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

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.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.

Reasoning:
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.