Hierarchy of Court system allows provision of appeal, revision, review to the aggrieved party depending upon the case for doing complete justice. The rule of law has been so carved to ensure plug in any chances of error while doing justice. This can be seen as an eg. in of recent judgment of Hasmat Ali vs. Amina Bibi [Civil Appeal No. 7109 of 2019] regarding second appeal.
Indian law dealing with second appeal is mentioned in Section 100 of the CPC that reads as under regarding second appeal:
“100. Second appeal.—(1) Save as otherwise expressly 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.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(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:
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.”
Rules 1 to 3 of Order XLII of the CPC provide for procedure for deciding a second appeal in the following terms:
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.
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. 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.
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 of an appeal because of the recognition that those manning the judicial tiers too commit errors. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat (1969 (2) SCC 74), 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 criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause.An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial…….”
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.
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 the view of the apex court, the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion. In Surat Singh (Dead) v. Siri Bhagwan and Others (2018) 4 SCC 562), this Court has laid down that for dismissal of a second appeal without being admitted, the High Court is required to assign reasons.
