WHAT IS SUBSTANTIAL QUESTION OF LAW

Adv Sherry Samuel Oommen: This article is authored by Adv Sherry Samuel Oommen. He specialises in the Constitution, tax and corporate laws and has also cleared the final exams of the Institute of Chartered Accountants of India, the Institute of Cost Accountants of India and the Institute of Company Secretaries of India. He has also completed his Masters's Degree in Commerce, apart from obtaining a Post Graduate Diploma in Business and Corporate Laws from Symbiosis, Pune. The views expressly are personal and should not be construed as a legal opinion. [e-mail].

In this article, I intend to dwell on an issue that concerns the life of every litigant who approaches the second appellate court, in most cases, the High Court in a state. The right to approach an appellate court is not an inherent right that devolves on a litigant. Such right of appeal can only be exercised if it is conferred by a statute. The right to appeal in the case of a second appeal is contingent upon their existing a "substantial" question of law. In this article, I intend to dwell upon the meaning of the phrase "substantial question of law". I must start with a caveat that the views stated are purely personal, which should not be construed as an expression of a legal opinion.

1. Distinction between "Question of law" and "Question of fact"

The term "question" has been judicially defined to mean anything inquired; an issue to be decided, based on pleadings of parties. There are various questions that come before a Court/ Tribunal. This could be as follows:

• A question of fact;

• A question of law; or

• A mixed question of fact and law.

1.1 Question of fact

The "question of fact" is whether a particular factual situation exists or not. Salmond on Jurisprudence states that a question of fact is one capable of being answered by way of demonstration. Further, a question of opinion is one that cannot be so answered. An answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong. For instance, the past history of a company's business is a matter of fact but its prospects in the future are a matter of opinion.

The distinction between a "question of fact" and an opinion has been well articulated by the Hon'ble Supreme Court in the case of Gadakh Yashwantrao Kankarrao Vs EV Alias Balasaheb (1994) 1 SCC 682.