Supreme Court of India
JAMES JOSEPHversusSTATE OF KERALA
- Citation
- 2010 INSC 564
- Decided
- 31 August 2010
- Disposal
- Dismissed
- Bench
- R V RAVEENDRAN
Holding
Section 12A of the Kerala Forest Act confers a right of appeal against an appellate order that is not restricted to substantial questions of law and permits rehearing on both fact and law, so the High Court need not frame any substantial question of law.
Summary
The State of Kerala issued a notification to declare certain lands as revenue forest, which the appellant's predecessor claimed title to. The Forest Settlement Officer rejected the claim, but the Additional District Judge allowed it on appeal under Section 11 of the Kerala Forest Act. The State appealed to the High Court under Section 12A, which reversed the District Court's order. The Supreme Court remanded the matter, and the High Court again held that Section 12A does not constitute a "second appeal" and is not limited to substantial questions of law. The appellant challenged this view, arguing that an appeal under Section 12A should be treated as a second appeal governed by Section 100 of the Code of Civil Procedure, requiring a substantial question of law to be stated. The Supreme Court examined the language of Section 12A and compared it with Section 100 CPC, concluding that Section 12A provides a self‑contained right of appeal against an appellate order without the limitation of substantial questions of law, allowing rehearing on both fact and law. Consequently, the High Court was not required to frame any substantial question of law, and the appeal was dismissed.
Issues considered
- Whether an appeal under Section 12A of the Kerala Forest Act, 1961 against an appellate order under Section 11 is limited to substantial questions of law, i.e., whether it is a 'second appeal' governed by Section 100 of the Code of Civil Procedure.
- Whether the memorandum of appeal under Section 12A must state the substantial question of law and whether the High Court is bound to formulate such a question before hearing the appeal.
Legislation cited
- Code of Civil Procedure, 1908s. 100
- Income Tax Act, 1961s. 260A
- Kerala Forest Act, 1961s. 11, s. 12A, s. 4, s. 5, s. 6, s. 8, s. 83, s. 9
- Kerala Forest (Appeal to the High Court) Rules, 1981s. Rule 2
- Securities and Exchange Board of India Act, 1992s. 15Z
- Telecom Regulatory Authority of India Act, 1997s. 18(1)
Subjects
appealsecond appealsubstantial question of lawKerala Forest ActSection 12ASection 100 CPCappellate jurisdictionfact and lawHigh Courtforest land
Judgment
[2010] 10 S.C.R. 844
A JAMES JOSEPH
v.
STATE OF KERALA
(Civil Appeal No. 7207 of 201 O)
AUGUST 31, 2010
B
[R.V. RAVEENDRAN AND H.L. GOKHALE, JJ.]
Kerela Forest Act, 1961:
c ss. 12A and 11 - Appeal uls. 12A, against appellate order
u/s. 11 - Scope of - Held: Appeal uls. 12A is available both
in respect of questions of fact and questions of law - It would
lie without specifying any limitation or restriction - Sub-section
(2) of s. 12A/r. 2(1) and form of appeal under Kera/a Forest
0 (Appeal to the High Court) Rules does not require the
memorandum of appeal to state substantial questions of law
involved - On facts, th.ere was no need for High Court to frame
any substantial question of law while admitting appeal or
before posting the appeal for hearing - Order of High Court.
E that s. 12A does not provide for 'second appeal' but only for
an appeal against appellate order and was not limited to
substantial questions of law, justified - Appeal - Kera/a Forest
(Appeal to the High Court) Rules 1981 - Code of Civil
Procedure, 1908 - s. 100.
F s. 12A and s. 100 CPC - Difference between - Stated -
Code of Civil Procedure, 1908 - s. 100.
Appeal - Appeals from appellate orders - General
principles - Stated.
G The State Government issued a notification under
Section 4 of the Travancore Forest Regulation II of 1068
ME proposing to declare certain lands as revenue forest.
The appellant's predecessor claimed title to certain lands
since the said land formed part of the proposed reserve
H 844
JAMES JOSEPH v. STATE OF KERALA 845
forest. The Forest Settlement Officer rejected the claim. A
However, the Additional District Judge allowed the
appeal. Aggrieved, the respondent-State Government
filed an appeal under Section 12A of the Kerala Forest
Act, 1961. The High Court allowed the second appeal.
Thereafter, on appeal by the appellant, the Supreme Court B
remanded the matter to the High Court for consideration
afresh. The High Court held that Section 12A of the Act
does not provide for a 'second appeal' but only provides
for an appeal against an appellate order and was not
limited to substantial questions of law. Therefore, the C
appellant filed the instant appeal.
