“8. Generally speaking, an appellant is
not to be allowed to set up a new case in
second appeal or raise a new issue
(otherwise than a jurisdictional one), not
supported by the pleadings or evidence on
the record and unless the appeal involves a
substantial question of law, a second
appeal shall not lie to the High Court
under the amended provisions. In the
present case, no such question of law was
formulated in the memorandum of appeal in
the High Court and grounds (6) and (7) in
the memorandum of the second appeal on
which reliance is placed did not formulate
any substantial question of law. The
learned single Judge of the High Court
also, as it transpires from a perusal of
the judgment under appeal, did not
formulate any substantial question of law
in the appeal and dealt with the second
appeal, not on any substantial question of
law, but treating it as if it was a first
appeal, as of right, against the judgment
and decree of the subordinate Court. The
intendment of the legislature in amending
Section 100 CPC was, thus, respected in its
breach. Both the trial court and the lower
appellate court had decided the cases only
on questions of fact, on the basis of the
pleadings and the evidence led by the
parties before the Trial Court. No pure
question of law nor even a mixed question
of law and fact was urged before the Trial
Court or the First Appellate Court by the
respondent. The High Court was, therefore,
not justified in entertaining the second
appeal on an altogether new point, neither
pleaded nor canvassed in the subordinate
courts and that too by overlooking the
changes brought about in Section 100 CPC by
the Amendment Act of 1976 without even
indicating that a substantial question of
law was required to be resolved in the
second appeal. to say the least, the
approach of the High Court was not proper.
It is the obligation of the courts of law
