WHAT IS 'QUESTION OF LAW' & ' SUBSTANTIAL QUESTION OF LAW'

The maintainability of an appeal before the high court or the Supreme Court depends on the narrow determination/validity of issues of laws involved. The courts in appeal should be convinced that a substantial question of law is involved for its indulgence into the matter and not mere question of law. The legislation does not describe ‘Question of law’ and ‘Substantial question of Law’ but judicial precedents overtime has shaped and differentiated its true meaning.

A Question of law arises when there is ambiguity and uncertainty in application of a settled legal

provision to the facts and circumstances of the case and this question of law becomes substantial

when the question of law has not been dealt with or when there are conflicting judicial opinions by different benches of the High Court or the Supreme Court that requires effective interpretation and permanent judicial consideration.

• What is the test for determination on whether a Substantial Question of Law exists or not?

The Supreme Court in Sir Chunilal V. Mehta & Sons vs. Century Spinning and Manufacturing CO 1962 SCC Online SC 57 (Para 6) opinionated that : “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 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.”

Similarly the Apex Court in Hero Vinoth vs Seshammal 2006 SCC Online SC 555 (Para 23) reiterating Santosh hazaria vs. Purushottam Tiwari (2001) 3 SCC 179

observed that A substantial question of law must be debatable and must not be previously settled by the law of the land or a binding precedent. A question of law, which affects the rights of the parties, becomes substantial when there is no specific provision of law or binding principle to that affect.

A Question was referred to a Full bench of Madras High Court by the then CJI Subba Rao to decide “Whether the words ‘substantial question of law’ occurring in Art. 133 of the Constitution of India mean an important or difficult question of law or any question of law affecting the rights of parties?”  in  Rimmalapudi Subba Rao vs. Noony Veeraju And Others. 1951 SCC Online Mad 100 (Pg. 715)

The full bench held that “When a question of law is fairly arguable and there is room for difference of opinion on it, then such a question would be a substantial question of law. When a point of law is practically covered by a decision of the highest authority Court then it would not be a substantial question. If the general principles to be applied in determining a question are well settled a mere application of such principles would not involve a substantial question of law. If the principle to be applied or the point of law arising in the case is not well established,

then certainly that would be a substantial question of law…. if there is conflict of judicial

opinion among the High Courts and there is no direct decision of the highest Court on any

question of law, then that would be a substantial question of law, though the decisions of the

particular High Courts of which leave is sought might have been uniform on the question.

That fact may be a very good ground for dismissing a second appeal if the lower Courts had

followed the rulings of the High Court, but for an application for leave to appeal to the

Supreme Court, I think the very fact of divergence of opinion among the High Courts is

conclusive evidence of the existence of a substantial question of law."

• The scope of second appeal under Section 100 of the Civil Procedure Code, 1908 is limited and can only be entertained if there is substantial question of law involved.

In Chandrabhan v. Saraswati, 2022 SCC OnLine SC 1273 (Para 35) the SC held that “Right of appeal is not automatic. Right of appeal is conferred by statute. When statute

confers a limited right of appeal restricted only to cases which involve substantial questions

of law, it is not open to this Court to sit in appeal over the factual findings arrived at by the

First Appellate Court.” and in Ram Prasad Rajanak vs. Nand Kumar & bros (1998) 6 SCC 748 (Para 7) it was observed that Once the proceedings of the High Court is treated as a second appeal under section 100 CPC 1908, then the restrictions provided in the said section would come into play and the High Court ought to only deal with the second appeal if substantial question of law arose for consideration.

In Kshitish chanadrs purkait vs. Santosh Kumar Purkait. (1997) 5 SCC 438 (Para 10) the SC opined that It is the bounden duty of the court to formulate substantial question of law at the initial stage or in exceptional cases, the court may formulate substantial question at a later stage under section 100(5) CPC 1908, as it is sine qua non, but the court ought to put to notice to the opposite party and provide a fair and proper opportunity to prove its point on the substantial

questions of law farmed, failure to do so would lead to denial of natural justice.

A recent judgement of penned by Justice Oka in Nex Pal & Ors vs. Nagar Palika Parishad & Ors 2024 INSC574 (Para 3) observed that the act of hearing an appeal without any substantial question of law is illegal and contrary to section 100 CPC 1908. A second appeal can only be heard on the substantial questions of law formulated earlier or at the time of admission of appeal with proper opportunity to the parties to argue on the basis of the said substantial questions of law framed.