Dismissing the appeal, the Court
HELD: 1.1 Section 100 of the Code of Civil
Procedure, 1908 limits the jurisdiction in an appeal. It D
specifically provides that the second appeal will be
available only where there exists substantial question of
law. Some enactments do not specify that the second
appeal will be restricted to substantial questions of law,
but incorporate Section 100 of the Code by reference, in E
regard to appeals from appellate orders. [Para 14] (857-
C-D]
1.2 The principles with reference to appeals are:
(i) An appeal is a proceeding where an higher forum F
reconsiders the decision of a lower forum, on
questions of fact and questions of law, with
jurisdiction to confirm, reverse, modify the decision
or remand the matter to the lower forum for fresh
decision in terms of its directions. G
(ii) The appellate jurisdiction can be limited or
regulated by the legislature and its extent has to be
decided with reference to the language employed by
the statute conferring the appellate jurisdiction.
H
846 SUPREME COURT REPORTS [2010] 10 S.C.R.
A (iii) The width of jurisdiction or the limitations on
jurisdiction with reference to an appeal, does not
depend on whether the appeal is a first appeal or a
second appeal, but depends upon the limitations, if
any, placed by the statute conferring the right of
B appeal.
(iv) If the Legislature's intention is to limit the
jurisdiction in an appeal, it may indicate such limits
in the provision providing for appeal. Alternatively, it
may expressly or impliedly incorporate the provisions
c of section 100 of the Code, into the provision for
appeals.
(v) Generally statutory provisions for appeals against
original orders or decrees (that is, first appeals) will
D not have any limitations and, therefore, rehearing on
both law and fact is contemplated; and statutory
provisions for appeals against appellate orders (that
is, second appeals) will be restricted to questions of
law. But such restriction is not on account of any
E legal principle that all second appeals should always
be with reference to questions of law, but would
depend upon the wording of the statute placing the
restrictions upon the scope of second appeal.
(vi) Where the statute does not place any limitations
F or restrictions in regard to the scope and width of the
appeal, it shall be construed that the appeal provides
a right of rehearing on law as well as facts. If the
Legislature enacts a self-contained provision for
second appeals, without any limitation upon the
G scope of the second appeal and excludes the
possibility of reading the provision of Section 100 of
the Code, into such provision, then, it will not be
permissible to read the limitations of Section 100 of
the Code into the special provision. [Para 16] [860-
H F-H; 861-A-G]
JAMES JOSEPH v. STATE OF KERALA 847
1.3 The following differences in Section 12A of the A
Kera la Forest Act, 1961 and Section 100 of the Code
demonstrate that Section 12A of the Act is intended to be
self-contained in so far as appeals under the Act to the
High Court, deliberately deviating from the provisions of
Section 100 of the Code: B
(i) Sub-sections (1 ), (3) and (4) of Section 100 of the
Code provide specifically that the second appeal
would lie only where substantial questions of law are
involved. On the other hand, Section 12 A does not
use the words 'second appeal'; sub-section (1) of C
Section 12A provides for an appeal against the order
of the appellate authority under Section 11 of the Act,
without specifying any limitation or restriction. The
word appeal is not defined either under the Act or
under the Code. D
(ii) Section 100 of the Code begins with the words
"Save as otherwise expressly provided ... by any
other law". This means that a second appeal can be
to a court or Tribunal other than the High Court, or E
that second appeal need not be restricted to
substantial questions of law, if so provided by other
law. Section 12A of the Act is one such provision of
other law, expressly providing otherwise.
(iii) Where the Act wants to adopt the provisions of F
the Code, it expressly provided so. Sub-section (5)
of Section 12A and Section 83 expressly refer to and
make applicable the provisions of the Code in other
contexts. But when it comes to appeals to High
Court, Section 12A of the Act deliberately chalks a G
different path from Section 100 of the Code.
(iv) While sub-section (3) of Section 100 of the Code
requires the appellant to precisely state the
substantial question of law in the memorandum of H
848 SUPREME COURT REPORTS [2010] 10 S.C.R.
A appeal, sub-section (2) of Section 12A of the Act read
with Rule 2(1) and the form of appeal under the
Kerala Forest (Appeal to the High Court) Rules 1981,
does not require the appeal memorandum to state
any questions of law, substantial or otherwise. The
B provisions of sub-section (3) of Section 12A also
clearly reiterates by implication that the jurisdiction
of the High Court under Section 12A is not subject
to any limitations. (Para 9 and 18] (855-D-E; 864-E-H;
865-A-E]
c 1.4. The High Court was right in holding that the
appeal under Section 12A of the Act is available both in
respect of questions of fact and questions of law.
