Nazir Mohammad vs J.Kamla and Others (Civil Appeal 2843-2844 of 2010)
On 27 August 2020, in the Supreme Court a Bench of Justice Navin Sinha and Justice Indira Banerjee delivered Judgment on the issue of deciding Second appeal by non-speaking order.
Whether the High Court can decide or entertain Second Appeal, without there being any Substantial Question of Law ?
Contention of Appellant:
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 Appeal No. 64 of 2000.
The Court Held
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, the judgment of the High Court is vitiated in law. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of Section 100 of the CPC.
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.
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.