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Noting that 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 Supreme Court today held that the law provides the remedy of an appeal because of the recognition that those manning the judicial tiers too commit errors.

A bench of Justices S Abdul Nazeer and Krishna Murari observed so while hearing an appeal preferred against the Order dated passed by the High Court of Orissa at Cuttack whereby the High Court had dismissed the second appeal in limine thereby confirming the judgment passed by the Additional District Judge, Rourkela.

A suit was filed to seek a declaration that the defendant-appellant Hasmat Ali was a tenant of the plaintiff, one late Md. Hakim till March 31, 2003, eviction of the defendant from the suit scheduled property and for certain other reliefs.

After trial, the suit was decreed in part in 2015 and Hasmat Ali was directed to deliver vacant possession of the suit shop.

This was challenged by filing an appeal which was dismissed by the Appellate Court in August 2017. A regular second appeal under Section 100 of the CPC was filed before the High Court which was dismissed in limine.

The order of the High Court was challenged mainly on the ground that it was not supported by any reasons.

A perusal of sub-section (5) of Section 100 of the CPC showed that an appeal shall be heard only on the questions formulated by the High Court under sub-section (4) thereof.

The bench further perused Order XLII of the CPC which provides for the procedure to be followed while deciding appeals from the appellate decrees. It was noted that Order XLII 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", noted the Court.

The Court further remarked that Section 100 of the CPC provided 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 added.

When any concurrent finding of fact is appealed, said the court, 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.

It went on to say that 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.

The top court further noted that in order to come to a conclusion that the appeal does not involve any substantial of law, the High Court has to record reasons as it helped 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."

In the instant case, since no reasons were assigned for the dismissal of the appeal, the bench set aside the order of the High Court and remitted the matter back for fresh disposal in accordance with law and in the light of the observations made by it.

Cause Title: Hasmat Ali vs Amina Bibi & Ors.