Therefore, there is no need for the High Court to frame
any substantial question of law. [Para 19] [865-F]
D
Chunilal Vithal Das vs. Mohan/al Moti/al Patel (1966)
Supp SCR 180; Chappan v. Moidin Kutti ILR (1899} 22
Madras 68; Tirupati Balaji Developers (P) Ltd. v. State of
Bihar 2004 (5) SCC 1; Hari Shankar v. Rao Girdhari Lal
E Chowdhury 1962 Supp. (1) SCR 933; Shankar Ramchandra
Abhyankar v. Krishnaji Dattatreya Bapat 1969 (2) SCC 74;
Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar AIR
1980 SC 1253 - referred to.
Black's Law Dictionary - 7th Edn. - referred to.
F
Case Law Reference:
ILR (1899) 22 Madras 68 Referred to. Para 10
2004 (5) sec 1 Referred to. Para 10
G 1962 Supp. (1) SCR 933 Referred to. Para 11
1969 (2) sec 74 Referred to. Para 12
AIR 1980 SC 1253 Referred to. Para 13
H (1966) Supp SCR 180 Referred to. Para 15
JAMES JOSEPH v. STATE OF KERALA 849
CIVL APPELLATE JURISDICTION : Civil Appeal No. A
7207 of 2010.
From the Judgment & Order dated 23.03.2007 of the High
Court of Kerala at Ernakulam in I.A. No. 955 of 2005 in MSA.
1 of 1981. B
R.S. Hegde, P.P. Singh for the Appellant.
Jaideep Gupta, G. Prakash, Beena Prakash, V. Senthil for
the Respondent.
c
The Judgment of the Court was delivered by
R.V. RAVEENDRAN, J. 1. Leave granted.
2. This appeal relates to the scope of an appeal against
an appellate order under section 12A of the Kerala Forest Act, D
1961 ('Act' for short). The State Go.vernment issued a
notification under section 4 of the Travancore Forest Regulation
II of 1068 ME proposing to declare certain lands including the
disputed lands as revenue forest. The appellant's predecessor
in title filed a written statement before the Forest Settlement E
Officer under section 6 of the Act in (claim case No.2/1955)
claiming title to the disputed lands, which formed part of the
proposed reserve forest. The .:orest Settlement Officer by
common order dated 14.11.1969 rejected his claim inter a/ia
holding that the notified areas were lands at the disposal of the
F
government and the government was entitled to constitute the
same as a reserve forest. Feeling aggrieved the appellant's
predecessor filed an appeal against the order of the Forest
Settlement Officer under section 11 of the Act. The appeal was
allowed by the first Additional District Judge, Ernakulam by G
common judgment dated 23.6.1980 holding that the Royal Neet
of 1928 ME to which the appellant traced back his title was a
genuine document and the notification issued by the
Government in respect of the proposed reserve forest was
without jurisdiction.
H
850 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 3. The State Government filed an appeal against the said
appellate judgment before the High Court under section 12A
of the Act. (MSA No.1/1981). The High Court allowed the
second appeal and reversed the judgment of the District Judge.
The order of the High Court was challenged by the appellant.
B This Court by order dated 25.11.2003 allowed the civil appeal
filed by the appellant and remanded the matter to the High Court
for fresh consideration, with the following observation :
" ... some decisions have also been referred, to that the
jurisdiction under Section 12A of the Act is akin to Section
c 100 C.P.C. We feel that since the matter is fit to be
remanded for fresh decision this question as raised may
also be better canvassed before the High Court for its
consideration."
D 4. When the matter was pending before the High Court on
remand, the appellant (who is the 33rd respondent in the said
appeal) filed an application (IA No.955/2005) praying that the
High Court be pleased to formulate the substantial questions
of law before proceeding with the hearing of appeal. He
E contended that the appeal under section 12A was a second
appeal; that a second appeal was available only if the case
involved any substantial question of law and was governed by
the provisions of section 100 of the Code of Civil Procedure
('Code' for short); and that the High Court should therefore,
F before hearing the second appeal, formulate the questions of
law involved in the appeal. The High Court by the impugned
order dated 23.3.2007 dismissed the said application. The
High court held that section 12A of the Act did not provide for
a "second appeal", but only provides for an appeal against an
G appellate order and therefore the question of importing the
requirements of section 100 of the Code into such an appeal
did not arise; that the intention of the legislature in enacting
section 12A of the Act, granting a right of appeal against an
order passed by the District Court under section 11 of the Act,
H
JAMES JOSEPH v. STATE OF KERALA 851
[R.V. RAVEENDRAN, J.]
was not limited to substantial questions of law; and therefore A
the question of formulating any substantial questions of law
before hearing the appeal did not arise.
