Non-Compliance of Legal Principles by High Courts
One of the basic tenets of law, which has to be fathomed, is that any appeal is not a matter of right. It is only conferred by a statute. It is sine qua non to stay within the circumscribed limits, as laid down in the statute. When a statute allows an appeal or a second appeal on a condition, then there exists no discretion with the courts except to allow the appeal only when the said condition is fulfilled. It is in this context that we shall dwell into the second appeal, as enunciated in the Civil Procedure Code, 1908.
SECTION 100, CIVIL PROCEDURE CODE OF 1908
Section 100 of the Civil Procedure Code, 1908 (Hereinafter ‘Section 100’) confers a right of second appeal on compliance with certain conditions. Section 100 (1) states that:
“(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. (emphasis supplied)”.[i]
Section 100 (1) mandates that a substantial question of law should be involved in order to allow a second appeal. It is a mandatory provision[ii] and a prerequisite in order to allow a second appeal. Section 100 (3) mandates the incorporation of the substantial question of law in the memorandum of appeal. Prior to the 1976 amendment, the power with the High Court under Section 100 was very wide. Subsequent to the 1976 Amendment Act, the power of the High Court was narrowed and curtailed. This can be further substantiated by Section 101 of the Civil Procedure Code of 1908 which states that no second appeal can lie except on the ground mentioned in Section 100. This underpins the need for substantial question(s) of law in order to allow the appeal under Section 100.
SUBSTANTIAL QUESTION OF LAW
What amounts to a ‘substantial question of law’ has been elucidated via several judgments of the hon’ble Supreme Court. However, the High Courts, in several cases, failed to comply with the enunciated guidelines. A mere question of law will not amount to a ‘substantial question of law’.
The principles pertaining to the proposition that the question of law must qualify to be a ‘substantial question of law’ were laid down in the case of Sir Chunilal v. Mehta and Sons Ltd. v. Century Spg and Mfg. Co. Ltd.[iii] It was held that the proper test, for determining whether a question of law raised in the case was ‘substantial’ or not, would be:
a) Whether it is of general public importance;
b) Whether it directly and substantially affects the rights of the parties and if so, then 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.
The word ‘substantial’, as “qualifying question of law”, means of having “substance, essential, real, of sound worth, important or considerable”.[iv] In order 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”.[v]
In the case of Hero Vinoth v. Seshammal,[vi] it was held that when the question of law involves no substance nor consequence, or it is merely academic, then it cannot be considered as a ‘substantial question of law’. In cases where there exists a possibility for a difference of opinion or there exists a necessity for alternative views, then the question of law would be a substantial question of law. But it was also held that when a question was practically covered by the decision of a higher court and the only question was of applying those principles to the particular facts of the case, then it would not be a ‘substantial question of law’.
In the case of Panchagopal Barua v. Vinesh Chandra Goswami,[vii] it was held that when any question of law or even a mixed question of law and fact is not urged before the sub-ordinate courts, then it would not be amiss to state that the High Court is barred from allowing a second appeal. Whether a question of law is a substantial one depends on the facts and circumstances of each case. The indispensable element for 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.[viii] In the case of Ramachandra v. Ramalingam,[ix] it was held that the second appeal cannot be allowed albeit the appreciation of evidence is palpably erroneous and the finding of fact is incorrect.
SUMMARY OF LAW
Albeit the above-mentioned judgments elucidate the pertinent considerations for the ascertainment of a ‘substantial question of law’ yet the High Courts, generally, are not following them. The hon’ble Supreme Court has been, frequently, condemning the High Courts for laxity in the application of established legal principles. One such contemporary example of the High Court’s laxity can be found in the case of Nazir Mohamed v. J. Kamala and Ors.[x] This case was decided in the month of August, 2020. The hon’ble Supreme Court was perplexed with the questions of law, which were framed by the High Court.
The Supreme Court had held that the said questions were not fit to be even called questions of law. In para 38 of the judgment, the Supreme Court respectfully condemned the High Court by asserting that, “neither of the two questions framed by the High Court is a question of law, far less a substantial question of law”. In this context, the principles pertaining to Section 100, relevant for the case, were summarised as follows:
1) When an inference is made from the recitals or contents of a document, then it is a question of fact. Per contra, the legal effect of the terms of a document is a question of law. When there is misconstruction of a document or wrong application of a principle of law in construing a document, then it would give rise to a question of law.
2) A mere question of law will not suffice and it has to be a ‘substantial’ question of law. A question of law becomes a ‘substantial question of law’ if it has material bearing on the decision of the case and if it is not covered by any specific provision of law or settled legal principle emerging from binding precedents, and involves a debatable legal issue.
3) A substantial question of law will also arise in a situation where the legal position is clear, but the court below has decided the matter by either ignoring the settled legal principle or acting contrary to such a legal principle. These kinds of cases arise, not because the law is still debatable, because the decision rendered is contrary to the settled position of law.
4) Albeit the general rule is that the High Courts will not interfere with the concurrent findings of the courts below, but in cases where the courts below have ignored the material evidence or wrongfully inferred a point of law because of erroneous application of the law or the courts have wrongly cast the burden of proof, then in such a case, the High Courts may interfere.
Albeit several principles were laid down by the Hon’ble Supreme Court pertaining to the ascertainment of a ‘substantial question of law’, however, we still find several cases where the High Courts portray a non-compliance of those principles. The Nazir Mohamed case being a contemporary example. The High Courts shall be very diligent while ascertaining whether the case involves a substantial question of law. Hitherto (until 1976), the power under Section 100 was very wide. However, after the amendment in the year 1976, the power of the High Courts in entertaining the second appeals was curtailed.
The Fifty-Fourth Law Commission, in its report, advised the Government to amend the Code and curtail the power of the High Courts in relation to second appeals. This was due to the fact that there were several conflicting judgments and there was no end to Lis. In order to curb these practices, the Government acquiesced to the advice of the Law Commission and made necessary amendments in the year 1976. The recommendation is apposite in order to curb the issue of unending litigation.
It is the public policy of India that there shall be an end to litigation. It is a well-entrenched principle that there shall be a conclusiveness to the judgment. In view of the above-mentioned penumbra, the High Courts shall allow the second appeals only in cases which entails a substantial question(s) of law.
[i] The Civil Procedure Code, 1908, Act No. 5, Acts of Parliament, § 100 (1) (India). [ii] Sir Chunilal v. Mehta and Sons Ltd. v. Century Spg and Mfg. Co. Ltd., AIR 1962 SC 1314 (India). [iii] Id. [iv] Hero Vinoth v. Seshammal, (2006) 5 SCC 545 (India). [v] Nazir Mohamed v. J. Kamala, MANU/SC/0619/2020 (India). [vi] Supra 4. [vii] Panchugopal v. Umesh Goswami, (1997) 4 SCC 413 (India). [viii] Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 (India). [ix] Ramachandra v. Ramalingam, 1963 AIR 302 (India). [x] Supra 5.
ABOUT THE AUTHOR
This blog has been authored by Tupakula Nikhil, who is a 3rd Year B.A., LL.B. (Hons.) student at Damodaram Sanjivayya National Law University, Visakhapatnam.
[PUBLICATION NO. TLG_BLOG_20_108_04]