Only Question Of Law not Fact Can be Resolved in Second Appeal U/S 100 of CPCP: SC

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Second Appeal is not usually available to the parties, but there is a special provision, section 100, in CPC which provides for second appeal. The Supreme Court has recently rendered a judgment in CIVIL APPEAL NO. 307 OF 2017, on the concept of second appeal and its scope, and how it is different from the first appeal.

The Court has very categorically held that second appeal cannot be treated as first first appeal and the grounds available under the first appeal are not available under the second appeal. The Court has referred to section 100 and has ruled that the said section constricts the limits of second appeal only to question of law which causes miscarriage of justice to one of the parties. The courts cannot set over the judgment in second appeal and delve into factual controversies as it is done in first appeal.

There are only three grounds under which a second appeal lies to the High Court under section 100 “such as (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law, or (c) a substantial error or defect in the procedure provided by the CPC or by any other law for the time being in force, which may possibly have produced an error or defect in the decision of the case upon merits.”

The Court has also made reference to numerous precedents at the end of the judgment, while allowing the petition and remanding it back to the High Court for deciding it afresh after affording opportunity of hearing to the parties.

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