5. The said order of the High Court is challenged in this
appealby special leave. The appellant contends that an appeal
B
under section 12A of the Act is a 'second appeal'; that a second
appeal is available only in regard to questions of law and not
in regard to any question of fact; that whenever there is a
second appeal from a District Court/Civil Court to the High
Court, such second appeal will be governed by section 100 of
the Code and it will be maintainable only if it involves a C
substantial question of law; and that where the High Court is
satisfied that the second appeal involves any substantial
questions of law, it should formulate the said questions of law.
Questions for considerations D
6. On the contentions raised, the questions that therefore
arise for our consideration in this appeal are :
(i) Whether an appeal under section 12A of the Kerala
Forest Act, 1961 against an appellate order under section 11 E
of the said Act, would lie only if it involves a substantial question
of law?
(ii) If so, whether the Memorandum of appeal shall have
to state the substantial question of law involved in the appeal F
and whether the High Court is bound to formulate the substantial
question/s of law, while admitting the appeal or before posting
the appeal for hearing.
The relevant legal provisions
G
7. The answers to the questions raised depend upon the
scheme of chapter II of the Act relating to Reserved forests. The
relevant portions of Sections 4, 5, 6, 8, 9, 11, 12A and 83 of
the Act are extracted below :
H
852 SUPREME COURT REPORTS (2010] 10 S.C.R.
A "4. Notification by Government.- Whenever it is
proposed to constitute any land a Reserved Forest, the
Government shall publish a notification in the Gazette- x x
x
[c] appointing an officer {hereinafter called the Forest
B Settlement Officer) to inquire into and determined the
existence, nature and extent of any rights claimed, by or
alleged to exist in favour of any person in or over any land
comprised within such limits, or to any forest produce of
such land and to deal with the same as provided in this
c Act."
"5. Suits barred.- Except as hereinafter provided, no Civil
court shall between the dates of publication of the
notification under section 4, and of the notification to be
D issued under section 19, entertain any suit against the
Government to establish any right in or over any land, or
to the forest produce of any land, included in the· notification
published under section 4."
"6. Proclamation by Forest Settlement Officer.-
E
(1) When a notification has been issued under section 4,
the Forest Settlement Officer shall publish in the Gazette
and at the headquarters of each Taluk in which any portion
of the land included in such notification is situate, and in
F every town, village and headquarters of Panchayats in the
neighbourhood of such land a proclamation.
{a) specifying, as nearly as possible, the situation and
limits of the land proposed to be included within the
Reserved Forest.
G
(b) setting forth the substance of the provisions of
section 7,
(c) explaining the consequences which as hereinafter
H provided will ensure on the reservation of such forest, and
JAMES JOSEPH v. STATE OF KERALA 853
[R.V. RAVEENDRAN, J.]
(d) fixing a period of not less than three and not A
exceeding six months from the date of publishing such
proclamation in the gazette, and requiring every person
claiming and right referred to in section 4 either to present
to such Officer, within such period, a written statement
specifying or to appear before him within such period and B
state, the nature of such right and in either case, to
produce, all documents and other evidence in support
thereof.
(2) The Forest Settlement Officer shall also serve a C
notice to the same effect on every known or reputed owner
or occupier of any land included in or adjoining the land
proposed to be constituted a Reserved Forest or on his
recognized agent or manager. Such notice may be sent
by registered post."
D
"8. Inquiry by Forest Settlement Officer.-
(1) The Forest Settlement Officer shall inquire into all
claims made under section 6 recording all statements and
the evidence in the manner prescribed by the Code of Civil
E
Procedure for appealable cases.
(2) He shall, at the same time, consider and record any
objection which the Forest Officer, if any, appointed under
section 4 to attend at the inquiry on behalf of the
Government, may make to any such claim. F
(3) He may also inquire into and record the existence
of any rights referred to in section 4 and not claimed in
answer to the notice issued under section 6, so far as they
are ascertainable from the records of the Government and G
the evi.dence of any person likely to be acquainted with the
same.
