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SUPREME COURT OF INDIA
(From the High Court of Orissa at Cuttack)
S. ABDUL NAZEER, KRISHNA MURARI, JJ
Hasmat Ali – appellant
Versus
Amina Bibi & Ors. - Respondents
Civil Appeal No. 7109 of 2021 (arising out of S.L.P.(c) no.25119 of 2019)
Decided on : 29-11-2021
(A) Civil Procedure Code, 1908 – Section 100 read with Rules 1 to 3 of Order XLII – Second Appeal – Disposal of – Parameters – An appeal is judicial examination by a higher court of a decision of a subordinate court to rectify any possible error(s) in order under appeal – Law provides remedy of an appeal because of recognition that those manning judicial tiers too commit errors – Appeal under Section 100 of CPC could be filed both against ‘concurrent findings’ or ‘divergent findings’ of courts below – For entertaining an appeal under Section 100 of CPC, it is immaterial as to whether it is against ‘concurrent findings’ or ‘divergent findings’ of courts below – Even when any concurrent finding of fact is appealed, appellant is entitled to point out that it is bad in law because it was recorded de hors pleadings, or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against provision of law or decision is one which no Judge acting judicially could reasonably have reached – Once High Court is satisfied, after hearing the appeal, that appeal involves a substantial question of law, it has to formulate that question and direct issuance of notice to respondent. (Paras 11 and 13)
(B) Civil Procedure Code, 1908 – Section 100 read with Rules 1 to 3 of Order XLII – Second Appeal – Substantial question of law – In case appeal does not involve any substantial question of law, High Court has no other option but to dismiss appeal – However, in order to come to conclusion that appeal does not involve any substantial of law, High Court has to record reasons – Giving reasons for conclusion is necessary as it helps adversely affected party to understand why his submissions were not accepted – Court must display its conscious application of mind even while dismissing appeal at admission stage – High Court cannot dismiss second appeal in limine without assigning any reasons for its conclusion – For dismissal of a second appeal without being admitted, High Court is required to assign reasons – High Court has not assigned any reasons for dismissal of appeal – Order of High Court set aside and matter remitted back to High Court for fresh disposal in accordance with law. (Paras 14, 15 and 16)
Facts of the case:
Present appeal is preferred against the Order dated 31.07.2019 passed by High Court of Orissa at Cuttack in Regular Second Appeal No.403 of 2017 whereby High Court had dismissed the appeal in limine thereby confirming judgment dated 04.08.2017 passed by the Additional District Judge, Rourkela, in RFA No.15 of 2015. Only question for consideration is whether High Court was justified in dismissing second appeal, filed under Section 100 of the CPC, in limine.
Findings of Court:
In the instant case, since the High Court has not assigned any reasons for the dismissal of the appeal, the order needs to be set aside. Therefore, the appeal succeeds and is accordingly allowed.
Result : Appeal allowed.
JUDGMENT :
S. ABDUL NAZEER, J.
1. Leave granted.
2. This appeal is preferred against the Order dated 31.07.2019 passed by the High Court of Orissa at Cuttack in Regular Second Appeal No.403 of 2017 whereby the High Court had dismissed the appeal in limine thereby confirming the judgment dated 04.08.2017 passed by the Additional District Judge, Rourkela, in RFA No.15 of 2015.
3. Late Md. Mukim, who expired during the trial, was the plaintiff and Hasmat Ali was defendant in the Civil Suit No.15 of 2009 on the file of the Civil Judge, Senior Division, Rourkela. This suit was filed to seek a 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 certain other reliefs. The defendant entered appearance in the said suit and filed the written statement. After trial, the suit was decreed in part on 21.07.2015 and the defendant was directed to deliver vacant possession of the suit shop to the plaintiff.
4. The defendant challenged the said judgment by filing an appeal and the Appellate Court dismissed the appeal on 04.08.2017. It is unnecessary to record the other factual matrix of the case for the purpose of deciding the question involved in this appeal.
5. The defendant filed regular second appeal before the High Court and the High Court dismissed the said appeal in limine. The order of the High Court dismissing the appeal is as under:
| R.S.A. No. 403 of 2017 | |||
| SI. No. of Order | Date of Order | ORDER WITH SIGNATURE | Office note as to action (if any), taken on Order |
| 9 | 31.07.2019 | Heard Sri Mishra, learned senior counsel for the appellant. Considering the submission made herein and going through the question of law, this Court does not find any question of law for admitting the Second Appeal for which the Second Appeal stands dismissed. Sd/ | |
6. The order of the High Court is challenged by the defendant mainly on the ground that it is not supported by any reasons. Learned counsel for the appellant submits that the findings of the Trial Court and also by the First Appellate Court are bad in law. He submits that the appeal involves substantial questions of law and that the High Court ought to have entertained the appeal for considering these questions of law. It was argued that, at any rate, the High Court was not justified in dismissing the appeal in limine.
7. On the other hand, learned counsel appearing for the respondent has supported the order of the High Court.
8. Having regard to the contentions urged, the only question for consideration is whether the High Court was justified in dismissing the second appeal, filed under Section 100 of the CPC, in limine.
9. Section 100 of the CPC reads as under:
(2) An appeal may lie under this section from an appellate decree passed ex-parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves
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