Table Of Contents

Statement Of Problem ................................................................................................2

Research Methodology ..............................................................................................2

Scope ..........................................................................................................................2

Substantial Question Of Law Of General Importance ...............................................5

Judicial Interpretation Of Substantial Question Of Law ...........................................5

Tests Laid Down ........................................................................................................9

Substantial Question Of Law Not Involved: Illustrative Cases ...............................10

Conclusion: ..............................................................................................................11

Bibliography.............................................................................................................12

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 STATEMENT OF PROBLEM
How to determine whether a question of law is a substantial question of law of general
importance?

RESEARCH METHODOLOGY
The research in this project is done by doctrinal method.

SCOPE

Section 109 of the Code provides that an appeal shall lie to the Supreme Court from any

Judgment, decree or final Order in a civil proceeding of a High Court, subject to grant of

certificate by the High Court.

The right to appeal contemplated under this Section is further subject to the provisions of

Chapter IV of Part V of the Constitution of India and the rules made from time-to-time. The

Parliament took care to note that the language of Section 109 was always consistent and almost

in pari materia with the language of Article 133(1) as amended by the Constitution (30th

Amendment) Act from time to time. There was thus a parallelism. Thus it would be difficult to

read that there were two rights of appeal conferred independently on the parties to a suit

culminating an appeal in the High Court.1

An Order is final if it amounts to a final decision relating to the rights of the parties in dispute in

the civil proceeding. If after the Order, the civil proceeding still remains to be tried and the rights

1
Salig Ram v. Uma Shankar AIR1976All495.

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in dispute between the parties have to be determined, the Order is not a final Order within the

meaning of Article 133 of Constitution of India.2

Both requirements as mentioned in clauses (i) and (ii) must be satisfied before the certificate is

granted under Section 109 of the Code.3

It is well settled that a mere existence of a substantial question of law is not sufficient to give the

High Court jurisdiction to give leave to appeal under Section 109 (c) Code of Civil Procedure;

the question must also be of great public or private importance. What is a question of general

public or private importance would depend on the facts of each case. But if the decision of the

question is likely to form a precedent and affect numerous cases that may be a reason for holding

that the question is a matter of great public importance.4

What was contemplated by Section 109 (c) was a class of cases in which there might be involved

questions of public importance, or which might be important precedents governing numerous

other cases, or, in which, while the right in dispute was not expressly measurable in it was of

great public or private importance.5

The proper test for determining whether a question of law raised in the case is substantial would

be whether it is of general public importance or whether it directly and substantially affects the

rights of the parties and if so whether it is either an open question in the sense that it is not finally

settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty

2
Jethanand and Sons v. The state of Uttar Pradesh AIR1961SC794
3
State Bank of India v. N. Sundara Mani
4
Mst Gulab Bai v. Manphool Bai AIR1953Raj42
5
Kesava Mudaliar v. Govindachariar AIR 1924 Mad 231.

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or calls for discussion of alternative views. If the question is settled by the highest Court or the

general principles to be applied in determining the question are well settled and there is a mere

question of applying those principles or that the plea raised is palpably absurd the question

would not be a substantial question of law

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 SUBSTANTIAL QUESTION OF LAW OF GENERAL

IMPORTANCE
An appeal would lie to Supreme Court if the High Court certifies that the case involves a

substantial question of law of general importance. The expression substantial question of law of

general importance has not been defined anywhere in the code, but it is clear that the High Court

can grant certificate under section 109 only when it is satisfied that the question of law involved

in the case is not only substantial but also of genral importance. In other words, the substantial

question of law must be such that, apart from the parties to the litigation, the general public

should be interested in determination of such question by the Supreme Court, e.g. it would affect

a large number of persons or a number of proceedings involving the same question.6 Therefore if

the question is settled by the Supreme Court, the application of the principle to the facts of a

particular case does not make the question a substantial question of law of general importance.7

