The article is written by Shrey Verma.


The expression ‘appeal’ has nowhere been defined in the Code of Civil Procedure, 1908. An appeal, according to Black’s Law Dictionary is “The complaint to a superior court of an injustice done or error committed by an inferior one, whose judgment or decision the court above is called upon to correct or reverse. The removal of a cause from a court of inferior to one of superior jurisdiction, for the purpose of obtaining a review and retrial.” In a similar manner, a second appeal lies against the decree passed by the lower court that heard the first appeal. An appeal is a statutory and substantive right and not merely a legal right. The recourse to it can only be taken when it is expressly prescribed by the statute.

Second Appeal:

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The second appeal has been defined under Section 100 of Code of Civil Procedure which reads as:

“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 subsection 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.”

The procedural right of the second appeal is conferred by this section on either of the parties to a civil suit who has been adversely affected by the decree passed by a civil court. The second appeal lies to the High Court only if the court is satisfied that it involves a substantial question of law.
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The right to appeal or second appeal for that matter is an instrument of the statute. Thus, such right doesn’t come under the principles of natural justice and one can’t approach the court if the same has not been provided by the statue. The Supreme Court in Anant Mills Co. Ltd. v. State of Gujarat have iterated that the “right of appeal is a creature of statute and there is no reason why the legislature, while granting the right, cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory”.

On what grounds does a Second Appeal lie?

Section 101 reads as “Second appeal on no other grounds— No second appeal shall lie except on the ground mentioned in section 100.” therefore, it specifically bars the second appeal on any other ground mentioned in Section 100. The grounds on which a Second Appeal shall lie are:

(i) that the appeal should involve a substantial question of law that may either be presented by the party in a memorandum of appeal or the court may itself formulate such question;

(ii) that the second appeal may be brought forth where the decree was passed ex parte;

Substantial Question of Law:

A Second Appeal can only be entertained if it involves a substantial question of law. The expression is not defined in the Code, however, the Supreme Court in Sir Chunilal V. Mehta And Sons, Ltd. vs The Century Spinning And Manufacturing Co., Ltd. laid down that “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 call for discussion of alternative views.”

To be a ‘substantial’ question of law, the same should be debatable, not have been previously determined by the lower courts and should not be an applicable precedent in any form. Whether the question of law is ‘substantial’ or not is to be decided by the High Court and that may depend upon the facts and circumstances of each case. The proviso to Section 100(5) gives the court the power to hear questions which were not formulated by it but they form a part of the substantial question of law if the court is satisfied that case involves such a question. In Mahindra & Mahindra Ltd. v. Union of India & Anr, the court observed that “Under the proviso, the Court should be ‘satisfied’ that the case involves a substantial question of law and not a mere question of law. The reason for permitting the substantial question of law to be raised should be recorded by the Court.”

Question of fact:

The general rule is that the High Court shall only entertain matters involving a substantial question of law but Section 103 serves a supplementary to this.

Section 103 states: “Power of High Court to determine issues of fact— In any second appeal, 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 both by the Court of the first instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts reason of a decision on such question of law as is referred to in section 100.”

The particular section talks of two situations when a question of fact can be dealt with by the court in a second appeal. Firstly, when a necessary issue has not been determined by either the Lower Court or the Court of the first instance. Secondly, when the necessary issue has been wrongly determined by the Courts on the substantial question of law which can properly be the subject matter of the second appeal under Section 100.

In Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors the question came up before the court that whether the compromise decree was obtained by fraud. The court held that though it is purely a question of fact none of the lower courts has dealt with the question whether the decree was obtained by committing a fraud on the Court and hence, this court can look into the question of fact by exercising its power under Section 103. Further in Haryana State Electronics Development Corporation Ltd. & Ors. v. Seema Sharma & Ors dealt with the question that whether the promotion is applicable only on the basis of seniority or it should conform to merit-cum-seniority. The Supreme Court observed that such a question was not dealt by either of the lower courts and hence, remanded the matter back to the High Court to re-hear the second appeal and decide the aforementioned questioned. The Court further said that “Under Section 103 of the Civil Procedure Code, the High Court in the second appeal can decide this issue since it is necessary for the disposal of the appeal and has not been decided by the courts below. Relevant materials on this issue are also on record. After deciding that question the High Court will decide whether respondent(s) claim for promotion has been wrongfully denied.”

Further, the court clarified in Ramji Bhagala v. Krishnarao Krirao Bagra that an appellate court cannot partly admit and partly reject a second appeal under Section 100 and Section 101. It should either admit it wholly or reject it wholly.

Mixed question of fact and law:

While discussing the true scope of observations under Section 100 the Supreme Court in Shri Meenakshi Mills v. C.I.T. pointed out that there lies a difference between the pure question of fact and a mixed question of fact and law, and observations aforesaid have a reference to the latter and not the former.

In Gopal Singh v. Ujagar Singh, the question was whether a property is ancestral or not, or whether, when a raiyat purchased the interest of the proprietor, there is a merger of two interests, is a mixed one of fact and law. Though ordinarily, a second appeal does not lie on the finding of fact, when there is a legal conclusion that is necessary to be drawn from the finding of fact, a second appeal will lie on the ground that the legal conclusion was erroneous.  

Concurrent finding of the facts:

Generally, the concurrent finding of the fact by the lower court is not disturbed by the High Court by the virtue of the application of the same set of principles in the determination by two different lower courts. However, the power of the High Court in this regard will be subject to the grounds laid down in Section 100 and Section 103.

No Second Appeal in certain cases:

The scope of application of a second appeal has been made limited by Section 102 to the cases wherein the subject matter of the original suit should exceed three thousand rupees.

Section 102 reads as No second appeal in certain suits – No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees.”

Moreover, no appellate court has the jurisdiction to entertain a second appeal on an erroneous finding of the fact, however gross or inexcusable the error may seem to be.

However, there is no absolute prohibition on the appellate court to entertain a second appeal on a question of fact. The court in Jagdish Singh v. Natthu Singh laid down that if the court is satisfied that the finding of fact by the lower court was vitiated due to non-consideration of relevant evidence or consideration of an evidence which had no ulterior impact on the findings i.e. the finding of the fact had been rendered perverse, then the the appellate court has to jurisdiction to deliberate upon the findings of the facts.

Desirable limitations on the scope of Second Appeal:

Having regard to all the relevant aspects of the right of second appeal in appropriate cases we may come to a conclusion that the said right is confined to the cases wherein:

(i) a question of law is involved; and,

(ii) the question of law so involved is substantial.

The mere fact that a question of fact has been wrongly determined should not be criteria for entertaining a second appeal. The justification of a second appeal should rest solely on the criteria as laid down in Section 100.

Furthermore, the mere fact that finding of the fact is supposed to be perverse of manifestly unjust will not be sufficient. The court in  Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors laid down that the judgement rendered should suffer from additional infirmity of non-application of mind.


The right to appeal arises as soon as the judgement is pronounced by a competent court. It is not essential that such right is given only to the party on whom an adverse decision is pronounced but is applicable to both parties equally. Thus, the right to appeal is vested on the parties as soon as the proceedings begin and arises when a judgement is pronounced.

It can be summarised that the law can at most extent be applicable to cases involving a substantial question of law and it becomes the responsibility of the appellate court to formulate such a question after referring to the memorandum of appeal submitted by the appellant.



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