“The existence of a ‘substantial question of law’ is the sine qua non for the exercise of jurisdiction under Section 100. The principles for deciding when a question of law becomes a ‘substantial question of law’, have been enunciated by a Constitution Bench of this Court in Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314. Hero Vinoth v. Seshammal, (2006) 5 SCC 545 summarized the tests. To be ‘substantial’, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.
The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179.
An entirely new point, raised for the first time, before High Court, is not a question involved in the case, unless it goes to the root of the matter.
When no ‘substantial question of law’ is formulated, but a ‘second appeal’ is decided by High Court, the Judgment of High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose, AIR 2014 SC 152.”
– Hon’ble Justice Indira Banerjee, Nazir Mohamed v. J. Kamala, [Civil Appeal Nos. 2843-2844 of 2010].
There can be no dispute with the proposition, to be a question of law involved in the case, there must be first a foundation laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, as reiterated by this Court in Nazir Mohamad v. J. Kamala, 2020 SCC OnLine SC 676 rendered in the context of a ‘second’ appeal’ under Section 100.
– Hon’ble Justice Indira Banerjee, Dena Bank (Bank of Baroda) v. C. Shivakumar Reddy, [Civil Appeal No. 1650 of 2020] decided on 04.08.2021.
The rule, sans a ‘substantial question of law’ High Courts cannot interfere with findings of Lower Court or concurrent findings of fact, is subject to two important caveats. The first is, if the findings of fact are palpably perverse or outrage the conscience of Court; in other words, if it flies on the face of logic, given the facts on the record, interference would be justified. The other is where the findings of fact may call for examination and be upset, in the limited circumstances spelt out in Section 103.
– Hon’ble Justice S. Ravindra Bhat, K.N. Nagarajappa v. H. Narasimha Reddy, [Civil Appeal No. 5033-5034 of 2009] decided on 09.09.2021.
Also see, BSES Rajdhani Power v. Delhi Electricity Regulatory Commission, [Civil Appeal No. 4324 of 2015] decided on 18.10.2022.