HASMAT ALI versus AMINA BIBI & ORS.

Citation: [2021] 11 S.C.R. 42 · Decided: 29-11-2021 · Supreme Court of India · Bench: S. ABDUL NAZEER · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 11 S.C.R.
HASMAT ALI
v.
AMINA BIBI & ORS.
(Civil Appeal No. 7109 of 2021)
NOVEMBER 29, 2021
[S. ABDUL NAZEER AND KRISHNA MURARI, JJ.]
Code of Civil Procedure, 1908 – s.100 and Or.XLII, rr.1to 3 –
A 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 Trial
Court decreed the suit in part and the defendant was directed to
deliver vacant possession of the suit shop to the plaintiff – Appeal
filed by the defendant before the First Appellate Court was dismissed
– In the second appeal filed by the defendant before the High Court,
the said appeal was dismissed in limine without assigning any reason
for its conclusion – On appeal, held:  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 – Thus, the High Court cannot dismiss the second
appeal in limine without assigning any reasons for its conclusion –
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.
Allowing the appeal, the Court
HELD: 1. It is clear from 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. 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 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
[2021] 11 S.C.R. 42
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of an appeal because of the recognition that those manning the
judicial tiers too commit errors. [Para 11][47-C-E]
2. 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 High Court, while hearing a second
appeal, has to follow the procedure contained in Order XLI to
the extent possible. [Para 12][48-A-C]
3. 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-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 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. [Para 13][48-C-G]
4. In case the appeal does not involve any substantial
question of law, the High Court has no other option but to dismiss
HASMAT ALI v. AMINA BIBI & ORS.
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SUPREME COURT REPORTS
[2021] 11 S.C.R.
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