Hasmat Ali vs. Amina Bibi and Ors. - (Supreme Court) (29 Nov 2021)

High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion

MANU/SC/1160/2021

Civil

Present appeal is preferred against the order passed by the High Court in Regular Second Appeal whereby the High Court had dismissed the appeal in limine thereby confirming the judgment passed by the Additional District Judge.

The order of the High Court is challenged by the Defendant mainly on the ground that, it is not supported by any reasons. The Appellant 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. The High Court was not justified in dismissing the appeal in limine.

Order XLII of the Code of Civil Procedure, 1908 (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. 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.

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.

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. 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. The order of the High Court is set aside and the matter is remitted back to the High Court for fresh disposal in accordance with law. Appeal allowed.

Tags : APPEAL DISMISSAL LEGALITY