Second appeal lies only on a substantial question of law
Civil Procedure Code , 1908 (V of 1908), Section 100, 103 - Law on the issue can be summarised to the effect that a second appeal lies only on a substantial question of law and it is necessary to formulate a substantial question of law before the second appeal is decided - The issue of perversity itself is a substantial question of law and, therefore, Section 103 C.P.C. can be held to be supplementary to Section 100 C.P.C., and does not supplant it altogether - Reading it otherwise, would render the provisions of Section 100 C.P.C. redundant - It is only an issue that involves a substantial question of law, that can be adjudicated upon by the High Court itself instead of remanding the case to the court below, provided there is sufficient evidence on record to adjudicate upon the said issue and other conditions mentioned therein stand fulfilled - Thus, the object of the Section is to avoid remand and adjudicate the issue if the finding(s) of fact recorded by the court(s) below are found to be perverse - The court is under an obligation to give notice to all the parties concerned for adjudication of the said issue and decide the same after giving them full opportunity of hearing.
2010 SCeJ 002 MUNICIPAL COMMITTEE, HOSHIARPUR versus PUNJAB STATE ELECTRICITY BOARD
There is no prohibition on entertaining a second appeal even on a question of fact
Civil Procedure Code , 1908 (V of 1908), Section 100, 103 - There is no prohibition on entertaining a second appeal even on a question of fact provided the Court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse - But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts.
Held, If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eyes of law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated.
2010 SCeJ 002 MUNICIPAL COMMITTEE, HOSHIARPUR versus PUNJAB STATE ELECTRICITY BOARD
Before powers u/s 103 C.P.C. can be exercised by the High Court in a second appeal, the following conditions must be fulfilled
Civil Procedure Code , 1908 (V of 1908), Section 100, 103 - Before powers u/s 103 C.P.C. can be exercised by the High Court in a second appeal, the following conditions must be fulfilled:
(i) Determination of an issue must be necessary for the disposal of appeal;
(ii) The evidence on record must be sufficient to decide such issue; and
(iii) (a) Such issue should not have been determined either by the trial court, or by the appellate court or by both; or
(b) such issue should have been wrongly determined either by trial court, or by the appellate court, or by both by reason of a decision on substantial question of law.
If the above conditions are not fulfilled, the High Court cannot exercise its powers u/s 103 CPC.
Thus, it is evident that Section 103 C.P.C. is not an exception to Section 100 C.P.C. nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 C.P.C. in service, the High Court has to record a finding that it had to exercise such power, because it found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below
2010 SCeJ 002 MUNICIPAL COMMITTEE, HOSHIARPUR versus PUNJAB STATE ELECTRICITY BOARD