Holding that a High Court cannot dismiss a second appeal filed under Section 100 of the Code of Civil Procedure in limine without assigning reasons, the Supreme Court remitted a matter back to the High Court for fresh consideration.
In the instant case, the High Court had dismissed the second appeal with a one sentence order stating : “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”.
Taking exception to this order, the Supreme Court observed that if the case does not involve any substantial question of law, the High Court has no 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.
The Court noted 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. 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.
The Court further added :
“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”.
The Court also referred to the precedent Surat Singh (Dead) v. Siri Bhagwan and Others (2018) 4 SCC 562 which held that for dismissal of a second appeal without being admitted, the High Court is required to assign reasons.
Case Title : Hasmat Ali vs Amina Bibi and others
Citation : LL 2021 SC 689
