Generally an appeal is filed to a superior court when a party is not happy with the decision of the lower court which can be done by both the parties. It is the first appeal which can be filed on the basis of both on question of fact like the witness has not been examined properly, evidence has not been admitted which should be admitted, or proper right of hearing was not given or question of law where the law has not been interpreted properly by the inferior court. But in Regular Second Appeal, the appeal can be filed only and only basis of substantial question of law.
Substantial question of law
It has been interpreted by various case laws as to what can be the substantial question of law. In Sir Chunilal V. Mehta and Sons Ltd. v Century Spinning and Manufacturing Co. Ltd., substantial question of law was defined as:
- The rights of the parties are affected substantially by that point of law.
- There is difference of opinion of various judges
- There has been no landmark judgement on such question of law
- And that point needs to be discussed because we donâ€™t have the precedent related to that and it has great effect on the case.
Section 100 and 103 of CPC, 1908 deals with the Regular Second Appeal and it talks about the procedure to be followed and the conditions to be satisfied for the Regular Second Appeal.
Section 100(1) states that the appeal should lie to the High Court from the lower court when the High Court is satisfied that there is substantial question of law involved in the case.
Section 100 (3) states that in briefly it should be stated in the memorandum of appeal that what actually is the substantial question of law in the present case.
Section 100(4) states that when the High Court on being satisfied that the substantial question of law is involved, has to formulate that question.
Section 100(5) states that the appeal has to be heard on the basis of the question formed by the High Court and the respondent is also given the chance to be heard.
High Court has the power to determine the question of fact under section 103, when there is sufficient evidence on record about which has not been determined by the lower original court or court of appeal at first stage.
Second Regular Appeal can also be filed against the exparte order or decree of the lower court when the question is of public importance
Challenge can also be made on the incompetent jurisdiction whether territorial or pecuniary.
No second appeal can be filed when the parties have agreed to it or when the amount of subject matter is less than Rs 3000 except when the question of law involved.
Difference between first appeal & second appeal
- First appeal can be filed on the question of fact or law or both but the second appeal can be filed only on the basis of substantial question of law.
- First appeal lies to lower courts as well but the second appeal lies to the High court.
- First appeal is given in the sections 96 to 99-A, 107 and Order 41 of CPC.