2022 SCMR 2006
Scope of the jurisdiction of High Courts in second appeal under section 100, CPC and of the expression “contrary to law” used therein
Under Section 100 of the Code of Civil Procedure 1908 (“CPC”), a second appeal to the High Court lies only on any of the following grounds: (a) the decision being contrary to law or usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; and (c) a substantial error or defect in the procedure provided by CPC or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon merits. The scope of second appeal is thus restricted and limited to these grounds, as Section 101 expressly mandates that no second appeal shall lie except on the grounds mentioned in Section 100. But we have noticed that notwithstanding such clear provisions on the scope of second appeal, sometimes the High Courts deal with and decide second appeals as if those were first appeals; they thus assume and exercise a jurisdiction which the High Courts do not possess, and thereby also contribute for unjustified prolongation of litigation process which is already chocked with high pendency of cases.
No doubt, the expression “law” used in the phrase “the decision being contrary to law” in the ground (a) mentioned in Section 100 of the CPC is not confined to “statutory law” only, but also includes the “principles of law” enunciated by the constitutional courts, which have the binding force of law under Article 189 and 201 of the Constitution of the Islamic Republic of Pakistan 1973. And, it is an elementary principle of law that a court is to make a decision on an issue of fact on the basis of legally relevant and admissible evidence available on record of the case, which principle is also incorporated in the statutory law, that is, the first proviso to Article 161 of the Qanun-e-Shahdat Order 1984. The said proviso states in unequivocal terms that a judgment must be based upon facts declared by the Qanun-eShahdat Order to be relevant and duly proved.
The decision of a court is, therefore, considered “contrary to law” when it is made by ignoring the relevant and duly proved facts, or by considering the irrelevant or not duly proved facts. The expressions “relevant evidence” and “admissible evidence” are often used interchangeably, in legal parlance, with “relevant facts” and “duly proved facts” respectively, and a decision is said to be “contrary to law” and is open to examination by the High Courts in second appeal when: (i) it is based no evidence, or (ii) it is based on irrelevant or inadmissible evidence, or (iii) it is based on non-reading or misreading of the relevant and admissible evidence. A decision on an issue of fact that is based on correct reading of relevant and admissible evidence cannot be termed to be “contrary to law”; therefore, it is immune from scrutiny in second appeal. A High Court cannot, in such case, enter into the exercise of re-reading and re-appraisal of evidence, in second appeal, and reverse the findings of facts of the first appellate court, much less the concurrent findings of facts reached by the trial court as well as the first appellate court. It has, in second appeal, no jurisdiction to go into the question relating to weightage to be attached to the statements of witnesses, or believing or disbelieving their testimony, or reversing the findings of the courts below just because the other view can also be formed on the basis of evidence available on record of the case.
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