Case Note & Summary
The appellant, Sri Vithal Laxman Kambale, filed a suit for a permanent injunction against the respondents (Deputy Commissioner, Tahasildar & Taluka Executive Magistrate, and Revenue Inspector). The trial court dismissed the suit. The appellant filed a first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) before the II Additional Senior Civil Judge & CJM, Belgaum. The first appellate court dismissed the appeal for default (non-prosecution) on 17.09.2014. The appellant then filed a regular second appeal under Section 100 CPC before the High Court of Karnataka, Dharwad Bench. The High Court examined the maintainability of the second appeal. The court noted that the first appeal was dismissed for default, not on merits, and therefore no decree was passed. The court held that a second appeal under Section 100 CPC lies only against a decree passed by the first appellate court, and not against an order of dismissal for default. The substantial questions of law raised by the appellant were not maintainable as they pertained to the justification of the dismissal for default, which could be challenged by filing an application for restoration before the same court, not by a second appeal. Consequently, the High Court dismissed the second appeal as not maintainable.
Headnote
A) Civil Procedure - Second Appeal - Maintainability - Section 100 CPC - Dismissal of First Appeal for Default - The court held that a second appeal under Section 100 CPC is not maintainable against an order dismissing a first appeal for default, as such dismissal does not result in a decree and no substantial question of law arises for consideration. The appeal was dismissed as not maintainable. (Paras 1-6)
Issue of Consideration
Whether a second appeal under Section 100 of the Code of Civil Procedure, 1908 is maintainable against an order dismissing a first appeal for default (non-prosecution)
Final Decision
The High Court dismissed the second appeal as not maintainable, holding that no second appeal lies against an order dismissing a first appeal for default.
Law Points
- Second appeal under Section 100 CPC is not maintainable against dismissal of first appeal for default
- as no decree is passed and no substantial question of law arises
Case Details
2016 LawText (KAR) (07) 17
Regular Second Appeal No. 100573/2015 (INJ)
Sri Santhosh B. Rawoot and Anand L. Sandrimani
Sri Vithal Laxman Kambale
The Deputy Commissioner, Belagavi; The Tahasildar & Taluka Executive Magistrate, Belagavi; The Revenue Inspector, Uchagaon Circle
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Nature of Litigation
Civil suit for permanent injunction dismissed by trial court; first appeal dismissed for default; second appeal against dismissal of first appeal.
Remedy Sought
Appellant sought to challenge the dismissal of the first appeal for default and the trial court's dismissal of the suit.
Filing Reason
Appellant's first appeal was dismissed for non-prosecution by the first appellate court.
Previous Decisions
Trial court dismissed the suit; first appellate court dismissed the appeal for default on 17.09.2014.
Issues
Whether a second appeal under Section 100 CPC is maintainable against an order dismissing a first appeal for default.
Submissions/Arguments
Appellant argued that the second appeal under Section 100 CPC is maintainable even if the first appeal is dismissed for default, to examine the legality of the order in the first appeal.
Ratio Decidendi
A second appeal under Section 100 of the Code of Civil Procedure, 1908 is not maintainable against an order dismissing a first appeal for default, as such dismissal does not result in a decree and no substantial question of law arises for consideration.
Judgment Excerpts
The two substantial questions of law raised in this appeal memorandum being relevant, is extracted hereinbelow: (1) Whether the First Appellate Court was justified in dismissing the appeal for default? (2) Whether the trial court was justified in dismissing the appeal for default without appreciating the material facts of the case?
The lower Appellate Court having found the appellant and his learned advocate had absented on earlier hearing dates and also on 17.09.2014, dismissed the appeal for default.
Procedural History
Suit for permanent injunction dismissed by trial court. First appeal under Section 96 CPC filed by plaintiff before II Addl. Sr. Civil Judge & CJM, Belgaum, dismissed for default on 17.09.2014. Regular second appeal under Section 100 CPC filed before High Court of Karnataka, Dharwad Bench.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100, Section 96
