The Court must display its conscious application of mind even while dismissing the appeal at the admission stage.: Supreme Court

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 71021 Arising out of S.L.P.(C)No.251119 AMINA BIBI & ORS JUDGMENT S. ABDUL NAZEER J 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.4017 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.115 Late Md. Mukim who expired during the trial was the plaintiff and Hasmat Ali was defendant in the Civil Suit No.109 on the file of the Civil Judge Senior Division Rourkela. This suit was filed to seek a declaration Digitally signed byAnita MalhotraDate: 2021.11.2914:44:56 ISTReason:Signature Not Verified 2 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 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 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. 4017 SI. No. of Date of ORDER WITH Office note as to actiontaken Heard Sri Mishra learned senior counsel for the 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 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 On the other hand learned counsel appearing for the respondent has supported the order of the High Court 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. Section 100 of the CPC reads as under “100. Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court if the High Court is satisfied that the case involve a substantial question of law 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 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 such question.” 10. Rules 1 to 3 of Order XLII of the CPC provide for procedure for deciding a second appeal in the following terms APPEALS FROM APPELLATE DECREES 1. Procedure.—The rules of Order XLI shall apply so far as may be to appeals from appellate decrees 2. Power of Court to direct that the appeal be heard on the question formulated by it.—At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal the Court shall formulate the substantial question of law as required by section 100 and in doing so the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court given in accordance with the provision of section 100 3. Application of rule 14 of Order XLI.—Reference in sub rule 4) of rule 14 of Order XLI to the Court of first instance shall in the case of an appeal from an appellate decree or order be construed as a reference to the Court to which the appeal was preferred from the original decree or order.” It is clear from the aforesaid provisions particularly sub sectionof Section 100 of the CPC that an appeal shall be heard only on the questions formulated by the High Court under sub sectionthereof. The expression ‘appeal’ has not been defined in the CPC. Black’s Law DictionaryVol. 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 1 1969SCC74 High Court while hearing a second appeal has to follow the procedure contained in Order XLI to the extent possible 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 sectionof 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. 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 Singhv. Siri Bhagwan and Others2 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 sectionof 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 and 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 SCC 562 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.” 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. The order of the High Court dated 31.07.2019 is set aside and the matter is remitted back to the High Court for fresh disposal in accordance with law and in the light of the observations made above. There shall be no order as to costs (S. ABDUL NAZEER (KRISHNA MURARI New Delhi November 29 2021

Summary: 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. In case the appeal does not involve any substantial question of law, the High Court has no other option but to dismiss the appeal as upheld by the Hon’ble Supreme Court through the learned bench led by Justice S. Abdul Nazeer in the case of Hasmat Ali v. Amina Bibi &amp; Ors. (CIVIL APPEAL NO. 7109 of 2021)(Arising out of S.L.P.(C)No.25119 of 2019) The brief facts of the case are that 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. The defendant challenged the said judgment by filing an appeal and the Appellate Court dismissed the appeal on 04.08.2017. The defendant filed regular second appeal before the High Court and the High Court dismissed the said appeal in limine. 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. The Hon’ble Supreme Court held “In our view, the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion. 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. The order of the High Court dated 31.07.2019 is set aside and the matter is remitted back to the High Court for fresh disposal in accordance with law and in the light of the observations made above. There shall be no order as to costs.”