9. Powers of Forest Settlement Officer.- For the
purpose of such inquiry, the Forest Settlement Officer may
H
854 SUPREME COURT REPORTS (2010] 10 S.C.R.
A exercise the following powers, namely:-
(a) the power to enter by himself or to authorize any
officer to enter upon and land, and to survey, demarcate
and make a map of the same; and
8 (b) the powers of a Civil Court in the trial of suits."
"11. Appeals from the Orders of Settlement Officer.-
(1) Where a claim is rejected wholly or in part, the claimant
may, within ninety days from the date of the order prefer
c an appeal to the District Court in respect of such rejection
only. The time taken for obtaining copies of the order
appealed against shall be excluded in computing the
period of ninety days.
D (2) Whenever a claim is admitted in the first instance wholly
or in part, a like appeal may be preferred on behalf of
Government by the Forest Officer appointed under section
4, or other person generally or specially empowered by the
Government in this behalf."
E
"12A. Appeal to the High Court-
(1) The Government or any person objecting to any order
of the District Court in an appeal under section 11 may,
within a period of ninety days from the date of that order,
F appeal against such order to the High Court:
xxxxx
83. Decision or order of Forest Settlement Officer
to have the effect of District Court decrees.- Any
G
decision or order passed by a Forest settlement Officer
under this Act and any order passed in appeal there from
shall be enforceable by the District Court within whose
jurisdiction the land is situated as if it were a decree
passed by such District Court under the Code of Civil
H
Procedure, 1908.
JAMES JOSEPH v. STATE OF KERALA 855
[R.V. RAVEENDRAN, J.]
8. The following hierarchical structure in regard to appeals A
emerges from the provisions of the Act :
(a) The claims to any land proposed to be included in the
reserved forest under the Act, are inquired into and determined
by the Forest Settlement Officer;
B
(b) If the claims are rejected an appeal lies to District Court
at the instance of the claimant and if the claim is admitted, an
appeal lies to the District Court at the instance of the State
Government.
c
(c) Either the State Government or any person objecting
to any order of the District Court in an appeal under section
11 of the Act can file an appeal against the appellant order, to
the High Court.
9. Section 12A does not use the words "second appeal".
D
It provides that an appeal would lie against an appellate order
un.der section 11 to the High Court. The word 'appeal' is not
defined either under the Act or under the Code. Black's Law
dictionary, (7th edn.) defines an appeal as "a proceeding
undertaken to have a decision reconsidered by bringing it to a E
higher authority."
10. The classic definition of an appeal in Chappan v.
Moidin Kutti [ ILR (1899) 22 Madras 68], by a Full Bench of
the Madras High Court, adopted by this Court, in Tirupati Balaji F
Developers (P) Ltd. v. State of Bihar [2004 (5) SCC 1], is as
follows:
"Appeal implies in its natural and ordinary meaning the
removal of a cause from any inferior court or tribunal to a
superior one for the purpose of testing the soundness of G
decision and proceedings of the inferior court or tribunal.
The superior forum shall have jurisdiction to reverse,
confirm, annul or modify the decree or order of the forum
appealed against and in the event of a remand the lower
forum shall have to rehear the matter and comply with such H
856 SUPREME COURT REPORTS [2010] 10 S.C.R.
A directions as may accompany the order of remand. The
appellate jurisdiction inherently carries with it a power to
issue corrective directions binding on the forum below ....
An appeal is a process of civil law origin and removes a
cause, entirely subjecting the facts as well as the law, to
B a review and a retrial."
(emphasis supplied)
11. In Hari Shankar v. Rao Girdhari Lal Chowdhury [1962
Supp. (1) SCR 933], this court held:
c
"A right of appeal carries with it a right of rehearing on
law as well as fact, unless the statute conferring the right
of appeal limits the rehearing in some way as, we find,
has been done in second appeals arising under the Code
of Civil Procedure."
D
(emphasis supplied)
' '
12. In Shankar Ramchandra Abhyanka; v. Krish((a}i
Dattatreya Bapat [1969 (2) SCC 74], this court referred to the
E statement in Story on Constitution (of United States), Vol. 2,
Article 1761 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. The appellate
jurisdiction may be exercised in a variety of forms and,
F indeed, in any form in which the Legislature may choose to
prescribe. 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.
