Procedural defect in first appeal requires proof that the point was actually argued, not just pleaded in the memorandum.

A procedural defect under Section 100(1)(c) arises only where the error affects the merits, not merely because every ground in the memorandum of appeal is not separately discussed. A court is presumed to have considered the points actually urged before it, and that presumption can be rebutted only by material showing the contention was in fact argued. In the absence of an affidavit or other evidence demonstrating that the alleged settlement plea was pressed before the first appellate court, the mere inclusion of that ground in the memorandum did not establish procedural failure. The alleged omission therefore did not amount to a substantial error or defect in procedure.

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Issues: Whether the first appellate court committed a substantial error of procedure by not framing a point or recording a decision on the alleged settlement pleaded in the memorandum of appeal, and whether, in the absence of rebuttal, it must be presumed that the ground was not pressed.

Analysis: A defect under Section 100(1)(c) arises only when there is a procedural error affecting the merits, not merely because every ground mentioned in the memorandum of appeal is not separately noticed in the judgment. The proper approach is to presume that a court has performed its duty and dealt with the points actually urged before it. That presumption is rebuttable, but in the absence of an affidavit or other material showing that the contention was in fact argued, the mere presence of a ground in the memorandum of appeal does not establish that the appellate court failed in its duty. The record showed no sufficient rebuttal of the presumption that the alleged settlement was not pressed.

Conclusion: The alleged omission did not amount to a substantial error or defect in procedure, and the contention failed.

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