HASMAT ALI versus AMINA BIBI & ORS. on 29 November 2021

1. Leave granted.

2. This appeal is preferred against the Order dated 31.07.2019Gpassed by the High Court of Orissa at Cuttack in Regular Second AppealNo. 403 of 2017 whereby the High Court had dismissed the appeal inlimine thereby confirming the judgment dated 04.08.2017 passed by theAdditional District Judge, Rourkela, in RFA No. 15 of 2015.

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3. Late Md. Mukim, who expired during the trial, was the plaintiffand Hasmat Ali was defendant in the Civil Suit No. 15 of 2009 on the fileof the Civil Judge, Senior Division, Rourkela. This suit was filed to seeka declaration that the defendant was a tenant of the plaintiff till 31.03.2003,eviction of the defendant from the suit scheduled property and for certainother reliefs. The defendant entered appearance in the said suit andfiled the written statement. After trial, the suit was decreed in part on21.07.2015 and the defendant was directed to deliver vacant possessionof the suit shop to the plaintiff.

4. The defendant challenged the said judgment by filing an appealand the Appellate Court dismissed the appeal on 04.08.2017. It isunnecessary to record the other factual matrix of the case for the purposeof deciding the question involved in this appeal.

5. The defendant filed regular second appeal before the HighCourt and the High Court dismissed the said appeal in limine. The orderof the High Court dismissing the appeal is as under:

R.S.A. No. 403 of 2017

6. The order of the High Court is challenged by the defendantmainly on the ground that it is not supported by any reasons. Learnedcounsel for the appellant submits that the findings of the Trial Court andalso by the First Appellate Court are bad in law. He submits that theappeal involves substantial questions of law and that the High Courtought to have entertained the appeal for considering these questions oflaw. It was argued that, at any rate, the High Court was not justified indismissing the appeal in limine.

7. On the other hand, learned counsel appearing for the respondenthas supported the order of the High Court.

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46SUPREME COURT REPORTS

A8. Having regard to the contentions urged, the only question forconsideration is whether the High Court was justified in dismissing thesecond appeal, filed under Section 100 of the CPC, in limine.

9. Section 100 of the CPC reads as under:

“100. Second appeal.—(1) Save as otherwise expresslyprovided in the body of this Code or by any other law for thetime being in force, an appeal shall lie to the High Court fromevery decree passed in appeal by any Court subordinate to theHigh Court, if the High Court is satisfied that the case involvea substantial question of law.

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(2) An appeal may lie under this section from an appellatedecree passed ex-parte.

(3) In an appeal under this section, the memorandum of appealshall precisely state the substantial question of law involved inthe appeal.

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(4) Where the High Court is satisfied that a substantial questionof law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulatedand the respondent shall, at the hearing of the appeal, be allowedto argue that the case does not involve such question:

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Provided that nothing in this sub-section shall be deemed totake away or abridge the power of the Court to hear, for reasonsto be recorded, the appeal on any other substantial question oflaw, not formulated by it, if it is satisfied that the case involvessuch question.”F

10. Rules 1 to 3 of Order XLII of the CPC provide for procedurefor deciding a second appeal in the following terms:

“Order XLII

APPEALS FROM APPELLATE DECREESG

1. Procedure.—The rules of Order XLI shall apply, so far asmay be, to appeals from appellate decrees.

2. Power of Court to direct that the appeal be heard onthe question formulated by it.—At the time of makingan order under rule 11 of Order XLI for the hearing of a H

second appeal, the Court shall formulate the substantialquestion of law as required by section 100, and in doing so,the Court may direct that the second appeal be heard onthe question so formulated and it shall not be open to theappellant to urge any other ground in the appeal without theleave of the Court, given in accordance with the provisionof section 100.

3. Application of rule 14 of Order XLI.—Reference insub-rule (4) of rule 14 of Order XLI to the Court of firstinstance shall, in the case of an appeal from an appellatedecree or order, be construed as a reference to the Courtto which the appeal was preferred from the original decreeor order.”

11. It is clear from the aforesaid provisions, particularly, sub-section(5) of Section 100 of the CPC, that an appeal shall be heard only on thequestions formulated by the High Court under sub-section (4) thereof.The expression ‘appeal’ has not been defined in the CPC. Black’s LawDictionary (7[th] Edn.) defines an appeal as “a proceeding undertaken tohave a decision reconsidered by bringing it to a higher authority.” Anappeal is judicial examination by a higher court of a decision of asubordinate court to rectify any possible error(s) in the order under appeal.The law provides the remedy of an appeal because of the recognitionthat those manning the judicial tiers too commit errors. In ShankarRamchandra Abhyankar v. Krishnaji Dattatreya Bapat[1], it was heldthus:

“5.……In the well known work of Story on Constitution (ofUnited States), Vol. 2, Article 1761, it is stated that the essentialcriterion of appellate jurisdiction is that it revises and corrects theproceedings in a cause already instituted and does not create thatcause. The appellate jurisdiction may be exercised in a variety offorms and, indeed, in any form in which the Legislature may chooseto prescribe. According to Article 1762 the most usual modes ofexercising appellate jurisdiction, at least those which are mostknown in the United States, are by a writ of error, or by an appeal,or by some process of removal of a suit from an inferior tribunal.An appeal is a process of civil law origin and removes a cause, AB

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Aentirely subjecting the fact as well as the law, to a review and aretrial…….”