13. In Sri Raja Lakshmi Dyeing Works v. Rangaswamy
G Chettiar [AIR 1980 SC 1253], this court held :
"Ordinarily, appellate jurisdiction involves a rehearing, as
it were, on law as well as fact and is invoked by an
aggrieved person. Such jurisdiction may, however, be
limited in some way as, for instance has been done in the
H
JAMES JOSEPH v. STATE OF KERALA 857
[RV. RAVEENDRAN, J.]
case of second appeal under the Code of Civil Procedure, A
and under some Rent Acts in some States."
This Court thereafter proceeded to explain the scope of
revisional jurisdictional and then concluded that the question of
the extent of appellate or revisional jurisdiction has to be
8
considered in each case with reference to the language
employed by the statute."
14. Section 100 of the Code is a classic example of
limiting the jurisdiction in an appeal. It specifically provides that
the second appeal will be available only where there exists c
substantial question of law. Some enactments do not specify
that the second appeal will be restricted to substantial
questions of law, but incorporate section 100 of the Code by
reference, in regard to appeals from appellate orders. Section
18(1) of the Telecom Regulatory Authority of India Act, 1997 is o
an example:
"18. Appeal to Supreme Court - (1) Notwithstanding
anything contained in the Code of Civil Procedure, 1908
(5of1908) or in any other law, an appeal shall lie against
any order, not being an interlocutory order, of the Appellate E
Tribunal to the Supreme Court on one or more of the
grounds specified in section 100 of that Code."
Some other statutes have provisions in regard to appeals from
appellate orders placing specific limitations on the extent and
F
scope of the appellate jurisdiction by providing that a second
appeal will lie only if it involves substantial questions of law or
questions of law, without reference to section 100 of the Code.
We may by way of illustration, refer to the following :
Section 260A of Income Tax Act, 1961. G
"Appeal to High Court.
260A. (1) An appeal shall lie to the High Court from every
order passed in appeal by the Appellate Tribunal, if the
High Court is satisfied that the case involves a substantial H
858 SUPREME COURT REPORTS [2010] 10 S.C.R.
A question of law.
(2) The Chief Commissioner or the Commissioner or an
assessee aggrieved by any order passed by the Appellate
Tribunal may file an appeal to the High Court and such
appeal under this sub-section shall be -
8
(a) filed within one hundred and twenty days from the date
on which the order appealed against is received by the
assessee or the Chief Commissioner or Commissioner;
(b) [omitted]
c
(c) in the form of a memorandum of appeal precisely
stating therein the substantial question of law involved.
(3) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate
D
that question.
(4) The appeal shall be heard only on the question· so
formulated, and the respondents shall at the hearing of the
appeal, be allowed to argue that the case does not involve
E 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
F satisfied that the case involves such question.
(5) The High Court shall decide the question of law so
formulated and deliver such judgement thereon containing
the grounds on which such decision is founded and may
G award such cost as it deems fit.
(6) The High Court may determine any issue which -
(a) has not been determined by the Appellate Tribunal; or
(b) has been wrongly determined by the Appellate Tribunal,
H
JAMES JOSEPH v. STATE OF KERALA 859
[R.V. RAVEENDRAN, J.]
by reason of a decision on such question of law as is A
referred to in sub-section (1).
(7) Save as otherwise provided in this Act, the provisions
of the Code of Civil Procedure, 1908 (5 of 1908) relating
to appeals to the High Court shall, as far as may be, apply
in the case of appeals under this section. 8
Section 15Z of the Securities and Exchange Board of
India Act, 1992
15Z. Appeal to Supreme Court.- Any person aggrieved
by any decision or order of the Securities Appellate C
Tribunal may file an appeal to the Supreme Court within
sixty days from the date of communication of the decision
or order of the Securities Appellate Tribunal to him on any
question of law arising out of such order .........."
D
15. Some enactments impliedly incorporate the provisions
of section 100 of the Code. In Chuni~al Vitha/ Das vs.
Mohan/al Motilal Patel - (1966) $upp SOR 180, this court
dealt with such a provision contained in settion 28(1) of the
Saurashtra Rent Control Act, 1951, extracted below : E
"Notwithstanding anything contained in any law, but subject
to the provisions of the Provincial Small Cause Court Act,
as adapted and applied to the State of Saurashtra, an
appeal shall lie from a decree or order made by a Civil
Judge or a Munsiff exercising jurisdiction under section F
27 to the District Court and a second appeal to the High
Court."
