Holding

A second appeal under Section 100 CPC cannot be dismissed in limine without recording reasons; the High Court must state why it finds no substantial question of law.

Summary

Hasmat Ali filed a suit seeking a declaration that Amina Bibi was his tenant until 31‑03‑2003 and an order for eviction. The trial court decreed in part and directed the defendant to vacate the premises. The defendant's first appeal was dismissed, and a second appeal under Section 100 of the CPC was dismissed by the Orissa High Court in limine without recording any reasons. The Supreme Court examined whether a High Court can dismiss a second appeal without stating reasons when it finds no substantial question of law. It held that the High Court must record reasons for such a dismissal and, if a substantial question exists, must formulate it under Section 100(4). Consequently, the High Court’s order was set aside and the appeal was allowed, with the matter remitted to the High Court for fresh disposal.

Issues considered

Whether a High Court can dismiss a second appeal under Section 100 of the CPC in limine without recording reasons.
Whether the High Court must formulate a substantial question of law before dismissing a second appeal.
The applicability of Order XLII and Order XLI procedural rules to second appeals.

Legislation cited

Code of Civil Procedure, 1908s. 100

Subjects

Second appealSection 100 CPCsubstantial question of lawdismissal in liminereasoned orderOrder XLIIcivil procedure

Judgment

42 [2021]REPORTS
SUPREME COURT 11 S.C.R. 42 [2021] 11 S.C.R.

A HASMAT ALI
v.
AMINA BIBI & ORS.
(Civil Appeal No. 7109 of 2021)
B 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
C
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,
D 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
E
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.
F
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
G Law Dictionary (7 th 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
H
42
HASMAT ALI v. AMINA BIBI & ORS. 43

of an appeal because of the recognition that those manning the A
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 B
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 C
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 D
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’. E
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 F
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, G
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
H
44 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 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
B
at the admission stage. In view of this Court, the High Court
cannot dismiss the second appeal in limine without assigning any
reasons for its conclusion. [Para 14][48-G-H; 49-A]
Shankar Ramchandra Abhyankar v. Krishnaji
Dattatreya Bapat (1969) 2 SCC 74 : [1970] 1 SCR 322;
C Surat Singh (Dead) v. Siri Bhagwan and Others (2018)
4 SCC 562 : [2018] 1 SCR 1063 – relied on.
Case Law Reference
[1970] 1 SCR 322 relied on Para 11
D [2018] 1 SCR 1063 relied on Para 15
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7109
of 2021.
From the Judgment and Order dated 31.07.2019 of the High Court
of Orissa, Cuttack in R.S.A. No. 403 of 2017.
E
Jagjit Singh Chhabra, Saksham Maheshwari, Advs. for the
Appellant.
Rutwik Panda, Ms. Nikhar Berry, Ms. Anshu Malik, Advs. for
the Respondents.
F The Judgment of the Court was delivered by
S. ABDUL NAZEER, J.
1. Leave granted.
2. This appeal is preferred against the Order dated 31.07.2019
G passed by the High Court of Orissa at Cuttack in Regular Second Appeal
No. 403 of 2017 whereby the High Court had dismissed the appeal in
limine thereby confirming the judgment dated 04.08.2017 passed by the
Additional District Judge, Rourkela, in RFA No. 15 of 2015.

H
HASMAT ALI v. AMINA BIBI & ORS. 45
[S. ABDUL NAZEER, J.]

3. Late Md. Mukim, who expired during the trial, was the plaintiff A
and Hasmat Ali was defendant in the Civil Suit No. 15 of 2009 on the file
of the Civil Judge, Senior Division, Rourkela. This 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 defendant entered appearance in the said suit and
B
filed the written statement. After trial, the suit was decreed in part on
21.07.2015 and the defendant was directed to deliver vacant possession
of the suit shop to the plaintiff.
4. The defendant challenged the said judgment by filing an appeal
and the Appellate Court dismissed the appeal on 04.08.2017. It is
unnecessary to record the other factual matrix of the case for the purpose C
of deciding the question involved in this appeal.
5. The defendant filed regular second appeal before the High
Court and the High Court dismissed the said appeal in limine. The order
of the High Court dismissing the appeal is as under:
D
R.S.A. No. 403 of 2017
SI. No. of Date of ORDER WITH SIGNATURE Office note as to
Order Order action (if any), taken
on Order
9 31.07.2019 Heard Sri Mishra, learned senior counsel for the
appellant.
Considering the submission made herein and going E
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.
Sd/-

6. The order of the High Court is challenged by the defendant
mainly on the ground that it is not supported by any reasons. Learned F
counsel for the appellant submits that the findings of the Trial Court and
also by the First Appellate Court are bad in law. He 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. It was argued that, at any rate, the High Court was not justified in G
dismissing the appeal in limine.
7. On the other hand, learned counsel appearing for the respondent
has supported the order of the High Court.

H
46 SUPREME COURT REPORTS [2021] 11 S.C.R.

