Nazir Mohamed v. J. Kamala And Ors.

Case Number: Civil Appeal No. 2843-2844 OF 2010

Judges Name: Hon’ble Justice Naveen Sinha J, Indira Banerjee J

Order dated: 27th August, 2020

Facts of the Case:

In this case, the Plaintiff filed a suit seeking declaration of title to the suit property and recovery of possession of the same from the Defendant. The First appellate Court allowed the appeal and held that the plaintiff is entitled to only half portion of the suit premises but is not entitled to recovery of possession, since the defendant has been enjoying the suit property for a long time. Allowing the second appeal filed by the Plaintiff, the High Court framed ‘question of law’ instead of ‘substantial question of law’ and held that the Plaintiff was entitled to delivery of possession of half portion of the suit property, after identifying the same with the help of an Advocate Commissioner, at the time of the execution of the decree.

Issue

Whether the High Court while deciding Second appeal can proceed framing ‘question of law’ rather than ‘substantial question of law’?

Supreme Court held:

  • A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal.
  • Section 100 of the CPC, as amended, restricts the right of second appeal, to only those cases, where a substantial question of law is involved. The existence of a “substantial question of law” is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC.
  • 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.
  • To be a question of law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.
  • Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, a second appeal cannot be entertained.
  • Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall 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.
  • In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect. An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter.
  • The Supreme Court held that the judgement and order of the High Court under Appeal should discuss or decide ‘substantial question of law’ and not any ‘question of law’ involved in the case. Furthermore, it was held by the Court that a second appeal unlike first appeal is not a matter of right and it only lies on a substantial question of law.
  • The Supreme Court said that appeal being the creature of statute lies only if statute confers a right of appeal, the Court by its order cannot expand the scope of the appeal.
  • The Court explaining the term “substantial” said that a question of law qualifies to be ‘substantial’ if it is debatable; not previously settled by the law of the land and does not have any binding precedent. Apart from this, it must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.
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