It was contended by the appellant-tenant therein that an
appellate court is competent to examine the correctness of the G
decision appealed from on the ground that the decision is
erroneous in point of law or fact, and in the absence of any
express provision to the contrary, restrictions imposed on the
power of the High Court under one statute cannot be imported
merely because of similarity of nomenclature, when exercising
H
860 SUPREME COURT REPORTS [2010] 10 S.C.R.
A jurisdiction under another statute unless those restrictions are
imposed by express enactment or necessary intendment. It was
further contended that as no restriction was imposed upon the
power of second appeal under section 28 of the Rent Act, the
High Court was competent and indeed bound to entertain all
B objections to the correctness of the judgment including those
relating to questions of fact. This court negatived the said
contention. This court held that a second appeal under section
28 of the Saurashtra Act can be entertained by a High Court
within the limits prescribed by section 100 of the Code of Civil
C Procedure and it is not open to the parties to demand re-
appraisal of the evidence by the High Court. This Court held
that the scheme of Saurashtra Act did not confer any special
jurisdiction upon the courts described therein, but it only
intended to provide for a second appeal in terms of section 100
of the Code. This Court held that the Saurashtra Act merely
D declared that a second appeal will lie to the High Court against
decrees or orders passed by the .courts exercising jurisdiction
under section 27, but thereby the essential character of a
second appeal under the Code was not altered and the
procedure in the trial of suit, applications and proceedings
E under the Act, was the procedure prescribed by the Code of
Civil Procedure and therefore it had to be held that the
legislature intended to confer a right of second appeal subject
to the restrictions imposed by section 100 of the Code.
F 16. We may therefore formulate the following principles
with reference to appeals :
(i) An appeal is a proceeding where an higher forum
reconsiders the decision of a lower forum, on questions of fact
and questions of law, with jurisdiction to confirm, reverse, modify
G the decision or remand the matter to the lower forum for fresh
decision in terms of its directions.
(ii) The appellate jurisdiction can be limited or regulated
by the legislature and its extent has to be decided with
H reference to the language employed by the statute conferring
JAMES JOSEPH v. STATE OF KERALA 861
[R.V. RAVEENDRAN, J.]
the appellate jurisdiction. A
(iii) The width of jurisdiction or the limitations on jurisdiction
with reference to an appeal, does not depend on whether the
appeal is a first appeal or a second appeal, but depends upon
the limitations, if any, placed by the statute conferring the right
8
of appeal.
(iv) If the Legislature's intention is to limit the jurisdiction
in an appeal, it may indicate such limits in the provision
providing for appeal. Alternatively, it may expressly or impliedly
incorporate the provisions of section 100 of the Code, into the C
provision for appeals.
(v) Generally statutory provisions for appeals against
original orders or decrees (that is, first appeals) will not have
any limitations and therefore rehearing on both law and fact is
contemplated; and statutory provisions for appeals against 0
appellate orders (that is, second appeals) will be restricted to
questions of law. But such restriction is not on accountof any
legal principle that all second appeals should always be with
reference to questions of law, but would depend upon the
wording of the statute placing the restrictions upon the scope E
of second appeal.
(vi) Where the statute does not place any limitations or
restrictions in regard to the scope and width of the appeal, it
shall be construed that the appeal provides a right of rehearing F
on law as well as facts. If the Legislature enacts a self
contained provision for second appeals, without any limitation
upon the scope of the second appeal and excludes the
possibility of reading the provision of section 100 of the Code,
into such provision, then, it will not be permissible to read the G
limitations of section 100 of the Code into the special provision.
17. We may now examine the scope of section 12A of the
Act with reference to the above principles. For convenience we
have juxtapositioned section 100 of the Code with section 12A
of the Act, to ascertain the scope of section 12A of the Act. H
862 SUPREME COURT REPORTS [2010] 10 S.C.R.
A Section 12A of the Act. Section 100 of the Code -
"Appeal to the High Court".- "Second appeal".-
(1) The Government or any (1) Save as otherwise
person objecting to any expressly provided in the bod)
order of the District Court in of this Code or by any othe1
B
an appeal under section 11 law for the time being in force
may, within a period of ninety an appeal shall lie to the Higt
days from the date of that Court from every decree
order, appeal against such passed in appeal by any Cour
order to the High Court: subordinate to the High Court
c if the High Court is satisfiec
Provided that High Court may
that the case involves a
admit an appeal preferred
substantial question of law.
after the expiration of the
period of ninety days
D aforesaid if it is satisfied that
the appellant had sufficient
cause for not preferring the
appeal within the said
period.
E (2) An appeal may lie unde
this section from an appellate
decree passed ex parte.