A 8. Having regard to the contentions urged, the only question for
consideration is whether the High Court was justified in dismissing the
second appeal, filed under Section 100 of the CPC, in limine.
9. Section 100 of the CPC reads as under:
“100. Second appeal.—(1) Save as otherwise expressly
B provided in the body of this Code or by any other law for the
time being in force, an appeal shall lie to the High Court from
every decree passed in appeal by any Court subordinate to the
High Court, if the High Court is satisfied that the case involve
a substantial question of law.
C (2) An appeal may lie under this section from an appellate
decree passed ex-parte.
(3) In an appeal under this section, the memorandum of appeal
shall precisely state the substantial question of law involved in
the appeal.
D
(4) Where the High Court is satisfied that a substantial question
of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated
and the respondent shall, at the hearing of the appeal, be allowed
to argue that the case does not involve such question:
E
Provided that nothing in this sub-section shall be deemed to
take away or abridge the power of the Court to hear, for reasons
to be recorded, the appeal on any other substantial question of
law, not formulated by it, if it is satisfied that the case involves
such question.”
F
10. Rules 1 to 3 of Order XLII of the CPC provide for procedure
for deciding a second appeal in the following terms:
“Order XLII
APPEALS FROM APPELLATE DECREES
G
1. Procedure.—The rules of Order XLI shall apply, so far as
may be, to appeals from appellate decrees.
2. Power of Court to direct that the appeal be heard on
the question formulated by it.—At the time of making
an order under rule 11 of Order XLI for the hearing of a
H
HASMAT ALI v. AMINA BIBI & ORS. 47
[S. ABDUL NAZEER, J.]

second appeal, the Court shall formulate the substantial A
question of law as required by section 100, and in doing so,
the Court may direct that the second appeal be heard on
the question so formulated and it shall not be open to the
appellant to urge any other ground in the appeal without the
leave of the Court, given in accordance with the provision
B
of section 100.
3. Application of rule 14 of Order XLI.—Reference in
sub-rule (4) of rule 14 of Order XLI to the Court of first
instance shall, in the case of an appeal from an appellate
decree or order, be construed as a reference to the Court
to which the appeal was preferred from the original decree C
or order.”
11. It is clear from the aforesaid provisions, particularly, 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 D
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 of an appeal because of the recognition E
that those manning the judicial tiers too commit errors. In Shankar
Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat1, it was held
thus:
“5.……In the well known work of Story on Constitution (of
United States), Vol. 2, Article 1761, it is stated that the essential F
criterion of appellate jurisdiction is that it revises and corrects the
proceedings in a cause already instituted and does not create that
cause. The appellate jurisdiction may be exercised in a variety of
forms and, indeed, in any form in which the Legislature may choose
to prescribe. According to Article 1762 the most usual modes of
exercising appellate jurisdiction, at least those which are most G
known in the United States, are by a writ of error, or by an appeal,
or by some process of removal of a suit from an inferior tribunal.
An appeal is a process of civil law origin and removes a cause,

1
1969 (2) SCC74 H
48 SUPREME COURT REPORTS [2021] 11 S.C.R.

A entirely subjecting the fact as well as the law, to a review and a
retrial…….”
12. 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
B 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
C XLI to the extent possible.
13. 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
D 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
E 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
F 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.
14. In case the appeal does not involve any substantial question of
G 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.
H The Court must display its conscious application of mind even while
HASMAT ALI v. AMINA BIBI & ORS. 49
[S. ABDUL NAZEER, J.]

dismissing the appeal at the admission stage. In our view, the High Court A
cannot dismiss the second appeal in limine without assigning any reasons
for its conclusion.
15. In Surat Singh (Dead) v. Siri Bhagwan and Others2, this
Court has laid down that for dismissal of a second appeal without being
admitted, the High Court is required to assign reasons. It was held thus: B
“29. The scheme of Section 100 is that once the High Court is
satisfied that the appeal involves a substantial question of law,
such question shall have to be framed under sub-section (4) of
Section 100. It is the framing of the question which empowers the
High Court to finally decide the appeal in accordance with the C
procedure prescribed under sub-section (5). Both the requirements
prescribed in sub-sections (4) and (5) are, therefore, mandatory
and have to be followed in the manner prescribed therein. Indeed,
as mentioned supra, the jurisdiction to decide the second appeal
finally arises only after the substantial question of law is framed
under sub-section (4). There may be a case and indeed there are D
cases where even after framing a substantial question of law, the
same can be answered against the appellant. It is, however, done
only after hearing the respondents under sub-section (5).
30. If, however, the High Court is satisfied after hearing
the appellant at the time of admission that the appeal does E
not involve any substantial question of law, then such appeal
is liable to be dismissed in limine without any notice to the
respondents after recording a finding in the dismissal order
that the appeal does not involve any substantial question
of law within the meaning of sub-section (4). It is needless F
to say that for passing such order in limine, the High Court
is required to assign the reasons in support of its
conclusion.”
(emphasis supplied)
16. In the instant case, since the High Court has not assigned any G
reasons for the dismissal of the appeal, the order needs to be set aside.
Therefore, the appeal succeeds and is accordingly allowed. The order
of the High Court dated 31.07.2019 is set aside and the matter is remitted

2
(2018) 4 SCC 562 H
50 SUPREME COURT REPORTS [2021] 11 S.C.R.

A back to the High Court for fresh disposal in accordance with law and in
the light of the observations made above. There shall be no order as to
costs.

Ankit Gyan Appeal allowed.
B

C

D

E

F

G

H