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Through the judgment of the case - Hasmat Ali v. Amina Bibi & Others, delivered on November 29, 2021, Justices S. Abdul Nazeer and Krishna Murari, at the Supreme Court have made it amply clear that "In our view, the High Court cannot dismiss the second appeal in limine without assigning any reason for its conclusion".

The Court has further said that The HC must display its conscious application of mind even while dismissing the appeal at the admission stage.

The SC has pointed out that Having regard to the rival contentions urged, the only question for consideration in the case is the whether the HC was justified in dismissing the Second Appeal, filed under section 100 of the Code of Civil Procedure, in limine.

Rules 1 to 3 of Order XLII of the CPC provide for procedure for deciding a Second Appeal. The HC has power to direct the appeal be heard on the question formulated by it.

It is clear from these provisions, particularly, sub-section (5) of section 100of the CPC, that an appeal shall be heard only on the questions formulated by the HC under sub-section (4) thereof. The expression ‘appeal’ has not been defined in the CPC. Black’s 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 a judicial examination by a higher court of a decision by 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 the Judgment of the case – Shankar Ramchandra Abhyankar v. Krishna Dattatreya Bapat (1969), it was held that "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 a fact as well as the law, to a review and a retrial....."

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 the 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 of the CPC, the HC, while hearing a second appeal, has to follow the procedure contained in Order XLI to the extent possible.

Section100 of the CPC provides for a right of second appeal by approaching a HC and invoking its aid and inter position to redress error(s) of the subordinate court, subject to the limitations provided therein. An appeal under section 100 can be filed both against the ‘concurrent findings’ or ‘divergent findings’ of the courts below. Sub-section (1) of section 100of the CPC states that a second appeal would be entertained by the HC only when the HC 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 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 HC 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 HC 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 question of law, the HC 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 the judgment of the case – Surat Singh (Dead) v. Siri Bhagwan and Others-(2018) 4 SCC 562, the SC has laid down that "Indeed the jurisdiction to decide 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)".

In the same Judgment, the SC has also held: "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 such order in limine, the HC is required to assign reasons in support of its conclusion."

In conclusion, in the context of this case, the SC has pointed out that since the Allahabad HC has not assigned any reasons for the dismissal of the appeal, the impugned order needs to be set aside. Therefore the appellant succeeds and the appeal is allowed. The SC has set aside the HC’s order of July 31, 2019 passed in this case and remitted case back to the HC for fresh disposal, in accordance with law and in the light of the observations made in this judgment.

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