12. Order XLII of the CPC provides for the procedure to befollowed while deciding appeals from the appellate decrees. It statesthat the Rules of Order XLI shall apply, so far as may be, to the appealsBfrom appellate decrees. Words such as “so far as may be” or “insofaras” mean ‘as much’ or ‘to the extent’ or ‘to such extent’. By virtue ofOrder XLII Rule 1, the provisions of Order XLI are applicable to secondappeal as well, though not in their entirety, but to certain extent. Havingregard to the mandate contained in Order XLII, the High Court, whilehearing a second appeal, has to follow the procedure contained in OrderCXLI to the extent possible.

13. Section 100 of the CPC provides for a right of second appealby approaching a High Court and invoking its aid and interposition toredress error(s) of the subordinate court, subject to the limitations providedtherein. An appeal under Section 100 of the CPC could be filed bothDagainst the ‘concurrent findings’ or ‘divergent findings’ of the courtsbelow.Sub-section (1) of Section 100 of the CPC states that a secondappeal would be entertained by the High Court only when the HighCourt is satisfied that the case ‘involves a substantial question of law’.Therefore, for entertaining an appeal under Section 100 of the CPC, it isEimmaterial as to whether it is against ‘concurrent findings’ or ‘divergentfindings’ of the courts below. It is needless to state that even when anyconcurrent finding of fact is appealed, the appellant is entitled to pointout that it is bad in law because it was recorded de hors the pleadings,or it was based on no evidence or it was based on misreading of materialdocumentary evidence or it was recorded against the provision of law orFthe decision is one which no Judge acting judicially could reasonablyhave reached. Once the High Court is satisfied, after hearing the appeal,that the appeal involves a substantial question of law, it has to formulatethat question and direct issuance of notice to the respondent.

14. In case the appeal does not involve any substantial question ofGlaw, the High Court has no other option but to dismiss the appeal.However, in order to come to a conclusion that the appeal does notinvolve any substantial of law, the High Court has to record the reasons.Giving reasons for the conclusion is necessary as it helps the adverselyaffected party to understand why his submissions were not accepted.HThe Court must display its conscious application of mind even while dismissing the appeal at the admission stage. In our view, the High Courtcannot dismiss the second appeal in limine without assigning any reasonsfor its conclusion.

15. In Surat Singh (Dead) v. Siri Bhagwan and Others[2], thisCourt has laid down that for dismissal of a second appeal without beingadmitted, the High Court is required to assign reasons. It was held thus:

“29. The scheme of Section 100 is that once the High Court issatisfied that the appeal involves a substantial question of law,such question shall have to be framed under sub-section (4) ofSection 100. It is the framing of the question which empowers theHigh Court to finally decide the appeal in accordance with theprocedure prescribed under sub-section (5). Both the requirementsprescribed in sub-sections (4) and (5) are, therefore, mandatoryand have to be followed in the manner prescribed therein. Indeed,as mentioned supra, the jurisdiction to decide the second appealfinally arises only after the substantial question of law is framedunder sub-section (4). There may be a case and indeed there arecases where even after framing a substantial question of law, thesame can be answered against the appellant. It is, however, doneonly after hearing the respondents under sub-section (5).

30. If, however, the High Court is satisfied after hearingthe appellant at the time of admission that the appeal doesnot involve any substantial question of law, then such appealis liable to be dismissed in limine without any notice to therespondents after recording a finding in the dismissal orderthat the appeal does not involve any substantial questionof law within the meaning of sub-section (4). It is needlessto say that for passing such order in limine, the High Courtis required to assign the reasons in support of itsconclusion.”

(emphasis supplied)

16. In the instant case, since the High Court has not assigned anyreasons for the dismissal of the appeal, the order needs to be set aside.Therefore, the appeal succeeds and is accordingly allowed. The orderof the High Court dated 31.07.2019 is set aside and the matter is remitted AB

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Aback to the High Court for fresh disposal in accordance with law and inthe light of the observations made above. There shall be no order as tocosts.

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Ankit Gyan

Appeal allowed.

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