Right of Appeal is not automatic, it is conferred by statute: Supreme Court 

Right of Appeal is not automatic, it is conferred by statute: Supreme Court 

The Supreme Court ruled that the right of appeal is not automatic, it is conferred by the statute.


The appeal filed by the Original Plaintiff, Chandrabhan, (since deceased, represented by his legal representatives), is against a final judgment and order passed by the Aurangabad Bench of the High Court of Judicature at Bombay, allowing Second Appeal filed by the Respondents, reversing the judgment and order passed by the Additional District Judge, Beed, in Regular Civil Appeal and dismissing Regular Civil Suit filed by the Original Plaintiff praying for the relief of declaration of ownership and perpetual injunction in respect of the suit property.

The Original Plaintiff examined himself as well as five other witnesses, including Prabhu Yogiraj Swami, the priest who conducted the rituals at the time of adoption, to prove that he had been adopted by Baliram. 

The Original Plaintiff also examined Shahurao Tulsiram Dhas to prove that he had the possession and cultivation of the suit lands. 

The Respondents, on the other hand, examined Original Defendant Champabai and several others to establish that the Original Plaintiff had not been legally and/or validly adopted by Baliram.  


The division bench of Justice Indira Banerjee and Justice J.K. Maheshwari said that it is well settled that a Second Appeal under Section 100 of the Civil Procedure Code, 1908 can only be entertained on a substantial question of law. 

The court observed 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 the Court.

It was stated by the court that to be ‘substantial’, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. 

“An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter” , the court added.

The bench summarized the principles relating to Section 100 of the CPC as; 

Firstly, an inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law.

Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

Secondly, the High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. 

“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” the bench added.

Thirdly, the general rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. 

The court noted that the Respondents in their Second Appeal before the High Court did not advert to any material evidence that had been ignored by the First Appellate Court. 

It was further noted that the Respondents also could not show that any wrong inference had been drawn by the First Appellate Court from proved facts by applying the law erroneously.

The bench stated that the 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” the court said. 

The court held that the questions raised in the High Court, did not meet the tests laid down by the Court for holding that the questions are substantial questions of law. 

Case title: Chandrabhan (deceased) through lrs. & Ors. v/s Saraswati & Ors.

Citation: ARISING OUT OF S.L.P.(C) NO.8736 OF 2016

Click here to  read the Order/Judgment 

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