(2) An appeal under sub- (3) In an appeal under this
F section (1) shall be in the section, the memorandum o
prescribed form and shall be appeal shall precisely state the
verified in the prescribed substantial question of la!A
manner and shall be involved in the appeal.
accompanied by a fee of one
hundred rupees.
G
(3) On receipt of an appeal (4) Where the High Court is
under sub-section (1 ), the satisfied that a substantia
High Court may, after giving question of law is involved in
the parties a reasonable any case, it shall formulate tha
H question.
JAMES JOSEPH v. STATE OF KERALA 863
[R.V. RAVEENDRAN, J.]
A
opportunity of being heard, (5) The appeal shall be heard
either in person or by a on the question so formulated
representative:- and the respondent shall, at
the hearing of the appeal, be
(a) confirm or cancel the
allowed to argue that the case
order of the District Court 8
does not involve such
appealed against; or
question:
(b) set aside such order and
remand the case to the Provided that nothing in this
District Court for decision sub-section shall be deemed
after such further enquiry as to take away or abridge the c
may be directed; or power of the Court to hear, for
(c) pass such other orders as reasons to be recorded, the
it may think fit. appeal on any other
substantial question of law,
not formulated by it, if it- is D
satisfied that the case involves
·such question.
(4) Every order passed in
appeal under this section E
shall be final.
(5) Any order passed by the
High Court under this section
shall be enforceable by the F
District Court within whose
jurisdiction the land is
situated, as if it were a
decree passed by such
District Court under the Code
G
of Civil Procedure, 1908
(Central Act 5 of 1908.)
The form of memorandum of Appeal referred to in section
12A(2) of the Act is prescribed by the Kerala Forest (Appeal
H
864 SUPREME COURT REPORTS [2010] 10 S.C.R.
A to the High Court) Rules 1981. The said form is extracted below
"Form Of Appeal
[See Rule 2]
B (1) Name or names (with full address/addresses
of the appellanVappellants.
(2) Name or names (with full address/
addresses) of the person/persons who shall
c be impleaded or brought on record as
respondenVrespondents.
(3) Statement of facts.
(4) Grounds of Appeal.
D
(5) Prayer.
Signature
Appellant(s)/Counsel for Appellant
The facts stated above are true to the best of my
E knowledge and belief.
Signature
Appellant(s)/Counsel for Appellant
18. The following differences in the two provisions
F demonstrate that section 12A of the Act is intended to be self
contained in so far as appeals under the Act to the High Court,
deliberately deviating from the provisions of section 100 of the
Code:
(i) Sub-sections (1 ), (3) and (4) of section 100 of the Code
G provide specifically that the second appeal would lie only where
substantial questions of law are involved. On the other hand,
sub-section ( 1) of section 12A provides for an appeal against
the order of the appellate authority under section 11 of the Act
would lie, without specifying any limitation or restriction.
H
JAMES JOSEPH v. STATE OF KERALA 865
[R.V. RAVEENDRAN, J.]
(ii) Section 100 of the Code begins with the words "Save A
as otherwise expressly provided ... by any other law". This
means that a second appeal can be to a court or Tribunal other
than the High Court, or that second appeal need not be
restricted to substantial questions of law, if so provided by other
law. Section 12A of the Act is one such provision of other law, B
expressly providing otherwise.
(iii) Where the Act wants to adopt the provisions of the
Code, it expressly provided so. For example, sub-section (5)
of section 12A and section .83 expressly refer to and make
applicable the provisions of the Code in other contexts. But C
when it comes appeals to High Court, section 12A of the Act
deliberately chalks a different path from section 100 of the
Code.
(iv) While sub-section (3) of section 100 of the Code D
requires the appellant to precisely state the substantial question
of law in the memorandum of appeal, sub-section (2) of section ,
12A of the Act read with Rule 2(1) and the form of appeal under
the Kerala Forest (Appeal to the High Court) Rules 1981, does
not require the appeal memorandum to state any questions of E
law, substantial or otherwise. The provisions of sub-section (3)
of section 12A also clearly reiterates by implication that the
jurisdiction of the High Court u. ,Jer section 12A is not subject
to any limitations.
19. In view of the above, the High Court was right in holding
F
that the appeal. under section 12A of the Act is available both
in respect of questions of fact and questions of law. Therefore
there is no need for the High Court to frame any substantial
question of law. The appeal is dismissed as having no merit.
G
N.J. Appeal dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "appeal"Sign in to search