that no reasonable court could have arrived at it on the material available.
- is based on no evidence: A conclusion without evidentiary foundation may give rise to a legal issue capable of consideration in second appeal.
- is founded upon inadmissible evidence: Reliance upon material that cannot legally be admitted may affect the validity of the factual conclusion.
- ignores material evidence: Failure to consider material evidence having a direct bearing on the dispute may, depending upon the circumstances, give rise to a substantial question of law.
- proceeds from a serious misreading of evidence: A finding based upon a legally significant misreading of the record may be open to interference.
- is based on an incorrect legal interpretation of a document: Where the construction of a document raises a legal question, interference may become permissible.
- is contrary to mandatory law: A factual conclusion reached by disregarding a mandatory statutory provision or binding legal rule may attract the jurisdiction of the High Court.
These situations do not convert every disagreement over facts into a substantial question of law. The defect must have a legal character affecting the validity of the finding.
Kondiba Dagadu Kadam v. Savitribai
The principles governing factual interference were strongly reiterated in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar.
The dispute involved a suit relating to specific performance of contract. The first appellate court had reached findings after appreciating the evidence. The High Court, while exercising second appellate jurisdiction, effectively reassessed the credibility of witnesses and substituted its own view.
The Supreme Court held that such interference was contrary to the limits imposed by Section 100 CPC.
The Court observed that the High Court is not entitled to investigate afresh the grounds upon which the final court of fact reached its findings.
Where two inferences are reasonably possible from the evidence, the inference drawn by the first appellate court ordinarily binds the High Court in second appeal.
Interference becomes justified only where the conclusion is legally unsustainable, such as where it is contrary to mandatory law, based upon inadmissible evidence or arrived at without evidence.
Can New Questions of Law Be Raised in Second Appeal?
A new question of law may sometimes be permitted where it arises from facts already on record and does not require investigation of new factual matters.
However, a litigant cannot ordinarily raise a legal issue in second appeal where the issue depends upon facts that were never pleaded, proved or examined before the lower courts.
In Mst. Sugani v. Rameshwar Das, the Supreme Court observed that where a point of law has not been pleaded and cannot arise without a necessary factual foundation, it should not ordinarily be permitted to be raised in second appeal.
Therefore, the distinction lies between:
- A pure legal issue arising from established facts: Such an issue may, depending upon the circumstances, be considered without requiring further factual investigation.
- A new legal plea requiring additional facts: Where determination of the legal plea depends upon facts that were neither pleaded nor established, it generally falls outside the proper scope of second appeal.
The purpose of this limitation is to ensure that second appellate proceedings remain confined to substantial legal issues rather than becoming an opportunity to reconstruct the factual case.
When Does a Second Appeal Not Lie?
A second appeal does not lie merely because a party is dissatisfied with the decision of the first appellate court.
Important situations where a second appeal is not maintainable include the following.
No Substantial Question of Law Exists
Section 101 CPC makes the position clear that a second appeal cannot lie except on the ground specified in Section 100.
Where the dispute involves only factual appreciation, the appeal is not maintainable as a second appeal.
A mere allegation that the lower appellate court reached an incorrect factual conclusion does not create a substantial question of law.
Appeal Is Against an Order Instead of an Appellate Decree
Section 100 deals with appeals against appellate decrees. A decree under CPC is the formal expression of an adjudication which, so far as the court expressing it is concerned, conclusively determines the rights of the parties regarding all or any of the matters in controversy in the suit.
A second appeal does not ordinarily lie from an order. Appeals from certain specified orders are governed separately by Section 104 and Order XLIII CPC.
The Statute Expressly Bars the Appeal
Where the CPC or another applicable law expressly excludes a second appeal, the right cannot be exercised contrary to that statutory bar.
The right of appeal is a statutory right. Its existence and extent therefore depend upon the provisions creating that right.
The Challenge Requires Fresh Appreciation of Evidence
A second appeal cannot be used to obtain another factual hearing merely because a party disputes the conclusions reached by the first appellate court.
Where the proposed challenge requires only re-examination of witness credibility, reconsideration of evidence or substitution of one factual inference for another, Section 100 ordinarily does not permit interference.
What Is the Power of the High Court Under Section 103 CPC?
Section 103 CPC creates a limited exception to the rule that the High Court does not determine factual issues in second appeal.
The High Court may determine an issue of fact where the evidence on record is sufficient and the issue is necessary for deciding the appeal.
This power may be exercised where:
- the issue was not determined by the first appellate court, or by both the trial court and the first appellate court; or
- the issue was wrongly determined because of an erroneous decision on a question of law falling within Section 100.
Section 103 therefore does not grant a general power to reassess evidence.
Its application is conditional. There must be sufficient evidence already on record, and determination of the factual issue must be necessary for disposing of the second appeal.
The provision allows the High Court to resolve an issue without unnecessarily remanding the matter where all relevant evidence is already available, while preserving the restricted nature of second appellate jurisdiction.
Difference Between Second Appeal and Appeal From Orders
A second appeal under Section 100 must be distinguished from an appeal against an order under Section 104 CPC.
Section 104 specifies certain orders from which an appeal is permissible. It also provides that no further appeal shall ordinarily lie from an order passed in appeal under that section.
Thus, the concepts are fundamentally different:
| Basis | Second Appeal | Appeal From Order |
| Main Provision | Section 100 CPC | Section 104 CPC |
| Nature of Decision Challenged | Appellate decree | Specified order |
| Forum | High Court | Court authorised by law |
| Main Requirement | Substantial question of law | Order must be appealable under CPC or another law |
| Further Appeal | Governed by Section 100 and applicable law | Section 104(2) bars further appeal from appellate order |
This distinction is important because every judicial order is not appealable. The right to challenge an order must be specifically recognised by the CPC or another applicable law.
Why Is the First Appellate Court Important in Second Appeal?
The first appellate court occupies an important position in civil procedure because it is generally the final court on questions of fact.
It can reassess the evidence, examine factual conclusions of the trial court and arrive at its own findings.
This power distinguishes a first appeal from a second appeal. While the first appellate court ordinarily has wider authority to examine both facts and law, the jurisdiction of the High Court in second appeal is restricted by Section 100.
Once the first appellate court has properly considered the evidence and recorded findings, the High Court cannot reopen those findings under Section 100 merely because another view is possible.
This distinction preserves the limited purpose of second appeal and prevents litigation from becoming an unlimited chain of factual reconsideration.
Conclusion
A second appeal under Section 100 of the Code of Civil Procedure, 1908 is a restricted legal remedy available against an appellate decree where the case involves a substantial question of law. It is not intended to provide a third opportunity for reconsideration of facts or reappreciation of evidence.
The 1976 amendment significantly narrowed the jurisdiction of the High Court by requiring the appellant to precisely identify a substantial question of law and requiring the High Court to formulate that question before deciding the appeal.
Decisions such as Chunnilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., Santosh Hazari v. Purushottam Tiwari, Ishwar Dass Jain v. Sohan Lal, Roop Singh v. Ram Singh and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar establish that the jurisdiction under Section 100 is primarily concerned with serious legal errors rather than factual disagreement.
Findings of fact recorded by the first appellate court ordinarily remain binding. Interference is justified only where those findings are affected by perversity, absence of evidence, reliance on inadmissible evidence, serious misreading of material or an error involving a substantial question of law.
Sections 100 and 103 together therefore maintain a careful balance: they protect finality in factual adjudication while allowing the High Court to correct substantial legal errors that materially affect the rights of the parties.
Join LawBhoomi’s 100K+ Community
