Second Appeal in Civil Cases

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Second Appeal:

S.100 C.P.C provides that an appeal shall lie to the High Court from every decree passed in appeal by a court subordinate to High Court on any of the following grounds, namely:-

  1. The decision being contrary to law or usage having the force of law.
  2. The decision being failed to determine some material issues of law or usage having the force of law.
  3. A substantial error or defect in the procedure which may possibly have produced error or defect in the decision of the case upon the merit.

Scope:

Whilst the first appeal is not limited to any particular ground, by virtue of S. 101 a second appeal does not lie except on the grounds mentioned above. A court cannot enlarge upon the grounds mentioned in S. 100 C.P.C and must summarily reject the second appeal if it is not based on the ground enumerated in section ibid.

Decision being contrary to law:

If a court acts contrary to law it acts without jurisdiction and its orders to that effect are nullities. It is the duty of the court to apply the law whether or not it has been relied upon. A court should act in accordance with the following principles of law.

  1. It should decide on the basis of evidence available on record which is legally admissible.
  2. Where discretion is vested in a court, it should be exercised judicially and on the basis of sound legal principles and a court will be committing an error of law if it:-
  3. Refuses to exercise discretion vested in it.
  4. Exercises its discretion arbitrarily, unreasonably or contrary to the principles governing the exercise of such discretion.
  5. A court commits an error of law if it decides a question under a misconception regarding the issue or the question in controversy.
  6. A court commits an error of law if it fails or refuses to draw any inference fro the facts on record or draws inference which are not warranted by the facts on record. Drawing of one of two possible inferences is not an error of law.
  7. A court commits an error of law if it acts without jurisdiction and a second appeal will lies on this ground, notwithstanding that the first appellate court had no jurisdiction and no first appeal was competent

The decision being contrary to usage having the force of law:

Question of usage are mixed question of law and fact. The court has first to find out the existence of a usage which is a finding of fact. Therefore, it is to determine whether such usage fulfills the requirements of law i.e., whether it is ancient, invariable, certain and reasonable. In the second appeal, High Court will only interfere in questions of law i.e., it will only examine whether the facts found fulfills the essential legal requirements aforesaid. The High Court will not interfere with a finding of fact in second appeals.

The decision having fail to determine some material issues of law or usage having the force of law:

The court is required to give finding of every issue placed before it. If a court failed to determine some material issues of law or usage having the force of law, second appeal is competent under clause b. to s. 100.

Substantial error or defect in procedure:

By virtue of clause ‘e’ to s. 100, a second appellate court may set aside a decree if a substantial error or defect in the procedure has possibly affected the merits of the case. A second appeal will be admitted under cl. ‘e’ only if there is a substantial error or defect in the procedure followed, which may have produced error in the decision upon merits. If the procedure followed is correct, the court cannot interfere even though the decision seems to be incorrect. Where the parties invite the court to adopt a particular procedure, they cannot subsequently be allowed to question the legality of such procedure. Three conditions must be fulfilled in order to permit interference under clause e.

  1. There should be an error or defect in the procedure.
  2. It should be of substantial nature.
  3. Such error could have possibly affected the decision of the case on the merits.

Question of Law:-

A finding which has to draw on a rule of law for recording of it or for the ascertainment of its truth, is a finding on a question of law. The following are instances of question of law:-

  1. The legal effect of a document.
  2. The legal effect of a proved fact.
  3. The relevancy of evidence.
  4. The legal effect of a transaction.

Mixed question of law and fact:-

A missed question of law and fact is one for the purposes of determining which it is necessary to answer a question of fact and also a question of law. A second appeal on mixed question of law and fact lies only if there is an error in the law involved.

Question of Law:-

A second appeal can only lie on the grounds mentioned in S.100, which do not envisage a second appeal against a finding of fact. The High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, howsoever gross or inexcusable the error may be.

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