Code of Civil Procedure, 1908 | Order 42

Order XLII Rule 2 CPC - Power of Court to Hear a Second Appeal on the Question Formulated by It

Order XLII Rule 2 of the Code of Civil Procedure, 1908 (CPC) addresses how a High Court identifies the substantial question of law when proceeding with a second appeal. It must be read together with Section 100 CPC and Order XLI Rule 11.

Text of Order XLII Rule 2 CPC

Power of Court to direct that the appeal be heard on the question formulated by it.

At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.

Meaning and scope of the rule

A second appeal is not an unrestricted rehearing of the evidence or a third opportunity to contest findings of fact. Under Section 100 CPC, a second appeal to the High Court from an appellate decree is maintainable on the statutory ground that the case involves a substantial question of law, subject to the conditions and exceptions in the CPC and any applicable special law.

Order XLII Rule 2 links the stage of directing a second appeal to be heard with the requirement to formulate that question. The High Court may confine the hearing to the substantial question or questions it has identified. An appellant cannot insist on arguing additional grounds without leave of the Court in accordance with Section 100.

Section 100 CPC - Second appeal

Section 100 permits a second appeal to the High Court from an appellate decree of a subordinate court when the High Court is satisfied that the case involves a substantial question of law. The memorandum of appeal must precisely state that question. Where the High Court is satisfied that such a question is involved, it must formulate the question, and the appeal is ordinarily heard on the question so formulated.

Under the proviso to Section 100(5), the High Court may, for reasons to be recorded, hear the appeal on another substantial question of law not previously formulated if it is satisfied that the case involves that question. The respondent may also argue that the formulated question does not arise in the case.

Order XLI Rule 11 CPC - Dismissal without sending notice to lower court

Order XLI Rule 11 governs the appellate court's power, at the preliminary stage, to dismiss an appeal after hearing the appellant or the appellant's pleader, without sending notice to the lower court. Order XLII Rule 2 addresses the formulation of the substantial question of law when an order is made for the hearing of a second appeal at that stage.

Order XLII Rule 1 CPC - Procedure

Order XLII Rule 1 applies the rules of Order XLI, so far as may be, to appeals from appellate decrees. These procedural rules operate subject to the specific requirements governing second appeals, especially Section 100.

Practical effect in a second appeal

The appellant should identify a genuine substantial question of law in the memorandum of second appeal, rather than merely dispute the factual conclusions of the courts below. The High Court determines whether the statutory threshold is met and, where appropriate, formulates the question for hearing. The parties should address that question. If a further substantial question emerges, it may be considered only in the manner permitted by Section 100, including the recording of reasons where required.

Important: Not every legal argument is a substantial question of law. Whether a particular question qualifies depends on the record, the applicable law and the circumstances of the case. State amendments and special statutory appeal provisions should also be checked where relevant.

Frequently asked questions

Can a second appeal be heard on questions of fact alone?

Ordinarily, no. Section 100 CPC requires a substantial question of law. A factual issue may be relevant to that question in exceptional circumstances, but mere disagreement with factual findings is insufficient.

Can the appellant raise a new question during the hearing?

Not as of right. Under Order XLII Rule 2 and Section 100(5), a further substantial question of law may be heard if the High Court is satisfied that it arises and records the reasons required by the statutory proviso.

Does the High Court have to formulate a substantial question of law?

Yes, when admitting a second appeal for hearing under Section 100. The formulated question defines the ordinary scope of the hearing, subject to the statutory proviso.

Official legislation and further reading

Consult the India Code official legislation portal for the Code of Civil Procedure, 1908 (Act 5 of 1908), including Section 100, Order XLI and Order XLII. See also the LawDadi CPC sections, orders and rules index.

Legal information only. The statutory text and its application should be verified against the current official version and relevant court decisions before use in litigation.