JUDICIAL INTERPRETATION OF SUBSTANTIAL QUESTION OF

LAW

In State Bank of India & Ors vs. S.N. Goyal8, the Honble Supreme Court laid down as to what

was the substantial question of law in the following words:

Second Appeals would lie in cases which involve substantial questions of law. The word

substantial prefixed to question of law does not refer to the stakes involved in the case, nor

6
Chunilal V. Mehta and Sons Ltd. v Century Spg. and manufacturing Co. Ltd. AIR 1962 SC 1314
7
ibid
8
(2008) 8 SCC 92

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intended to refer only to questions of law of general importance, but refers to impact or effect of

the question of law on the decision in the lis between the parties. Substantial question of law

means not only substantial questions of law of general importance, but also substantial question

of law arising in a case as between the parties. In the context of Section 100 CPC, any question

of law which affects the final decision in a case is a substantial question of law as between the

parties. A question of law which arises incidentally or collaterally, having no bearing on the

finaloutcome, will not be a substantial question of law. Where there is a clear and settled

enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said

that the case involves a substantial question of law. It is said that a substantial question of law

arises when a question of law, which is not finally settled by this Court (or by the High Court

concerned so far as the State is concerned), arises for consideration in the case. But this

statement has to be understood in the correct perspective. Where there is a clear enunciation of

law and the lower court has followed or rightly applied such clear enunciation of law, obviously

the case will not be considered as giving rise to a substantial question of law, even if the question

of law may be one of general importance. On the other hand, if there is a clear enunciation of law

by thisCourt (or by the High Court concerned), but the lower court had ignored or misinterpreted

or misapplied the same, and correct application of the law as declared or enunciated by this

Court (or the High Court concerned) would have led to a different decision, the appeal would

involve a substantial question of law as between the parties. Even where there is an enunciation

of law by this Court (or the High Court concerned) and the same has been followed by the lower

court, if the appellant is able to persuade the High Court that the enunciated legal position needs

reconsideration, alteration, modification or clarification or that there is a need to resolve an

apparent conflict between two viewpoints, it can be said that a substantial question of law arises

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or consideration. There cannot, therefore, be a straitjacket definition as to when a substantial

question of law arises in a case

In Hero Vinoth v. Seshammal9

It was laid down that 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,

In case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar10

it has been explained as to what can be termed as substantial question of law. It was held:-

"If the question of law termed as substantial question stands already decided by a larger bench of

the High Court concerned or by the Privy Council or by the federal Court or by the Supreme

Court, its mere wrong application to facts of the case would not be termed to be a substantial

question of law. Where a point of law has not been pleaded or is found to be arising between the

parties in the absence of any factual format, a litigant should not be allowed to raise that question

as substantial question of law in second appeal. The mere appreciation of the facts, the

documentary evidence or the meaning of entries and the contents of the document cannot be held

9
AIR 2006 SC 2234
10
AIR 1999 SC 2213

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to be raising a substantial question of law. But where it is found that the first appellate Court has

assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal,

treating it as substantial question of law. Where the first appellate Court is shown to have

exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of

procedure requiring interference in second appeal."

Test laid down in Sir Chunilal V. Mehta and Sons Ltd. v Century Spinning and

Manufacturing Co. Ltd.11

The proper test for determining whether a question of law raised in the case is substantial would,

in our opinion, be whether it is of general public importance or whether it directly and

substantially affects the rights of the parties and if so whether it is either an open question in the

sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or

is not free from difficulty or calls for discussion of alternative views. If the question is settled by

the highest Court or the general principles to be applied in determining the question are well

settled and there is a mere question of applying those principles or that the plea raised is palpably

absurd the question would not be a substantial question of law. But if the question is settled by

the Apex Court or the general principles to be applied in determining the question are well-

settled, mere application of it to a particular set of facts would not constitute a substantial

question of law - Krishan Kumar Aggarwal v. Assessing Officer 12[2004] 138 Taxman 1/266

ITR 380 (Delhi).

