A.M. Bhattacharjee, J.@mdashThe CPC was applied to the Andaman & Nicobar Islands by section 14 of the Andaman 8 Nicobar Regulation, being Regulation No. III of 1876, with the modification that section 102 of the Code was deleted and section 100and section 11.5 were substituted by new sections. u/s 100, so substituted, second appeal was to lie to the High Court from any appellate decree passed by any court subordinate thereto, provided such appellate decree reversed or modified the decision of the Trial Court on the point material to the merit of the case and provided further that it appeared to the Court, on a perusal of the ground of appeal and the copies of the judgment of the Courts below, that a further consideration of the case was necessary for the ends of justice. A second appeal under the aforesaid section thus amounted almost to a third round of trial on facts as well as law, where the first appellate decree was of variation or reversal though a second appeal could not lie against an appellate decree of affirmance. This position continued in these Islands upto 1950 when the Islands became incorporated in the Union of India as a Part ''D'' Territory under the Provisions of the Constitution of India. As such Part ''D'' Territory, the Islandss, under Article 243 of the Constitution, as it stood then, were administered by the President acting through a Chief Commissioner and under Article 243(2), the-. President was empowered to make Regulation for the peace and good government of such Territory and by such Regulation could amend or repel any existing Law. In the exercise of such powers, the President promulgated Regulation II of 1950, whereby section 14 of the Regulation III of 1876, as aforesaid, has been substituted by a new section 14, which simply provides that "in the application of the CPC 1908, to the Andaman and Nicobar'' Islands, the functions, of the High Court under that Code shall be discharged by the High Court in Calcutta."
2. As already noted, the old section 14 of the Regulation III of 1876 actually made the CPC applicable to these Islands with the modification as noted at the outset. That section in terms provided that "the CPC (Act V of 1908) shall be in force in the Andaman 6 Nicobar Islands" subject to the modifications made therein whereby, as pointed out earlier, section 100 of the Code dealing with second appeals, was substituted by a new Section. The said section 14 of the Regulation of 1876, therefore, was the authority for the application of the CPC in the Islands and that Section virtually legislated by reference the provisions of the CPC for these Isslands. The new section 14, in repealing and replacing the old section 14, has, as already noted, merely provided that the High Court at Calcutta shall be the High Court for the Islands in discharging the functions under the Code, without anywhere expressly providing, as was provided in the old section 14, that the CPC shall apply to and shall be in force in the Islands. The new section 14 proceeded on the basis and took it for granted that the CPC continued to be in force in the Islands, even though the old section 14 which made the CPC applicable to the Islands stood repealed and replaced. What then was the bias for the continued application of the Code in the Islands, after the repeal of the old section 14 which made the Code application here, when neither the new section14 substituted by the Regulation II of 1950 nor any other provision therein provided for the enforcement and application of the Code ?
3. It appears that Section 1(3) of the CPC 1908, as adapted by the Adaption of Laws Order, 1950 itself began to provide for the application of the Code here as the Territorial Extent Clause of the Code, as it stood then, clearly provided for such application to the whole of India, though excluding certain territories, but not excluding these Islands. At any rate, if we now look at the Territorial Extent Clause in section'' 1(3) of the Code, as substituted by the CPC (Amendment) Act, 1976, there can be no room for doubt that the CPC of 1908 operates in these Islands on its own force without the aid of any other legislation, whether by way of reference or incorporation. And once we hold so, as we do, we would have to hold that the provisions of section 100, as now substituted by the Amendment Act of 1976, shall govern all second appeals in these Islands. We have adverted to this aspect in some details as we find that there is some" confusion still lurking as to the sanction for applicability of the CPC and its amendment of 1976 in these Islands in some quarters.
4. As is well known, under the new section 100, a sec(sic) appeal can lie to the High Court only when the High Court is satisfied that "the case involves a substantial question of law". As we had occasions to point out elsewhere with reference to the relevant Report of the Law Commission, on the basis whereof Amendment Act of 1976 was framed, the new section 100 was enacted to circumscribe further the limit of second appeal under the old section, which was enlarged almost beyond measure by a myriad of judicial decision and, as observed by the Supreme Court in Mahindra & Mahindra (AIR 1979 Supreme Court 798 at 810), the new section 100 has provided for a "highly stringent ground, namely that there should be a substantial " question of law" to warrant and sustain a second appeal. The tests to determine what is a "substantial question of Law" were formulated by a five Judge Bench of the Supreme Court in
The proper test for determining whether a question of law raised in the case is substantial would in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an ''open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to he applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be a substantial question of law.
5. The later three Judge Bench decision of the Supreme Court in Mahindra 8 Mahindra (Supra) Las (at 812) adopted those tests laid down in Chunilal V. Mehta (Supra) as the tests to be applied in determining as to whether there is a substantial question of law within the meaning of section 100 of the Code and it has been observed (at 812) that "what should be the test for deterring whether a question of Law raised in an appeal is substantial has been ''laid down by this Court in
6. Governing ourselves, as we must, by these tests, we cannot but hold that the present second appeal, does not involve any question of law, far less any substantial question of law. The suit giving rise to the second appeal was a suit for specific performance of an agreement to sell and in the alternative for refund of consideration money. The Trial Court decreed the suit in its entirely decreeing specific performance and also the refund of consideration money in the alternative. In appeal, however, the Appellate Court has set aside the decree for specific performance but has maintained the alternative decree for refund of consideration money. It has been concurrently found by both the Courts below that there was a written agreement for sale to which the appellant was a party. Both the courts concurrently over-ruled the contention of the appellant that he executed the agreement without due knowledge as to the contents thereof. This is evidently a question of fact. Both the courts have also concurrently found that the recital contained in the agreement as to the receipt of the consideration money was true and that the appellant duly received the consideration money as recorded in the agreement. This is also obviously a question of fact. These two questions of fact would have been unassailable in second appeal even under the provisions of section 100 of the Code of Civil Procedure, as it stood before the Amendment Act of 1976, whereunder a second appeal could lie even against a finding of fact, if the same was arrived at on application of wrong principles of law, or on no evidence at all, or was such as could not be arrived at by any reasonable person. We do not find any of the findings to be based on no evidence or to have been arrived at on application of wrong legal principles or to be such which could not be arried at by any reasonable person. The second appeal, therefore, would not have been maintainable even under the more liberal provisions of section 100, as it stood earlier before 1976, and, therefore, cannot obviously be maintainable under the present section.
7. The first Appellate Court has not aside the decree for specific performance on the ground that the property agreed to be sold by the agreement in question could not be identified either on the basis of the description given in the agreement or on the basis of any other evidence on record. We have no reason to think that the Appellate Court has committed any error in modifying the decree on the said ground.
8. The second appeal, therefore, in our view, has no substance and must accordingly fail. We accordingly dismiss the appeal and affirm the judgment and decree passed by the First Appellate Court; but, we, however, make no order as to costs.
Ajit Kumar Nayak, J.
I agree.
