Second appeals, section 100-103 CPC, Order 42,43 Limitations Concept of substantive question of law Supreme courts take on right to second appeal

1. M O C K S H D A M I S H R A
1 2 8 4 7
SECOND APPEALS UNDER THE
CODE OF CIVIL PROCEDURE

2. WHO MAY PREFER AN APPEAL ?
 The right to appeal is a statutory right and not an
inherent right or natural right of a person.
 Only those decrees or orders are appealable, for
which a specific provision under this code allows,
and in no other case can an appeal lie.
 Statutory provisions for making an appeal is reserved
for aggrieved parties who may be-
 a) parties to the suit from which the appeal lies
 b) third parties whose rights are injured by a decree or
order in a suit from which the appeal is made.

3. STATUTORY PROVISIONS
 Section 100 CPC was amended in 1976. It imposing drastic restriction on the
High Court's jurisdiction in entertaining a second appeal.
 It was held that the High Court had no right to sit in appeal on facts.
 In Durga Choudhrain v. Jawahir Singh Choudhri, the Privy Council held
thus:
"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.”
 In Dudh Nath Pandey v. Suresh Chandra Bhattasali the SC 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. Thangapalam SC 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.”

4. WHAT IS A SUBSTANTIAL QUESTION OF LAW?
 Test laid down in Chunilal V. Mehta and Sons Ltd. v.Century Spg.
and Mfg. Co. Ltd stating :
“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.“
 Therefore instances where substantive issues may be involved are:-
1. Construction of document
2. Perverse finding of facts
3. Admissibility of evidence
4. Conflict of judicial opinion
5. Interpretation of contract
6. Conflict with any existing law.

5. LIMITATION ON SECOND APPEAL
 Has been laid down under section 100A that no
further appeal shall lie from the judgment and
decree of such single Judge in case of:-
1. Letters Patent appeal case for any High Court or
2. In any other instrument having the force of law or in any other law for the
time being in force, where any appeal from an original or appellate decree or
order is heard and decided by a single Judge of a High Court
 The essential conditions to make an appeal
therefore are:-
1. The existence of relation of superior and inferior court.
2. Power of the superior court to review the decision of the inferior court

6. APPEALS FROM ORDERS
SECTION104-106, ORDER 43
 Appeal can be filed only against those orders which are made appealable.
 These cases are laid down in section 104 a-k, no further appeal lies from any
order passed in appeal under Sec. 104.
 Sec. 105 : An order, whether appealable or not, except an order of remand, can be
attacked, in an appeal from the final decree, on the ground that there is an error,
defect or irregularity in order which affects the decision of the case, including
'interlocutory order'
 Under Order 43, an appeal shall lie from the eighteen orders such as:
1. An order returning a plaint to be presented to the proper court,
2. An order rejecting an application for an order to set aside the dismissal of a suit
set aside a decree passed ex parte,
3. An order setting aside or refusing to set aside a sale, an order refusing to set
aside the abatement or dismissal of a suit,
4. An order rejecting an application to sue a an indigent person,
5. Orders in interpleader suits,
6. An order for the grant of temporary injunction,
7. An order of refusal to re-admit or re-hear an appeal,
8. An order wanting an application for review, etc.