Substantial Question Of Law & Second Appeal Jurisdiction: SC Summarizes Principles Relating To Section 100 CPC [Read Judgment]

High Court cannot also allow a second appeal, without discussing the question of law, the Supreme Court observed in a judgment delivered on Thursday.

In this case, plaintiff filed a suit seeking declaration of title to the suit property and recovery of possession of the suit property from the Defendant. The Trial Court dismissed the suit. The First Appellate Court allowed the plaintiff's appeal and held that being the owner of a portion of the said premises, he was entitled to declaration of title in respect of the said portion of the suit property owned by him, but not to recovery of possession, since the defendant had been enjoying the suit property for a long time. Allowing the second appeal filed by the Plaintiff, the High Court held that the 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.

Taking note of the 'substantial questions of law' framed in this case, the bench comprising Justices Navin Sinha and Indira Banerjee observed: 

"With the greatest of respect to the High Court, neither of the two questions framed by the High Court is a question of law, far less a substantial question of law. There was no controversy before the High Court with regard to interpretation or legal effect of any document nor any wrong application of a principle of law, in construing a document, or otherwise, which might have given rise to a question of law. There was no debatable issue before the High Court which was not covered by settled principles of law and/or precedents."

The court proceeded to observe 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. "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. 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.", it added.

The bench therefore summarized the principles relating to Section 100 of the Code of Civil Procedure as follows:

1. 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. Construction of a document, involving the application of any principle of law, is also 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.
2. 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.
3. 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. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered. on a material question, violates the settled position of law.
4. 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-recognised 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. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding

The court observed that the judgment and order of the High Court under appeal does not discuss or decide any question of law involved in the case. It also addressed the contentions raised on merits. It observed that the presumption based on the maxim 'possession follows title' that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else. Allowing the appeal, the bench observed:

"Just as this Court has time and again deprecated the practice of dismissing a second appeal with a non-speaking order only recording that the case did not involve any substantial question of law, the High Court cannot also allow a second appeal, without discussing the question of law, which the High Court has done."

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