Can High Court dismiss Second Appeal in limine? SC replies

 

 

In relief to the appeallant, the Supreme Court remitted back his case to the Orissa High Court wherein his second appeal was rejected in limine.

The Division Bench comprising of Justice Abdul Nazeer and Justice Krishna Murari observed that a High Court cannot dismiss a second appeal filed under Section 100 of the Code of Civil Procedure in limine without assigning reasons.

Brief Facts of the Case

The appeallant-defendant lost a Civil Suit and aggrieved of the judgement, filed an appeal before the Appellate Court which was dismissed. Later on he moved a Second Appeal before the Orissa High Court which got dismissed in limine.

The appeallant sought intervention of the Supreme Court and challneged the HC order mainly on the ground that it was not supported by any reasons.

Supreme Court Observations

The Court accepted the appeallant's contention and observed that High Court can dismiss the appeal under Section 100 of the CPC if the case doesn't involve any substantial question of law but has to record the reasons while doing so.

"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."

 Stating 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 as the law provides the remedy of an appeal because of the recognition that those manning the judicial tiers too commit errors, the Court noted:

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"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."

 The Court stated that an appeal under Section 100 of the CPC could be could be filed both against the ‘concurrent findings’ or ‘divergent findings’ of the courts below.

It also pointed that in case of concurrent finding, 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 added.

The Court also referred to the judgement in Surat Singh (Dead) v. Siri Bhagwan and Others,2018 Latest Caselaw 127 SC in which the Supreme Court laid down that for dismissal of a second appeal without being admitted, the High Court is required to assign reasons.

Read Judgement Here:

 

 

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