NAZIR MOHAMED v. J. KAMALA & Ors.

HELD: 1.1 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. It was not open to the Respondent-Plaintiff to re-agitate facts or to call upon the High Court to reanalyze or re-appreciate evidence in a Second Appeal. [Para 25][777-B-C]

1.2 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. [Para 26][777-C-D] NAZIR MOHAMED v. J. KAMALA AND ORS. 765

1.3 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 the Second Appeal filed by the defendant. [Para 28][777-F]

1.4 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, as in the present case, a second appeal cannot be entertained. [Paras 32-34][779-D-F] Panchagopal Barua v. Vinesh Chandra Goswami AIR 1997 SC 1047 – relied on.

1.5 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. [Para 35][779-G; 780-A] Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 : [2001] 1 SCR 948 – relied on.

1.6 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, 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. [Para 36][780-B] Ramchandra v. Ramalingam AIR 1963 SC 302 : [1963] 3 SCR 604 – relied on. A B C D E F G H 766 SUPREME COURT REPORTS [2020] 7 S.C.R. A B C D E F G H

1.7 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. 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. 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. 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. [Para 37][780-C-G; 781-A-B]

1.8 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. When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, NAZIR MOHAMED v. J. KAMALA AND ORS. 767 the judgment of the High Court is vitiated in law. [Paras 57 and 59] [786-D-E; 788-B] A