Recently, the Hon’ble #SupremeCourt of India in the case of Nazir Mohamed v. J. Kamala, (Civil Appeal Nos. 2843-2844 of 2010), passed a Judgment on 27.08.2020, and held that formulation of #substantialquestionoflaw by the #HighCourt is mandatory and mere reference to the ground mentioned in Memorandum of Second Appeal cannot satisfy the mandate of Section 100 of the Civil Procedure Code, 1908 (‘CPC, 1908’).
Section 100 of the CPC, 1908 states that 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.
The facts of the case before the Supreme Court relate to the Respondent/Plaintiff, who filed a suit for declaration of ownership of the suit premises, a direction to the Appellant/Defendant to deliver #possession of the suit premises to the Respondent/Plaintiff, a decree for payment of arrears of rent/occupation charges in respect of the suit premises, and a decree for payment of future profits. The Trial Court dismissed the Suit. The Respondent/Plaintiff filed the First Appeal against the said dismissal. The First Appellate Court allowed and passed an Order in favour of the Respondent/Plaintiff that being the owner of a portion of the said premises, he was entitled to declaration of title in respect of the suit property owned by him, but not to recovery of possession, since the Appellant/Defendant herein had been enjoying the suit property for a long time.
Thereafter, the Appellant/Defendant filed the #SecondAppeal against the Judgment of the First Appellate Court and the Respondent/Plaintiff also filed the Second Appeal, both before the Madras High Court, against the same Judgment of the First Appellant Court to the extent that the Respondent/Plaintiff had been denied the relief of delivery of possession in respect of his half share in the suit premises.
The High Court dismissed the Second Appeal filed by the Appellant/Defendant and allowed the Second Appeal filed by the Respondent/Plaintiff. The High Court held that the Respondent/Plaintiff was entitled to recovery of half of the plaint scheduled property, after identifying the same with the help of an Advocate Commissioner, at the time of the execution of the decree. In all other respects, the decree of the First Appellate Court was confirmed.
The Appellant/Defendant approached the Hon’ble Supreme Court against the Judgment of the High Court. The contention of the Appellant/Defendant before the Supreme Court was that there was no question of law involved in either of the Second Appeals, far less any substantial question of law, to warrant inference of the High Court in Second Appeals. The Hon’ble Supreme Court while analyzing the said contention observed as follows:
- In Hero Vinoth v. Seshammal [2 (2006) 5 SCC 545], the Supreme Court summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraph of this Judgment reads as below:
“When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.”
- The Court explained that 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. It further stated that 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 the question of law for a just and proper decision of the case.
- The Court specifically said that where no such question of law or even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, as in this case, a Second Appeal cannot be entertained, as held by this Court in Panchagopal Barua v. Vinesh Chandra Goswami [AIR 1997 SC 1047].
Based on its observations, the Hon’ble Supreme Court summarized the principles relating to Section 100 CPC relevant for this case as:
- An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
- The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
- A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle.
- The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.
Therefore, the Supreme Court in this case observed that when no substantial question of law is formulated, but a second appeal is decided by the high court, the judgment of the high court is vitiated in law. the condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the high court, the high court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law.
The Supreme Court finally found and held that the High Court, with greatest of respect, has patently erred in its conclusion that there was contradiction in the findings of the First Appellate Court. The questions framed by the High Court, is a question of law, far less a substantial question of law. The Judgment and Order of the High Court under Appeal does not discuss or decide any question of law involved in the Case, not to speak of substantial question of law. Therefore, the Judgment and Order of the High Court under Appeal is set aside.
The Indian Lawyer