11
AIR 1962 SC 1314
12
2004] 138 Taxman 1/266 ITR 380 (Delhi).

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In Mahavir Woollen Mills v. CIT13

A question of fact becomes a question of law, if the finding is either without any evidence or

material, or if the finding is contrary to the evidence, or is perverse or there is no direct nexus

between the conclusion of fact and the primary fact upon which that conclusion is based. But, it

is not possible to turn a mere question of fact into a question of law by asking whether as a

matter of law the authority came to a correct conclusion upon a matter of fact.

TESTS LAID DOWN

A question is substantial question of law on the following grounds:

(1) whether, directly or indirectly, it affects substantial rights of the parties, or

(2) the question is of general public importance, or

(3) whether it is an open question, in the sense that the issue has not been settled by

pronouncement of the Supreme Court or the Privy Council or by the Federal Court, or

(4) the issue is not free from difficulty, or

(5) it calls for a discussion for alternative view.

The Supreme Court held in CIT v Anusuya Devi14 that the High Court may decline to answer

any question of law which is purely academic and the answer to which would have no bearing on

any actual right or liability of the taxpayer, or if the answer would not dispose of the real

questions in issue between the parties, or if the question is unnecessary or irrelevant.

13
(245 ITR 297)
14
68 ITR 750

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In DCIT v. Marudhar Hotels15

With a view to ensure that the purpose of amendment in the Income-tax Act introducing Section

260A is not frustrated, it is expedient to state the parameters as follows ;

(a) Whether the substantial question of law raised, directly and substantially affects the rights of

the parties and if so, whether it is either an open question in the sense that it is not finally settled

by the apex court or by the concerned High Court or is not free from difficulty or calls for

discussion of alternative views ;

(b) If the question is settled by the highest court or the general principles to be applied in

determining the question are well settled and there is a mere question of applying those

principles or that the plea raised is palpably absurd the question would not be a substantial

question of law.

SUBSTANTIAL QUESTION OF LAW NOT INVOLVED:

ILLUSTRATIVE CASES

The following questions were held not to be substantial questions of law :

i. Concurrent findings of fact recorded by courts of below ;

ii. Finding of fact recorded by the appellate court;

iii. Where two views are possible;

iv. Where new case is sought to be made out in second appeal;

15
245 ITR 138

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v. Where new plea is raised which is either based on fact, or on mixed question of fact and law,
or on mere question of law ( and not on substantial question of law);

vi. Where the question raised is too general or omnibus in nature;

vii. Where inference as to finding of fact has been drawn on the basis of evidence and material
on record;

viii. Where the question is finally concluded by the Supreme Court, Privy Council or Federal
Court;

ix. Where a finding of fact has been attacked on the ground that it is erroneous (as against
perverse);

x. Where the High Court feels that the reasoning of the first appellate court is not proper, etc.

CONCLUSION:
Thus the basic difference between section 100 and section 109 of CPC is that the section 100

involves only substantial question of law whereas section 109 involves question of law of

general importance which narrows down its scope as compared to the former section.After going

through the series of cases it can be concluded that the following questions may be said to be

substantial questions of law :

i. A question of law on which there is conflict of judicial opinion;

ii. Recording of a finding without any evidence of record;

iii. Inference from or legal effect of proved or admitted facts;

iv. Disregard or non-consideration of relevant or admissible evidence;

v. Taking into consideration irrelevant or inadmissible evidence;

vi. Misconstruction of evidence or documents;

vii. Interpretation or construction of material documents;

viii. A question of admissibility of evidence;

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ix. Placing of onus of proof on a wrong party;

x. Disposal of appeal before disposing an application for additional evidence under Order 41
Rule 27, etc.

BIBLIOGRAPHY
www.manupatra.com
www.indiankanoon.com
C.K.Takwani, Civil Procedure Code, Eastern Book Company, Sixth edition
M.P jain, Constitution of India,

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