Case: HASMAT ALI Vs. AMINA BIBI &amp; ORS

the High Court under sub-section (4) thereof. The expression appeal has not been defined in the CPC. Blacks Law Dictionary (7th Edn.) defines an appeal as a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority. An appeal is judicial examination by a higher court of a decision of a subordinate court to rectify any possible error(s) in the order under appeal. The law provides the remedy of an appeal because of the recognition that those manning the judicial tiers too commit errors. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat 1969 (2) SCC74 , it was held thus: 5.……In the well known work of Story on Constitution (of United States), Vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the Legislature may choose to prescribe. According to Article 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known 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, entirely subjecting the fact as well as the law, to a review and a retrial……. 12. Order XLII of the CPC provides for the procedure to be followed while deciding appeals from the appellate decrees. It states that the Rules of Order XLI shall apply, so far as may be, to the appeals from appellate decrees. Words such as so far as may be or insofar as mean as much or to the extent or to such extent. By virtue of Order XLII Rule 1, the provisions of Order XLI are applicable to second appeal as well, though not in their entirety, but to certain extent. Having regard to the mandate contained in Order XLII, the High Court, while hearing a second appeal, has to follow the procedure contained in Order XLI to the extent possible. 13. Section 100 of the CPC provides for a right of second appeal by approaching a High Court and invoking its aid and interposition to redress error(s) of the subordinate court, subject to the limitations provided therein. An appeal under Section 100 of the CPC could be filed both against the concurrent findings or divergent findings of the courts below. Sub-section (1) of Section 100 of the CPC states that a second appeal would be entertained by the High Court only when the High Court is satisfied that the case involves a substantial question of law. Therefore, for entertaining an appeal under Section 100 of the CPC, it is immaterial as to whether it is against concurrent findings or divergent findings of the courts below. It is needless to state that even when any concurrent finding of fact is appealed, the appellant is entitled to point out 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 material documentary evidence or it was recorded against the provision of law or the decision is one which no Judge acting judicially could reasonably have reached. Once the High Court is satisfied, after hearing the appeal, that the appeal involves a substantial question of law, it has to formulate that question and direct issuance of notice to the respondent. 14. In case the appeal does not involve any substantial question of law, the High Court has no other option but to dismiss the appeal. However, in order to come to a conclusion that the appeal does not involve any substantial of law, the High Court has to record the reasons. Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted. The Court must display its conscious application of mind even while dismissing the appeal at the admission stage. In our view, the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion. 15. In Surat Singh (Dead) v. Siri Bhagwan and Others (2018) 4 SCC 562 , this Court has laid down that for dismissal of a second appeal without being admitted, the High Court is required to assign reasons. It was held thus: 29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5). 30. If, however, the High Court is satisfied after hearing the appellant at the time of admission that the appeal does not involve any substantial question of law, then such appeal is liable to be dismissed in limine without any notice to the respondents after recording a finding in the dismissal order that the appeal does not involve any substantial question of law within the meaning of sub-section (4). It is needless to say that for passing such order in limine, the High Court is required to assign the reasons in support of its conclusion. (emphasis supplied)

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 the questions formulated by the High Court under sub-section (4) thereof. The expression appeal has not been defined in the CPC. Blacks Law Dictionary (7th Edn.) defines an appeal as a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority. An appeal is judicial examination by a higher court of a decision of a subordinate court to rectify any possible error(s) in the order under appeal. The law provides the remedy of an appeal because of the recognition that those manning the judicial tiers too commit errors. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat 1969 (2) SCC74 , it was held thus:5.……In the well known work of Story on Constitution (of United States), Vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the Legislature may choose to prescribe. According to Article 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known 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, entirely subjecting the fact as well as the law, to a review and a retrial…….14. In case the appeal does not involve any substantial question of law, the High Court has no other option but to dismiss the appeal. However, in order to come to a conclusion that the appeal does not involve any substantial of law, the High Court has to record the reasons. Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted. The Court must display its conscious application of mind even while dismissing the appeal at the admission stage. In our view, the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion.15. In Surat Singh (Dead) v. Siri Bhagwan and Others (2018) 4 SCC 562 ,  this Court has laid down that for dismissal of a second appeal without being admitted, the High Court is required to assign reasons. It was held thus:29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5).30. If, however, the High Court is satisfied after hearing the appellant at the time of admission that the appeal does not involve any substantial question of law, then such appeal is liable to be dismissed in limine without any notice to the respondents after recording a finding in the dismissal order that the appeal does not involve any substantial question of law within the meaning of sub-section (4). It is needless to say that for passing such order in limine, the High Court is required to assign the reasons in support of its conclusion.